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In California as in many States, mediation is a useful tool for trying to resolve a variety of legal issues between two or more parties. As a form of Alternative Dispute Resolution, mediation is appropriate for any situation when it is desired to avoid litigation and ultimately a court trial on the issue. In the trust and estates arena, mediation can be utilized to avoid litigation in cases where a will, trust, or other estate planning device is challenged. Dealing with the death of a loved one is bad enough, but adding a challenge in the courts to the will or trust of the decedent – usually by another family member, no less – is an emotionally draining and costly process.  Litigation against an estate or trust often take years to resolve. Mediation, on the other hand, can resolve the dispute more quickly and is a much more cost-effective process than going to Court. However, even when mediation is utilized, and no matter the outcome, every party involved should prepare for an emotional period of time as the family works through the legal challenge.

During mediation, each side involved in the challenge will likely obtain an attorney, but the actual mediation process will be conducted by a neutral third-party mediator. However, it is important to note that the mediator will be chosen by the parties involved in the case, and all parties must agree on the choice. Some mediators are also attorneys proficient in estate planning law and litigation. Others are not attorneys, but underwent specific training to become a legal mediator. Regardless, the goal of the mediator is to bring the parties together to come to an agreement and/or settlement in order to avoid the costly and time-consuming process of litigation.

Once the mediator is selected, the mediator will conduct a meeting with all parties and their attorneys. Typically, this meeting begins with all parties in the same room while the mediator outlines the rules of mediation; however, it is possible to have each party in their own separate room and is often setup this way in highly emotionally charged cases. One important note is that anything discussed during mediation is strictly confidential and protected. This means that no matter what is said, it cannot be used in potential future litigation of the case by any party. This allows each side to speak freely, openly, and honestly with an ultimate goal of reaching a mutually agreed upon compromise and avoiding the court room altogether.

Ultimately, mediation allows the parties to explain their thoughts and feelings to the mediator with or without the other party present as whatever case may be. The mediator will spend his or her time going back and forth between the parties with issues with each party’s case, ideas for a solution to the problem(s), offers, counter-offers, and so on until an agreement is reached.

A fundamental part of the mediation process is that the mediator will not make a decision for the parties. The parties must make a decision to accept specific terms of settlement, or all parties will end up in court. However, if a settlement is achieved during mediation, the attorneys for each side will work to draft a written agreement outlining the details of the settlement, which is often then signed by each party before leaving the mediation. This written and signed settlement agreement is a legally binding document.

If you are considering challenging a will or trust, or are being challenged by a family member regarding a will or trust, contact an experienced estate planning litigator, like the attorneys at Chilina Law Firm. The attorneys at Chilina Law are experienced in the mediation process and can help your family through this emotionally difficult time.

Authored by Greg Chilina and Co-Authored by Karen Chilina

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