While every probate dispute is unique, there are some issues that commonly arise. When the validity of a will or trust is contested, one family member or group may accuse other family member or members of undue influence or allege that the grantor lacked testamentary capacity. One family member, or one set of family members, may find themselves pitted against their loved ones in what rapidly deteriorates into a chaotic set of disputes that can be difficult to navigate and resolve in a traditional judicial manner. It can also destroy family relationships in the short-term, long-term, and even forever.
These types of disputes often surface during what is already a highly emotional time for people — the loss of a loved one. Probate disputes may involve ambiguities in a will or trust as well as a sense of unfairness in asset distribution and appointment of various individuals to administer the estate. As an attorney and mediator who both represents clients in probate and trust disputes and mediates these types of cases, I’ve found that resolving these disputes requires not only awareness of legal principles but also an appreciation of the family dynamics at play.
Mediation may offer a useful alternative to traditional litigation for resolving will and trust disputes, especially when sensitive and emotional family matters are involved. Mediation provides a less adversarial process, in a confidential forum resulting in more cost-effective and faster resolutions while hopefully helping to preserve family relationships, or at least minimizing the damage done to them.
Six Reasons to Choose Mediation
Mediation is often a preferred approach for trust disputes for the six following reasons.
1. Privacy/Confidentiality: Court proceedings are a matter of public record.
Probate litigation often involves family secrets and allegations that may be embarrassing to the parties regardless of whether they those allegations are true. Few people want to have their “dirty laundry” aired in a public forum or have their family business be the source of gossip and speculation among those they know. Mediation is a confidential process. This confidentiality encourages the parties to discuss sensitive issues without fear of public scrutiny and may provide a safe setting for underlying motivations to surface.
2. Cost/Efficiency: Litigation is expensive, and the more complicated and complex the matter, the more expensive and time-consuming it is likely to be. The informal nature of mediation often leads to quicker resolution, which is also less expensive, avoiding lengthy court proceedings, discovery, and legal fees.
3. Preservation of relationships: A good mediator can maneuver sensitive family dynamics, helping to preserve long-standing family relationships. Most cases involving will/trust litigation involve family relationships that may already be under strain. These relationships can be severely damaged by prolonged and often acrimonious litigation, especially in trust disputes involving inheritance and other family dynamics. Further, the relationship between fiduciary and beneficiaries may suffer from prolonged litigation. Mediation offers a collaborative approach to these kinds of disputes which can promote communication and potentially repair strained relationships. An effective mediator facilitates open communication and helps parties understand each other’s perspectives. This can lead to a better understanding of the underlying issues and often results in a greater willingness to compromise.
4. Flexibility. Unfortunately, litigation is restricted in two substantial ways. First, litigation results in a zero-sum game, where one party is successful at the expense of the other party. Second, results are limited to legal alternatives. Mediation allows parties to negotiate a solution that meets their specific needs and circumstances. In other words, the parties may reach a result that is outside what would be contained in a typical judgment of a court. Furthermore, the parties may find a resolution that they all perceive as fair, even if not ideal.
5. Control over the outcome: In mediation, parties maintain control over the terms of the process and ultimate agreement. They can negotiate and craft a resolution that addresses their specific concerns and priorities instead of having the court decide what will happen.
6. Less anxiety and stress: The adversarial nature of litigation is emotionally taxing for all involved. Mediation focuses on collaboration and negotiation and can aid in reducing stress and anxiety for all parties involved, including the lawyers.
Choosing mediation in probate and trust disputes can offer a host of advantages and should be considered as a more constructive and effective tool to resolving these kinds of disputes compared to traditional litigation. In fact, mediation should be the preferred dispute resolution method, particularly when preserving family relationships and achieving a mutually acceptable outcome are important goals of the parties.
*Originally published in Missouri In-House Counsel and reprinted with permission.
