PROBATE MEDIATION

I received a few requests to provide some information on probate mediation. 

Probate is the legal term used to describe the administering of a deceased person’s estate with or without a will. Conflicts can arise when heirs and beneficiaries disagree. Probate court judges prefer that parties attempt mediation before a trial is scheduled. In cases involving disputes among family members, the goal is to facilitate an amicable resolution, which can have lasting benefits for the family. 

Attorneys play a significant part in probate mediation. The attorneys provide legal advice to their clients before the mediation, draft a mediation brief and advocate for their clients to protect their rights. 

Such mediators are more likely to be current or retired probate judges or attorneys with expertise in probate law. Nonetheless, the mediator does not act as a judge or decide for the parties. Intead, they facilitate communication and assist the parties in reaching mutually accepted resolutions.

As a generalization, retired judges and attorneys are comfortable using the evaluative style of mediation to express their opinions about proposals under discussion. A retired probate judge may express the opinion that a party’s case would likely not be sustained in trial, which is why some parties appreciate having an evaluative mediator with experience in probate law as their mediator. Other mediators will be more comfortable with the facilitative style, which focuses more on assisting the parties in negotiations and not evaluating nor giving opinions about the issues under discussion.

There is evidence to suggest that probate mediations are more likely to reach agreements than other forms. It’s been estimated that over 90% of probate cases settle before trial, whether by negotiation or mediation.