Advantages of Probate Mediation
Probate is the court-supervised process of administering a deceased person’s estate after their death. Ohio probate courts are also involved in appointing guardians for people who lack the capacity to manage their own affairs. These processes can be emotionally charged, and it is not uncommon for family members to have disputes about how estate business should be handled or who should be appointed administrator or guardian. These disputes have historically been resolved by litigation in the probate court.
Probate litigation may result in a definitive answer about the issue at hand, but probate matters are often also about conflicts that a court cannot effectively address. In recent years, probate mediation has become more popular as a way of reaching deeper, more lasting resolutions to the issues involved in probate disputes.
What is Probate Mediation?
Probate mediation is a form of alternative dispute resolution in which a neutral third party, a trained mediator, helps parties to a probate dispute reach a mutually agreeable resolution. Some people refer to the process as “probate court mediation,” but that is inaccurate; probate mediation takes place outside the courtroom.
Typically, the mediator begins the process by meeting together with all parties to a dispute and their attorneys, if any. (In highly contentious cases, there may be no joint meeting at this point.) The mediator describes the probate mediation process and any ground rules. Each side is given an opportunity to present their perspectives on the situation at issue without interruption. The mediator will frame the issues that need to be resolved. Then the parties and their counsel move to separate rooms and the mediator moves back and forth between them. The parties are able to privately convey concerns and possible resolutions to the mediator in these “caucus” sessions.
The mediator moves back and forth between parties. He or she does not share with one party what another party said in confidence, but uses the information gathered to facilitate the development of possible resolutions. If the parties are able to reach agreement, the mediator can draw up a written agreement that can be submitted to the probate court for entry as an order in the case.
This probate mediation process may vary somewhat according to the parties’ needs, but the basics are the same. The mediator’s role is not like that of a judge; he or she does not make decisions for the parties. Rather, the probate mediator guides the parties to identify their interests and needs and come up with solutions that are agreeable to everyone.
What Kind of Probate Disputes Can Be Mediated?
Nearly any type of dispute that could be litigated in a probate court can be resolved through probate mediation. Such disputes include:
- Whether the will that has been submitted to probate was validly executed
- Whether there is a new will that supersedes the one that was submitted to the court
- Whether there was fraud or undue influence in the execution of the will
- Whether an executor can or should take certain actions on behalf of the estate
- Whether a guardian can or should take certain actions on behalf of a ward and their estate
- Disputes about the value of an estate
- Who should be appointed guardian of a child or incapacitated adult
- Allegations of executor misconduct
- Allegations of guardian misconduct
- Accounting and tax issues
Parties to disputes in court routinely go through settlement negotiations. Mediation is simply a form of settlement negotiation that does not require a lawsuit to be filed. However, mediation can take place during a lawsuit as well as before one becomes necessary.
Pros and Cons of Probate Mediation
Mediation offers a number of advantages for parties to a probate dispute:
Litigated disputes over a deceased person’s estate take place in open court and become part of the public record. Guardianship hearings are more private, but testifying about these personal matters in court can still be very stressful. Records of the mediation process are private; only the agreement, if it becomes part of a court order, becomes public record.
Cost and Speed
Mediation of probate disputes is typically quicker than resolving them through the court system, and involves less attorney involvement (which means lower legal fees). This preserves more of the estate for the intended beneficiaries.
Control and Flexibility
When parties mediate a probate dispute, they have more control over potential resolutions than they would if a court made the decision. They also have more flexibility to come up with creative solutions that a court would not impose. As a general rule, people are more satisfied with, and more willing to abide by, solutions they were involved in reaching.
Preservation of Family Relationships
Probate disputes are not like impersonal disputes over business contracts. They involve family relationships and history, and are typically about much more than money. Mediation is a much less adversarial process than litigation. While it is not family therapy, it is often possible to address some of the interpersonal issues underlying a probate dispute. As a result, mediation may help to prevent or lessen rifts between family members that litigation would create or deepen.
Of course, there are some disadvantages to mediation. Because the process is voluntary, not all parties may be willing to participate. Parties who do agree to mediate may decide to withdraw from the probate mediation process if they don’t like how it is unfolding. And if there are power imbalances among the parties, one or more parties may feel pressured into agreeing to a resolution that does not really work for them.
Probate mediation is not a perfect option in all cases, but it is an excellent way to resolve disputes much of the time. If you have questions about the mediation process in probate matters, or need to find a probate mediation attorney, we invite you to contact our law office.