Alternative Dispute Resolution in Probate

June 26, 2013 by Bart Chepenik

When someone passes away and there is probate property, there is always the possibility of a lawsuit. When beneficiaries do not agree on the distribution of the decedent’s property, litigation ensues. Probate disputes are inherently unique: they are wrapped in a shroud of emotion; the issues are complex; the parties are stubborn; and lawyers’ creativity is often put to the test. Given the nature of probate disputes, another means of dispute resolution often proves to be a more efficient method of resolving probate cases. This is where Alternative Dispute Resolution comes in. Alternative Dispute Resolution is a means of resolving a claim outside of the court, usually through arbitration or mediation. It is a beneficial option to pursue before entering into litigation.

The benefits of litigation are that it gives a clear definition of the issues. The court and the parties know exactly what they are asking for and the grounds on which they seek relief. The rules of civil procedure give the parties the right to full discovery of the necessary facts of the case. Litigation also excludes irrelevant or frivolous issues. The decisions of the court are also final and binding. However, litigation can be time consuming, expensive, and onerous for everyone involved. It can also take years for a case to be completely resolved.

One means of Alternative Dispute Resolution is arbitration. Arbitration is a more flexible and less expensive alternative to litigation. It is also less time consuming. The rules of civil procedure and evidence are relaxed in arbitration. Additionally, the arbitrator can be selected based on experience and knowledge in the subject matter – unlike a jury. However, arbitration is not all roses. It can be as long and time consuming as litigation. In some instances, the arbitrator is imposed rather than selected, and decisions may not be final.

Another option is mediation. Mediation can save money, time, and relationships. It allows for a more creative method of solving problems – methods that a court could not necessarily produce. Mediation takes place in front of a neutral, disinterested, third party who will work with both parties to reach a mutually agreeable resolution. Although, it may take several times to get the come to such a resolution, if a resolution is achieved at all. While, mediation is final in that it ends with a signed, contractual agreement memorializing a resolution, one mediation may not be enough to settle the case. However, even if a mediation does not produce a settlement, it can still be worthwhile. Often times, the parties walk away from mediation with a more grounded take on the issues and the emotions surrounding the case. This often results in a settlement being achieved after mediation when the parties have had time to contemplate and digest what was learned and discussed during the mediation.

So why choose alternative dispute resolution in handling your probate case?

The most compelling reason to choose Alternative Dispute Resolution is flexibility. Courts are bound by rules of law. There is less flexibility in the courts than there is in alternative dispute resolution. Once the parties have a better grasp on the issues and have removed the emotion, it is easier to come to an agreement. Mediation allows the sides to state their position and openly discuss the issues. The mediator is able to speak to each side, individually, and offer his input. Parties are often more willing and able to speak freely to a mediator, who can help the parties ground their goals in reality and view the case with a new perspective. Even if the case ends up going to litigation, it may be shorter and less contentious than it would have been prior to mediation.

It seems as though the more flexible nature of Alternative Dispute Resolution lends itself naturally to the complexities of probate disputes. It provides a means for the parties, through the help of a mediator, to separate themselves from the emotion surrounding the subject matter and focus on the realities of the case at hand. Mediation can also bring agreements and compromises that a court could not. It can also address issues that a court may not address. Lawyers can be more creative in both their settlement strategies and how they structure settlements. This approach, even if unsuccessful, may set the stage for a more efficient litigation.

If you or someone you know has a probate dispute and is interested in learning about Alternative Dispute Resolution prior to filing a claim in court, the lawyers at Chepenik Trushin LLP can help.