Probate, or the process of proving the validity of a will, often gives rise to disputes between family members. However, such conflicts do not have to escalate into lengthy court battles and broken relationships. Many California probate court judges require disputing parties to go through mediation first. This conflict resolution method has repeatedly proven effective in reaching peaceable settlements.
What Is Probate Mediation?
Mediation is a non-binding, out-of-court method of resolving legal disputes. It involves an independent, neutral third party called the mediator, who facilitates discussions between the disputing parties.
The mediator guides both parties to consider various settlement options, and also helps them communicate more effectively with each other. She or he, however, cannot make a decision or impose a settlement. The disputing parties themselves must reach an agreement.
In California, disputing family members may voluntarily go through probate mediation, or it may be ordered by a judge. Some courts, such as in San Diego County, offer a free mediation program, but many families opt to hire a professional mediator on their own to keep the process entirely private and confidential.
Can Mediation Resolve Our Probate Issue?
A large majority of mediated cases are settled before they proceed to trial. There are certain situations, though, where mediation may not work.
In general, probate mediation can be helpful if settlement is hindered by emotions and poor communication. For instance, family members may be distressed over their loved one’s will or trust, that their discussions with each other tend to break down. A qualified mediator can help them overcome this barrier.
Mediation can also be valuable when there is some confusion about the will or trust. Perhaps one party feels that the other had undue influence on the creation of the document, or that an amendment was made improperly. Mediation helps clarify these concerns, minimizing friction between the parties.
Mediation is not recommended if there is a significant imbalance of power between the parties, or if there was a history of abuse or coercion between them.
How Does The Mediation Process Work?
In a typical probate mediation process, the disputing parties don’t spend much time in the same room. The mediator may want to meet with both of them together initially to present the issue and the process. Then, the mediator will confer with each party separately, going back and forth with proposed solutions until there is a common ground. The whole process commonly takes only one day.
How is the mediator selected? Both parties must agree on the choice of mediator. They can choose from the probate court’s list of mediators, or they can look into the private, accredited probate mediators serving the county.
In San Diego County and throughout Southern California, the mediators at Kanter Ostler Mediation can help resolve your probate dispute. Contact us at (619) 304-2244 today.
