Mediation often comes up as 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?
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 for the parties or force a settlement. 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.
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.
Although mediation is more informal of a process than litigating in probate court, you should still seek representation by a probate dispute attorney for your estate mediation or settlement conference. In Part 2 of this article, we’ll explain why hiring a competent estate litigation attorney is essential, even if your case is headed to mediation or a settlement conference.