Did you realize that mediation and collaborative law can be used as processes to help parties achieve a peaceful resolution in a variety of matters beyond family law? Both mediation and collaborative law have been proven effective process options for any matter where there is the possibility that the parties will have a relationship after the conclusion of the legal matter.
We have recently joined others who have started using collaborative law to help resolve cases in the probate world. The mediation and collaborative process can be used to help reach a resolution in two distinct types of probate cases: those involving a will or trust contest and those involving a dispute over the appointment of a guardian and/or conservator.
Similar to a family law case, the root of the conflict in probate cases is often entangled with the emotions and feelings about the other parties involved in the case and not about the law. Those emotions/thoughts/feelings about the other legal parties boils over into the process and affects how or whether parties have conflict in the courts. In a typical divorce, people have been in the same family for 10-30 years. Similarly, in probate cases, people have shared the same family for most, if not all, of their lives. This extended period can mean even more emotions and feelings are involved. The commencement of a probate matter can be the perfect opportunity for family members to work through their differences through open and meaningful communication in order to create a new path for their futures. All too often, however, opening a probate case in a family where there is already a lot of conflict can also create the perfect storm for an explosive breakdown.
Collaborative law and mediation are both voluntary, out of court processes. Both process options can save a family from increased hostilities and in some situations, help mend family relationships. A probate mediation process involves all the family members who have a stake in meeting with a mediator individually and explaining their positions and goals separately. After all the stakeholders have met with the mediator, the mediator will meet with everyone together. The mediator will talk through options for resolution and work to get everyone to reach an agreement without going to court. The mediator will facilitate this process without making decisions or agreements. Rather, it is the participants who will make fruitful decisions and agreements based on their collaboration and guidance of the neutral mediator.
In collaborative law for probate matters, all stakeholders have a collaboratively trained attorney. The attorneys will bring in other professionals, as needed, to help the stakeholders work through some of the family dynamics to reach an agreement that works for everyone. Similar to mediation, the stakeholders are the people who make the agreements. However, collaborative law is different in that the attorneys take a more active role than in mediation and are often explaining the law and likely outcomes to the participant if their case proceeds to court. In collaborative law, the services of a coach or mental health professional are often utilized to help the participants dig deeper to examine the source of the conflict and their role in same. Utilizing a coach can be a unique opportunity for growth and healing among family members.
Using mediation or collaborative law helps keep the power with the family members instead of allowing a disinterested judge to make the decisions for the family. Judges do not have the emotional tie or interest in the objects at issue like the stakeholders do. Often when family members are unable to agree on how to divide personal property that is a part of a loved one’s estate, a judge will order the personal property to be sold and the proceeds to be divided. This result, although effective, doesn’t consider anyone’s emotional attachment or desired outcome to sentimental items.
Like any other type of legal matter, probate cases can take months and even years to get to a trial if the parties are unable or unwilling to reach a compromise. In cases where a guardian and/or conservator needs to be appointed, the court will usually enter a temporary order placing someone in that position until a full evidentiary hearing can be held. Prior to the full evidentiary hearing, the parties will conduct discovery in an attempt to prove that he/she should prevail and be the appointed guardian or conservator. When heirs are fighting about how to settle an estate, the case will be at a standstill, and no one will have access to any of the inventory until the matter can be resolved. This could mean that a house sits empty for years and deteriorates while family members wait for their day in court. With mediation and collaborative law, everyone is able to timely address issues and work toward a resolution. We are not bound to the court’s calendar.
If parties wait and present their case to the court, neither party is going to walk away feeling good or satisfied. People often want their “day in court” to explain to the Judge their story and how they were wronged by the other party. What people often do not realize is when parties are in court, there are certain rules and procedures that must be followed. The reality is the likelihood that someone is going to be able to tell their full story to the judge and receive some sort of validation is miniscule, if not impossible.
When parties are fighting about who should be the heir to an estate, usually the estate covers the legal fees. Essentially, the heirs are fighting while their inheritance is dwindling because they are paying not only for their own legal fees but also the opposing parties’ legal fees. A refreshing alternative is to go to mediation to allow the parties to reach a resolution while maintaining the estate instead of dissipating it to prove a point.
We all have connections to families whose members refuse to talk to one another. These family dynamics often erupt when there is an estate to settle or someone needs to become the guardian and conservator of an ailing parent. Similar to a divorce, working with a family to find a resolution is an opportunity to improve the lives of those who participate in good faith.
At McGill Law, when we assist families who cannot agree on who should act as their loved one’s guardian and/or conservator or families who are enmeshed in conflict over how an estate should be settled, we work to help the family members better understand and communicate. We want to help you preserve a long-term family relationship. It is truly remarkable when we are able to work with a family to not only find a resolution to the legal matter at hand but help them repair and rebuild their relationships.
Have a probate matter that you think could benefit from mediation or collaborative law? Give us a call to schedule a consult (402)548-5418.