Mediation resolves the vast majority of probate disputes — and a few best practices can make the difference between a long day that ends in a signed agreement and one that doesn’t. Field notes from the mediation table:
- Use a mediator familiar with probate litigation and, when possible, with the particular court involved.
- Make sure each litigant brings anyone important to their decision-making, so that person buys into the process rather than becoming an 11th-hour obstacle by phone.
- Have all participants clear their evening, in case the process runs past 5 p.m.
- Anticipate and research tax issues before the mediation.
- The mediator should validate each party’s perspective while giving a realistic assessment of the legal framework.
- When a party makes an offer, the mediator should type it up and confirm its accuracy with that party before delivering it — and keep doing so as counteroffers fly back and forth. Seeing the terms in writing throughout the day makes it easier for everyone to envision a settlement.
- When an agreement is reached, document it and have the parties sign it — no matter the hour.
- In the settlement, address whether any future documents will need to be signed, and how disputes over the agreement’s interpretation or performance will be handled. Make clear that the settlement is a binding contract, not an “agreement to agree.”
- Invite other interested persons in the probate proceeding to the mediation, so they are bound by any agreement reached. If some do not attend, make the agreement subject to probate court approval to bind them.
