You may not be aware, but many trust and estate disputes in California are resolved through mediation as opposed to being resolved in Superior Court. Probate mediation has many benefits including the opportunity for customized resolution, lower cost, and the chance to avoid the trial which is often unpredictable. If the parties can agree on mediation, the chances of success are usually pretty good. Here is what you need to know about the probation mediation process in California.
What are the Some Common Issues Leading to Disputes?
There are essentially four legal grounds for challenging the validity of a will: (1) it was not signed properly, (2) there is a question about testamentary capacity, (3) there is a suspicion of undue influence in executing the will, and (4) the testator was fraudulently induced into creating the will or including certain provisions. Each of these grounds can be difficult to prove. Contesting a will can also be a very expensive court process, yet that fact does not discourage everyone.
With regard to trusts, the most common situation that leads to litigation is when there is a question as to whether the person who created the trust lacked the legal capacity at the time. In that case, there will likely be a need for litigation to determine whether the trust is actually valid. The same is true if there are questions as to whether the person was coerced into either including certain provisions in the trust or creating the trust entirely. If there was any undue influence or improper persuasion that may have inhibited the trust maker’s free will, then litigation will be required.
What is Involved in Mediation?
Before you can decide whether mediation will be helpful, you need to understand what mediation is and what is involved in the process. Mediation is a confidential, non-binding proceeding where a neutral person serves as the mediator and facilitates a conversation between the parties who are in dispute. The goal is to help the parties reach a mutually agreeable resolution of all or some of their disputes.
Understand that the mediator does not resolve the disputes or make any decisions about whose position is correct. That would be the court’s job. Instead, mediation is a flexible and informal process that can often reduce the time and expense of a formal court proceeding.
When Should Parties Attempt Mediation?
One of the most common reasons that mediation is attempted is when the emotions of family members are creating a barrier to communication. When disputes involve estates, trusts, conservatorships and/or guardianships, mediation can be effective as mediators can assist the parties in communicating their concerns constructively.
When is the Probate Mediation Process Not Recommended?
There are some situations where one of the parties involved is simply unwilling compromise. Mediation is most often ineffective in those cases. The same is true when one party has a substantial advantage over the other in terms of their position or power. If there is a history of abuse or coercion between the parties, mediation may not be as effective.
What is the Role of the Mediator and How do I Select One?
All mediators are expected to be impartial intermediaries whose role is to assist the parties in reaching an agreement or settlement of the legal claims. The mediator cannot impose a settlement, but instead guides the parties in considering various settlement options. The probate court can provide a list of Probate Mediators but parties are always free to select a mediator from some other means. Your probate attorney can help you with selecting a mediator.
How to Prepare for the Probate Mediation Process
Your probate attorney will help you to prepare for the probate mediation process by discussing the important issues in your case and the options you believe will resolve the relevant disputes. As your attorney will explain to you, mediation is confidential and non-binding. You will need to be ready to express your position and willing to listen to the position of the other parties to the dispute. Civility and mutual respect are expected from all parties. Being hostile or argumentative will not encourage parties to agree.
If you are wondering who will be present at the mediation, all parties involved in the dispute and their attorneys or anyone else who has full authority to settle the case are required to attend, unless the court excuses someone for good cause.
When Should I Consider Mediation?
Mediations can occur at any time after a trust or estate dispute arises. That could be before a formal motion or complaint has been filed in court until just before a trial begins. Mediation may even be appropriate before the trial has ended. The only requirement is that the legal dispute has not yet been resolved by the courts and the parties are ready to come to an agreement and sign a document certifying as such.
Join us for a free seminar today! If you have questions regarding estate planning, trust contests, or any other trust administration issues, please contact the Schomer Law Group either online or by calling us in Los Angeles at (310) 337-7696, and in Orange County at (562) 346-3209.
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