By Daphne Reaume on September 19th, 2014 in
Mediation is an option when an estate dispute or probate court litigation puts family members at odds. But what is mediation, and can it help settle a contentious case?
What is Probate Settlement Conference or Mediation?
Mediation is a type of refereed negotiation, where a mediator (the “referee”) helps the parties to the dispute try and reach an agreement. It’s an informal process that takes place outside the courtroom. The mediator doesn’t have the authority to make a decision who wins or who loses. The facilitator cannot force the parties to settle. The mediator is there to keep the discussion moving forward, to offer his insight and perspective on the issues in dispute and to ensure that everyone has an opportunity to participate in the process.
A settlement conference is basically the same as a mediation. Typically, the parties pay for the mediator’s services, whereas the settlement conference judge is a volunteer or judicial officer who presides over the settlement conference at no charge to the parties.
Although a court may order the parties to attend a mediation, settlement during a mediation is entirely voluntary. If you don’t like the deal the other side is offering, no one may force you to take it, and you can still have your day in court. The beauty of settlement is that you maintain control over the result. If you don’t agree then there is no settlement.
But that also means that the other side can’t be forced to take a fair deal that you’re offering them. Even if you are entirely in the right in the dispute, the mediator can’t force the other side to accept your terms.
Rules for Mediations and Settlement Conferences
Fortunately, courts and state legislatures have recognized the value of mediation in reducing the number of cases that make their way to trial. To encourage people to use mediation and other dispute resolution procedures, states have made laws that typically don’t allow what’s said in a mediation to be used by either party in court. That’s supposed to make it easier for everyone involved to speak freely without worrying that their words or settlement offers will later be used against them.
For example, let’s say you have a claim for $1 million, but for whatever reason you offer to settle for $500,000. If the case does not settle and you go to trial and still ask for $1 million, the other side typically cannot tell the judge that you offered to accept $500,000 in settlement to show that you really only think you are entitled to $500,000.
Although mediation is more informal than litigating in probate court, you should still seek representation by a probate dispute attorney for your estate mediation or settlement conference.
Because a mediator doesn’t have the authority to force anyone to settle, sometimes the law isn’t the determining factor in a mediation in the same way it is in court proceedings. The parties in a mediation can request and agree upon terms that would never be imposed as a judgment in court, no matter who wins the case. This means that your rights can be trampled on in mediation. The mediator may not do anything to stop that from happening. Indeed, the mediator does not represent any of the parties and typically will not provide legal advice to the parties.
Seek Help from an Experienced Probate Attorney
Representation by a probate dispute attorney is even more important when one side has more power or money than the other. When money is running short, it can be too easy to accept an unfair settlement, and the mediator may not stop an unfair settlement from being accepted.
During a probate case mediation, you need an experienced probate dispute attorney in your corner to ensure that your rights are protected. With the right representation, probate mediation can help you reach a satisfying result in your probate dispute. And if mediation doesn’t produce a settlement you can live with, your attorney will be ready to take your case to court, where a judge can force the other side to honor your rights.
If you’re involved in a probate dispute, you would be well-advised to seek the counsel of an experienced, aggressive attorney who will make sure that your rights aren’t ignored. The probate attorneys at Berk Law Group, P.C. are strong negotiators that can assist you in evaluating your rights and claims and attempt to negotiate a settlement with which you feel comfortable. If not, our attorneys are tough advocates that will be ready, willing and able to present your case in Court.