Although emotions can run high during an estate, trust, or guardianship dispute, a growing number of Courts, including those in Dallas County, pro-actively encourage parties to try mediation first. In this blog post, we review how the mediation process works in a probate dispute, against the background of potential litigation.
Posted: March 23,2016
Mediation in Probate Litigation
Many will contests and cases of fiduciary litigation end up being resolved by a judge or jury. In some cases, the only way to end a dispute over a will, a trust or a guardian is to find out which side the judge or jury believes should prevail. But a growing number of courts throughout Texas, including Dallas County, require parties to explore alternative methods of resolution before their big day in court.
Mediation has become one of the most well-known dispute resolution alternatives. Dallas probate judges, for example, usually will not schedule a bench or jury trial until the parties to the lawsuit
have at least attempted to settle the case at mediation. As a result, preparing our clients to mediate is just as important as preparing our clients for trial of a probate matter.
Probate, trust and guardianship mediation is typically a daylong process of settlement negotiation. Each party sets up in their own private and confidential area, and the mediator spends his or her time going back and forth between the rooms to try to broker a compromise.Effective mediation requires two things from a well-prepared client: (1) a good faith attitude to end the dispute and settle the case, and (2) more patience than the other party.
A good faith effort means that the client has to be ready to settle their probate dispute, on fair and reasonable terms that they can live with. Sometimes, the emotions involved in high-pressure probate litigation just run too hot, and the parties might not be in an emotional state to put the issues to rest. Having more patience than the other side is critical to maintaining the leverage that generates a favorable result for our clients. We never want to be the party to walk away from a settlement opportunity first. While some pieces of probate litigation simply cannot settle, most of them can and probably should.
Good mediators will tell you that a successful mediation occurs when both parties leave the experience at least a little bit unhappy – meaning that they both gave up more than they wanted to. Not every case is right for mediation, but many clients will gladly walk away a little bit unhappy if it means that the lawsuit ends around a conference table with a compromise as opposed to a “winner take all” opportunity in a courtroom.
This blog post was a quick overview to one of the newer trends in Texas: the required use of mediation in disputes over estate, trusts, or guardianship. If you are considering probate litigation in Dallas county, a good lawyer should also have his or her eye on the mediation process. Our Dallas-based attorneys are happy to conduct a quick phone consultation to discuss how they can help with a probate dispute, whether in mediation or in a litigation environment.