Probate mediation is a way for parties involved in probate disputes to voluntarily reach a resolution of a dispute outside of a courtroom setting. A neutral mediator works with the parties to find a compromise that settles the dispute and avoids the uncertainty, cost, and worry involved in probate litigation.Probate mediation is an way for parties involved in probate disputes to voluntarily reach a resolution of a dispute outside of a courtroom setting. A neutral mediator works with the parties to find a compromise that settles the dispute and avoids the uncertainty, cost, and worry involved in probate litigation.
Almost all probate disputes are appropriate for mediation. Probate disputes can include will and trust contests, guardianship and conservatorships, trust and estate administration issues, capacity and undue influence cases, placement disputes, mental health issues and other elder law matters. All of these issues can be mediated.
A probate mediator can be any neutral and disinterested person. In Michigan, we have a comprehensive mediation program to allow both attorneys and non-attorneys to become certified in general mediation and/or elder mediation. A certified mediator typically has over 40 hours of specialized training in dispute resolution. While there are many general mediators who might be helpful in a civil or family dispute, you should consider mediators who are specialized in probate and elder law. These mediators will already be familiar with your type of case and know the law pertaining to your case. This means that you will not have to spend precious time and money educating the mediator about the type of issues and applicable law that are being mediated. Often retired judges will act as mediators. These former judges can be a valuable resource in educating the parties about how their case might be treated at trial.
You can mediate a dispute before it even gets to the courthouse. If you and your family members have problems navigating the future of an aging relative, a probate/elder mediator may offer a great way to plan an agreement between the family without having to go through Probate Court. You can contact a probate attorney or known probate mediator in your area and schedule a mediation or meetings to try to work through any issues in an informal and non-stressful environment.
Even if you have already filed a Probate Court case or are the subject of a court action, you can ask the Probate Court for early mediation. This means that the Court will refer you to probate mediation before you and your family incur significant legal fees and discovery costs. This can be a great option to see if there is a chance of reconciliation before family members or parties become too entrenched in their legal positions.
Sometimes, it may benefit the parties to undergo some discovery prior to mediation. For example, if a trustee is being accused of failing to provide accountings to beneficiaries, the beneficiaries may want to have bank statements, tax returns and other information about the trust finances before mediation. Here, it may benefit the parties to schedule several months of discovery and then have a more meaningful mediation with better information.
It is worth mentioning that the Probate Court is always in favor of alternate dispute resolution. The Court will support multiple mediations if that’s what it will take to settle a dispute. Likewise, the Court will provide time for the parties to mediate up until the day of trial.
There are multiple benefits to probate mediation. In litigation, you are not in control. Instead, a Probate Judge, or a jury, who know very little about the facts of your case are in control of the outcome. With mediation, you and the other parties hold all of the power. You get to decide how to settle the case and can walk away if the outcome does not meet your expectations.
Another consideration is that mediation provides a guaranteed outcome. Even the best attorney cannot guarantee that you will win at trial. At most, you may have an 80% chance and, even then, you can’t know whether the Judge will view the evidence in the same way as you do. More likely, you have a 50% chance at trial. Mediation, however, gives you the power to decide what outcome you will be able to live with to move on from litigation. That certainty has value.
Litigation is often a win-lose outcome without a middle ground. For example, if you or your sibling has filed a Guardianship Petition for your aging parent, the Probate Court will either approve the Guardianship or not. This type of harsh legal outcome could destroy a parent-child relationship. On the other hand, mediation may be a way to provide the protections that you are seeking for your parent without a harsh legal result. A mediation agreement could include such provisions as daily caregivers for your parent’s care and safety and a driver’s assessment to determine if your parent should continue to drive. However, the mediation agreement may stop short of a formal Guardianship, which removes all of your parent’s autonomy. It may be a good compromise for a difficult family situation.
It is also significant that mediation is a private proceeding. If you continue with a lawsuit through to trial, that proceeding is public. Anyone can read the case file and often, the information is available online to all. The public is also allowed to sit in the courtroom during trial. Conversely, a mediation proceeding is not part of the court record and the settlement can also be kept confidential.
Do not underestimate the value of peace of mind that probate mediation can bring. Litigation is a stressful process. If you are in disputes with family members, the family may take sides, which causes more emotional distress. You may have to undergo a lengthy deposition, or your private information may be sought by opposing parties. You are also likely to have to testify at trial. All of this can cause emotional stress. By resolving the dispute outside of the courtroom setting, you can alleviate an enormous amount of stress and move on.
Lastly, mediation may be the best and possibly last opportunity to mend family relationships that have been strained or broken by the dispute. While mediation does not save every family, it is an opportunity for family members to voice their opinions and feelings with a neutral moderator. Sometimes all a family member wants is a chance to be heard. If mediation can work through family issues, that alone is worth undertaking this dispute resolution process.
Mediation does not occur in a courtroom setting. Instead, the idea is to have a neutral and informal place to work through the disputes. Typically, you will go to the mediator’s office. The mediator will have one or more conference rooms. Some mediations work with all of the parties sitting around one table. Family disputes involving a parent with incapacity or declining cognition are often situations where a group mediation might work. In those case, the mediator will let each family member express his or her opinions and feelings about the situation. Sometimes, just letting each family member “vent” hurt feelings will allow the parties to move forward and work on a resolution together. A group mediation is best if there is hope of reconciliation between the parties.
In other cases, the family members or parties have no intention of reconciling and a group mediation would be unproductive. For example, a dispute involving beneficiaries of a trust who have filed an action against the trustee for failure to distribute funds, might be such a case. Here, the mediation may be more productive if the trustee and the beneficiaries are in separate conference rooms. In this case, the mediator will “shuttle” between the rooms talking to each party individually.
The mediation itself is very informal. You will be sitting around a table with your counsel and/or other family members. You do not need to dress formally. Instead, the mediator will want you to be comfortable, so dress casually if you want. The mediator will likely provide drinks and snacks. However, note that mediations can take several hours to all day. Consider eating a full breakfast on the day of mediation. You don’t want to make important decisions about your dispute when you are tired and hungry.
There may be lengthy downtime while the mediator is talking with the other parties and/or their counsel. You can bring a book or something to do while that happens. Most mediators will provide wifi access so that you can use your electronic devices. The mediator will then come back and talk at length with you.
The mediator will discuss the strengths and weaknesses of your side of the dispute. He or she will then work to move the parties closer together to resolve the dispute. If the dispute involves concerns about a parent’s capacity, the mediator might work through various options with family members. He or she may help to create a framework of how the family will address future problems. For example, the mediator might help with a plan that the parent remains at home with a family or outside caregiver during the early stages of dementia. However, the mediator might include an option for placement in a memory care community if the parent’s physician decides that the parent can no longer reside in the home safely.
In cases where a family member caregiver has been financially benefitted by a parent or elder, the mediator might work towards a family plan, where the family member is paid a set amount for caregiving but is not otherwise able to benefit financially from the elder.
In cases where the only issue is money, the mediator will likely move the parties toward a compromise amount. For example, where one sibling benefitted financially from a last-minute change in a parent’s will or change of beneficiary, the other siblings may challenge the changes due to lack of capacity or undue influence. In this case, the siblings want an equal division of the parent’s assets. The mediator will try to reach an amount that the siblings can live with to end their lawsuit.
Once an agreement has been reached, the mediator, or a party’s counsel will draft a mediation agreement. The parties all sign the mediation agreement, which is binding. Once the parties have signed the agreement, the mediator will contact the Probate Court with a mediation status so that the case can be dismissed.
In a case where you have retained a counsel, the lawyer will sit with you for the entire mediation. The mediator might want to conference with counsel from time to time. Your lawyer is there to guide you regarding the law and the risks of litigation. It is common that one or more parties does not have counsel. In that case, the mediator might spend more time with that party to explain the law and process.
Disputes might involve a party who is incapacitated. This is typical in guardianship and conservatorship disputes. In that case, the Court might appoint a Guardian Ad Litem who is an attorney or other professional who acts in the best interests of the incapacitated individual. The Guardian Ad Litem will attend the mediation with, or instead of, the incapacitated individual.
Generally, a mediator will not mind if you bring a spouse, other family member or friend with you. However, the support individual will be asked to leave if he or she disrupts the process. Also remember that while you may want others with you, and they are welcome to express their opinions, the mediator is only interested in your opinion as a party to the dispute.
It is common for a family member to want nothing to do with the other party. This can be due to a family estrangement, hurt feelings, or an abusive history. The mediator will work with you to ensure that you are in separate rooms and the mediator will arrange for you to leave the mediation after the other party has already left. If there is any history of abuse, it is vital that you advise the mediator ahead of the mediation. A history of abuse can result in a power discrepancy that needs to be addressed in order to reach a potential settlement of disputes issues.
Yes, probate mediation is a confidential process. All the parties will be asked to sign a mediation agreement that includes a confidentiality clause. This allows the parties to speak freely without the fear of their statements being later used against them in court.
The cost of probate mediation varies depending on the location, expertise and length of practice of the probate mediator. Typically, the mediator charges for preparation time and the length of the mediation. Often the mediation fee will be divided equally between the parties. Alternatively, the mediator may pro rate the mediation fee between each party. This may make a difference if you and your four siblings are mediating a case against a sibling trustee. In this case, you will want to confirm whether the fee is divided 50/50 between the trustee and the group of siblings or not.
Probate mediation is a valuable option for any individual with a probate dispute, either before or during litigation. You are welcome to contact our office if you would like to learn more about the mediation process and how it can benefit your probate or elder law dispute. Suzanne Fanning is a certified elder mediator and is happy to answer any question you might have about the mediation process.