Opting for the Mediation of Trusts and Estates Disputes

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Trusts and estates disputes may arise for a number of reasons.  A will may not be clear regarding which person receives what under the will.  When assets are said to be divided among the children, this can create conflict as different items have different significance to the children.  Because people tend to want to avoid conversations about death, will may not provide adequate details and people may not talk to their children or other beneficiaries before passing.  This can make some parties believe that the testator was influenced by someone who benefited greater by the will.  This can lead to a will contest in many situations.

When such a contest is apparent, the parties may choose to go through mediation to prevent litigation.  Mediators are skilled professionals who are experienced with dealing with complicated family dynamics, including sibling rivalry or the involvement of in-laws.  They use this experience to gain trust in each individual party.  They explain that the process of mediation allows the parties to retain the power to make decisions that are important to them rather than handing over this power to a judge or jury.

A mediator funnels information and settlement offers back and forth between the parties.  During this time, the mediator will get to realize the parties’ interests better and use this information to offer suggestions about how these interests can be met.  In cases involving wills, the issue may be more about wanting to feel equally loved by the decedent or wanting to keep an item of greater emotional value that really connects with him or her.  Mediation can allow for flexible compromises, such as letting one sibling have possession of a painting for a number of years and then passing it to the next sibling for several years.  This process allows the parties to create customized solutions to their problems.

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Exploring Options through Guardianship Mediation

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Some cases are better suited for mediation than litigation.  Cases involving elderly guardianship appointments often fall within this classification.  Guardianship cases often involve private matters and complex family dynamics that may be better handled with professional assistance.

Mediation is a private process in which the parties involved in a dispute work together with a third-party neutral who encourages them to communicate and come up with unique solutions to resolve the problem.  This process is often much more open than litigation since the parties can talk to each other directly rather than through the questioning and cross-examining conducted by lawyers.  If a party is concerned about how someone has handled medical issues or finances, these concerns can be addressed with the process of mediation.  In comparison, these are simply accusations that can be lodged in litigation that may not be adequately explained through the process of litigation.  While mediation provides an open forum for the parties to discuss, it also preserves the privacy of the parties by not having them air its dirty laundry on a public record.

One of the common issues that plague guardianship cases is miscommunication.  Due to difficult family dynamics, assumptions or misgivings, communication may not be occurring with the parties.  Mediation provides an opportunity for the parties to participate and engage in open dialogue.  It also allows them a chance to work together toward a mutual goal, such as protecting the health or finances of a loved one.

If a case proceeds to trial, the judge may make one of the participants the guardian of the ward.  However, with the process of mediation, the parties can establish creative solutions that work best for the family, such as dividing responsibilities, financial commitments and logistical assurances that may not be available through a resolution reached in court.

Reasons to Consider ADR for Professional Liability Cases

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Professional liability cases involve claims that someone has violated their professional duty.  This may be a lawyer who violated confidentiality requirements, a physician who committed medical malpractice, an accountant who provided bad information or a financial advisor who violated a fiduciary duty, among others.  When such issues arise, a lawsuit may be imminent.  However, there are alternatives available, namely through the use of ADR solutions.

Many forms of ADR are voluntary.  However, some parties may have agreed to a form of alternative dispute resolution such as mediation or arbitration through a contract agreement that was signed prior to any conflict actually arising.  ADR options are also confidential in nature, allowing the parties to communicate together or have their issues resolved without the concern of the public knowing the specific details involved in the case.

Another key aspect of ADR is that the parties reserve more power in the process.  For example, in mediation, the parties only get to decide how to resolve the claim.  The mediator is a person who facilitates communication but has no power to decide the facts or issues like a judge would.  While in arbitration the arbitrator does have such deciding power, he or she is personally selected as the factfinder by the parties.  Additionally, the parties can agree to narrow the issues and establish guidelines about discovery that ultimately help make the process faster and more affordable.

Decisions reached in ADR are usually firmer than those made by a court and that are subject to appeal.  Mediation agreements are binding agreements by the parties.  Except for limited circumstances, a binding arbitration agreement cannot usually be appealed.  This helps create greater finality for the decision reached in arbitration.