In recent years, there has been an increase in lawsuits in trusts and estates. These lawsuits arise out of disputes over the administration of a trust, wills, estate administration, guardianships, and conservatorships. When you’re facing an estate or trust lawsuit or considering filing one, you need an estate lawyer familiar with the process to make a well-informed decision on how to proceed.
One of the first actions a lawyer or a judge typically advises is to explore alternative dispute resolution (ADR). You may have a better forum for your disputes by entering alternative dispute resolution and avoiding an expensive, time-consuming trial.
Mediation is one type of ADR that is popular for resolving trust and estate disputes. Today we’ll discuss a little more about mediation and share some important details you need to know before going into your first mediation session.
What Is Mediation?
Mediation is a settlement discussion with a neutral third party called a mediator. All parties to the mediation can discuss the issues, and the mediator facilitates the meeting to help them reach a mutually beneficial resolution. Unlike a judge, the mediator has no authority to determine the outcome and is not the decision-maker in the process. The mediator is merely there to help both parties calmly discuss their positions and work out a resolution.
Even where the court has ordered mediation, whether and how to settle is voluntary for the parties involved. The mediation process itself is also different from litigation and arbitration. It focuses on communication and collaboration and looks towards settlement without being limited solely by legal rights. The goal is to reach a resolution that satisfies the parties going forward rather than to decide who wins and who loses the dispute.
Types of Mediation
All mediation has the same goal – to come to a resolution that meets the needs of everyone involved. However, there are three types of mediation that are used to reach a resolution. Your specific case and issues determine the kind of mediation that is right for you.
1. Facilitative Mediation
Here, a professional mediator facilitates negotiations among all parties to a dispute. They don’t make recommendations or impose a decision, but they encourage the parties to reach their solution by exploring each other’s interests. Mediators tend to keep their views regarding the conflict to themselves.
2. Evaluative Mediation
In contrast to facilitative meditation, this type allows mediators to make suggestions and express opinions regarding the dispute. During this type of mediation, the mediator is more likely to help the parties understand the legal merits of their arguments and determine a fair resolution. This type of mediation is most often used when the court mandates the mediation, and mediators are generally attorneys with legal expertise in the area of the dispute.
3. Transformative Mediation
Here, mediators empower each party to resolve the conflict and encourage them to understand each other’s needs and interests. While the primary goal may not necessarily be reaching an agreement, its true purpose is to open a line of communication to resolve the dispute. The mediator’s role is to guide and offer suggestions to encourage each party to consider the other’s perspective and create a relationship to resolve their dispute amicably.
The Mediation Process
Whether you’re defending your position or bringing the complaint to mediation, everyone must understand the process before attending mediation. If not, you may become confused by what is going on. Even with a lawyer to advise you on the process and prepare you to attend, you should do your best to understand the process before entering into it.
Understand that mediation can take time. In most cases, it is scheduled for a day. This starts early in the morning and can last until the evening. Sometimes, two days will be scheduled, but this is rare. Each mediation session has rules set forth by the mediator or judge. Make sure you consult with your lawyer about the rules in place. Most mediations start with an opening statement by both sides, explaining their side of the dispute.
Next, each party is sent to a private room with their lawyer, and the mediator will come in and discuss your position, what you’re willing to do in terms of a settlement, and gain valuable information for both sides. The mediator goes back and forth, trying to get each side closer to a resolution. Once these private sessions are complete, the mediator may bring everyone back together or just meet with your lawyers. With this joint session, the mediator attempts to get both sides to agree to a resolution, or the lawyers will discuss additional steps needed from both parties to reach a resolution.
The final part of mediation is determining success or failure. If you settle, a session is held to finalize and record the details. However, if there is no resolution, and the mediator determines that one cannot be met, they end the mediation and offer the opportunity to come back if either party changes their mind.
Facing Mediation? Let Proven Law Help You Navigate The Process
ProvenLaw is a legal group providing trust, estate, tax planning, and litigation. We serve St. George and surrounding areas of Utah. Our unmatched expertise, client service, and quality work will give you the peace of mind that your case will be handled properly.
Our probate, trust administration, and litigation team helps identify and manage potential risks to pursue appropriate resolutions based on your circumstances. In addition, our team will help you understand the law and determine if mediation is the right process for you.
Contact us today for a free consultation to learn how to help you resolve your tax, estate, or trust dispute.