When it comes to estate planning, setting up a trust can offer numerous benefits for both the grantor and beneficiaries. However, disputes can still arise among beneficiaries, trustees, or executors, leading to costly and time-consuming litigation. In such scenarios, trust mediation can be an effective alternative to litigation in resolving disputes while minimizing the impact on family relationships. Our California trust litigation lawyers can provide guidance and representation throughout the mediation process, helping parties reach a mutually satisfactory outcome.
In this blog, we will explore the basics of trust mediation and its advantages over traditional litigation in California estate and trust disputes.
What Are Estate Disputes, Contests or Conflicts?
Family estate disputes refer to conflicts that arise after a family member or loved one’s passing, particularly over the distribution of assets and interpretation of the decedent’s wishes. These can result in legal battles between beneficiaries, trustees, or executors of the estate.
What Is Estate Mediation?
Mediation is a form of Alternative Dispute Resolution, or ADR, in which the parties and their attorneys meet with a Mediator, who attempts to guide the parties to settlement. Although other types of ADR are available (binding and non-binding arbitration, and neutral case evaluation), mediation is by far the most common.
Unless they settle very early in the litigation, almost all estate and trust litigation cases, contested conservatorships, and elder abuse cases will go to mediation. In Contra Costa County, the court will typically order the parties to mediate after the first or second hearing. The same is generally true in Alameda County and Santa Clara County. In securities litigation cases, FINRA, the securities industry regulator, has its own mediation process and procedures.
Choosing a Mediator
After agreeing to mediation in estate disputes, the parties must agree on a mediator, typically either a local attorney who has completed mediation training and qualified for a court-approved mediation panel, or a professional mediator who may or may not be an attorney.
The choice of a mediator is very important, and our selection usually depends on the nature of the trust mediation at hand. In cases involving technical questions of estate and trust law, we may want an experienced attorney certified as a specialist in Estate Planning, Trust, and Probate Law. If inflamed emotions or family discord is the primary obstacle to settlement, a full-time mediator, even a non-attorney, may be more appropriate.
Mediating Disputes Related to Trusts & Estates
Although every Mediator has his or her own style, most tend towards either a “collaborative” or an “evaluative” approach. A collaborative Mediator is generally less concerned with the strength of each party’s case (i.e., who is going to win), and more concerned with bringing the parties together, issue by issue, until the parties begin to glimpse the possibility and benefits of settlement. An evaluative Mediator is more likely to point out the weaknesses in each party’s case in an attempt to convince each side that settlement is better than losing at trial. Again, which style is preferable depends on the nature of the case.
Mediation usually begins with all the parties and their attorneys in a conference room, where the Mediator describes the mediation process and confirms that anything said in mediation is confidential and cannot be used at trial. After the general session, the parties typically go to separate rooms and the mediator meets with each side alone, shifting back and forth from party to party with an offer, counter-offer, offer, counter-offer, and so on and so on, with the distance between the plaintiff’s demand and the defendant’s offer hopefully decreasing from round to round. It can be a tedious process.
Why Mediation in Estate & Trust Litigation is Critical
It is important to note that while each side has a chance to tell its story and present documents to the mediator, no one testifies under oath and no witnesses are called. Moreover, the Mediator does not render a decision, so a case cannot be “won” at mediation. In this respect, the parties truly succeed or fail together: both parties win if the case settles, and both parties lose if it does not. If the case settles, the settlement is memorialized in a written settlement agreement drafted by the attorneys, often after mediation has concluded. If the case does not settle, the case resumes and the parties progress to trial.
One key to a successful mediation is performing discovery prior to the mediation, so that the opposing party has given testimony under penalty of perjury prior to the mediation.
The Bottom Line
When it comes to resolving mediation probate disputes, trust mediation can offer a quicker and less expensive solution than traditional litigation. If you’re involved in an estate or trust dispute in California, consider discussing your situation with Barr & Douds Attorneys to explore your options for trust mediation. Don’t let a dispute tear your family apart – contact us today and take the first step towards a brighter future.
