Mediating Probate Disputes

Mediating Probate Disputes
Author: Ray D. Madoff
Publisher:
Total Pages: 0
Release: 2005
Genre:
ISBN:

Interest in the use of mediation to resolve probate disputes has been growing. As part of the larger trend in American courts to encourage alternative dispute resolution ("ADR"), and following the successful adoption of mediation to resolve divorce and other family disputes, there now exist a number of court-sponsored mediation programs designed to encourage the mediation of probate disputes. Moreover, many jurisdictions are considering adopting their own programs designed to encourage mediation of such disputes. Despite this trend, the use of mediation for resolving probate disputes has lagged far behind its use in other family matters. Many jurisdictions provide little or no formal opportunity for probate dispute mediation. Even where mediation is offered, judges and practitioners are often skeptical of its value in the realm of trusts and estates. Indeed, mediators themselves note that probate disputes are some of the most difficult to mediate. The following are some of the suggested impediments to the widespread adoption of mediation to resolve probate disputes: 1. Courts are not providing sufficient encouragement; 2. Probate disputes are relatively rare - particularly in comparison to divorce - and, therefore, it is not efficient to establish mediation programs specifically geared towards such disputes; 3. The number of qualified mediators with a good understanding of probate law is insufficient to handle probate disputes; 4. Estate planners already act as informal mediators in probate disputes and resolve many of the resolvable cases. If litigation is threatened, it is because the dispute is unlikely to be susceptible to successful mediation; 5. The probate bar lacks familiarity with mediation and is reluctant to embrace it; 6. The parties are unwilling to bear the costs of mediation; 7. In many probate disputes, at least one party's litigation expenses may be borne by the trust or the estate thereby reducing that party's incentive to settle; 8. The emotional nature of probate disputes makes the parties unwilling to settle through mediation; and 9. Probate disputes are difficult to mediate because the person whose views are most relevant, namely the testator in a will or the settlor of a trust, is dead and not able to participate in the mediation. In some jurisdictions, courts have attempted to address these concerns directly. For example, to overcome reluctance by the parties to use mediation, some judges require that all disputes go to mediation before they can proceed in court. To reduce the costs of mediation, some court-sponsored programs use volunteer mediators or fund the cost of mediation directly. Finally, to fill the perceived need for mediators who understand the substantive law of wills and trusts, some programs provide mediation training for lawyers practicing in the wills and trusts area, and others provide probate law training to experienced mediators. This Article examines six court-sponsored programs designed to encourage the use of mediation to resolve probate disputes in five jurisdictions: Texas, Florida, Georgia, California (Los Angeles and San Francisco), and Hawaii. Some of the programs are part of larger state-run programs designed to encourage the mediation of a variety of disputes, but all were studied in terms of their specific application to probate disputes. In discussing each of the programs, this Article focuses on the extent to which courts and practitioners either have addressed or proven false the suggested impediments to the use of mediation in resolving probate disputes. Part II of this Article provides a general description of mediation. It discusses the role of mediation in our current dispute resolution system and describes the mediation process. Part III then describes the six court-sponsored programs designed to encourage the use of mediation in probate disputes and offers attorney feedback with respect to each program. Finally, Part IV examines common issues that arise in developing court-sponsored programs designed to encourage the use of mediation in probate disputes.

Mediation for Estate Planners

Mediation for Estate Planners
Author: Susan N. Gary
Publisher:
Total Pages:
Release: 2016
Genre:
ISBN: 9781634255486

An important new resource for attorneys to assist clients in resolving - and avoiding - disputes in an estate planning practiceEstate planners and elder law practitioners are increasingly aware of the availability of mediation as a tool for resolving family disputes. Probate courts around the country are increasingly interested in encouraging parties to try mediation before resorting to litigation. But by the time a dispute reaches the probate court, damage to family relationships may have already occurred.Mediation for Estate Planners: Managing Family Conflict provides the basic tools to understand and employ mediation within an estate planning practice and appreciate the usefulness of these alternative dispute resolution processes. Written by a team of experienced attorneys and mediators, this book can assist lawyers in recommending mediation to clients, either at the planning stage or soon after a dispute surfaces, so that families may be able to resolve disagreements before entrenched positions are established.The issues discussed in this book range from drafting mediation clauses for estate planning documents to using mediation to resolve probate and trust disputes; from bringing in a consultant with mediation training to addressing family business succession to assisting families dealing with guardianship and conservatorship issues; and from using mediation in hospital settings when families face difficult end of life decisions to using mediation to work through disputes between trustees and beneficiaries; and more.Topics are organized in these sections for ease of use and reference:Understanding the essential elements of mediationPractical perspectivesSpecific applications in the estate planning and administration contextMediator as consultant: family business succession planningArbitrationResources for practice, including a Tool Kit, bibliography, and more

Mediation for Estate Planners

Mediation for Estate Planners
Author: Susan N. Gary
Publisher: American Bar Association
Total Pages: 0
Release: 2016
Genre: Law
ISBN: 9781634255479

This is an important resource for attorneys and related professionals to help their clients in resolving - and avoiding - disputes that occur in the estate planning process. Written by a team of experienced attorneys and mediators, Mediation for Estate Planners provides the fundamental knowledge and basic tools employ mediation within an estate planning practice. It provides practice-proven guidance on recommending mediation to clients, either at the planning stage or soon after a dispute surfaces, so that families may be able to resolve disagreements before entrenched positions are established. The book considers all relevant issues involving the use of mediation in an estate planning practice, including drafting mediation clauses for estate planning documents; using mediation to resolve probate and trust disputes; addressing family business succession; guardianship and conservatorship issues; using mediation in hospital settings when families face difficult end of life decisions; working through disputes between trustees and beneficiaries; and more.

Mediating Legal Disputes

Mediating Legal Disputes
Author: Dwight Golann
Publisher: Aspen Publishers
Total Pages: 596
Release: 1996
Genre: Law
ISBN:

For an in-depth discussion of all the issues that a mediator or advocate needs to become an expert on the process, turn to Dwight Golanns award-winning MEDIATING LEGAL DISPUTES. Recognized by the CPR Institute for Dispute Resolution For The best book published in the field of dispute resolution, MEDIATING LEGAL DISPUTES is the only mediation resource youll need. The author discusses not only the very real psychological dimensions of disputing, but also grapples with tough techniques like decision analysis and evaluation to deal with real disputes over who will win in court. This valuable reference offers unique and powerful mediation methods that: Minimize the impact of spin tactics, private agendas, and hard-line bargaining strategies Calculate the cost of litigation alternatives as part of the mediation strategy Overcome hidden obstacles to settlement, such as emotional/psychological sticking points Apply sophisticated techniques (such as on-the-spot laptop computer programs) to analyze risk and break negotiating impasses Meet the challenges posed by specialized disputes such as employment and environmental cases Youll also learn mediation techniques for reducing friction, counteracting 'bad blood,' and guiding your case to satisfactory resolution.

How to Mediate Like a Pro

How to Mediate Like a Pro
Author: Mary Greenwood
Publisher: iUniverse
Total Pages: 90
Release: 2008
Genre: Law
ISBN: 0595469620

For over twenty-five years, Author Mary Greenwood has been resolving disputes in her professional career as an Attorney, Mediator, Human Resources Director, Union Negotiator, and Labor Arbitrator. Her book How to Negotiate Like a Pro, Which has won six book awards, was based on her experience as a Union Negotiator. The sequel How to Mediate Like a Pro is based on her experience as a Mediator in over 7000 cases. Greenwood noticed that there were certain Rules or characteristics of The cases that settled that were not present in the cases that did not settle. Among those Rules you will find the following: Be A Devil's Advocate You Can Mediate With A Lunatic Everyone Makes Mistakes Let The Parties Tell Their Story Know When To Fold Greenwood lists each Rule and Script and offers a concise explanation on how and when to use it in Mediation. How to Mediate Like a Pro presents strategies and practical tips for the Mediation process. It will give you insight on how to deal with difficult parties, how to break an impasse and how to close the deal. After you read this book, you will be able to Mediate Like A Pro.

How Mediation Works

How Mediation Works
Author: Stephen B. Goldberg
Publisher: Emerald Group Publishing
Total Pages: 137
Release: 2017-04-28
Genre: Law
ISBN: 1787147231

How Mediation Works will introduce management and law students as well as businesses to this art of conflict resolution from the behavioral perspective, while also providing a valuable resource to continuing education programs, mediation training, and lawyers to familiarize clients with the mediation process.

Mediation in Family & Divorce Disputes

Mediation in Family & Divorce Disputes
Author: John O'Leary
Publisher: Siber Ink
Total Pages: 91
Release: 2014-03-03
Genre: Law
ISBN: 192002557X

Mediation in Family & Divorce Disputes is intended as a handbook for mediators and clients who are involved with family and divorce disputes. It distills 20 years' of priceless experience into a succinct and lucid handbook that will be invaluable to attorneys, mediators, social workers, pastors, psychologists and parties to disputes, helping clients to decide whether they would like to try to resolve their dispute through mediation and professionals to reflect on the fundamental principles and practical applications of their work. For mediators the book sets out to provide practical and theoretical guidelines for their work. The practice tips, further reading suggestions and references serve as an introduction to some of the work of leading mediators in the field for those readers who would like to develop a deeper understanding of the process. The book is also designed to be of use to those who have recently been trained as mediators or will soon be trained, as it complements the material usually presented in such training. For clients it explains what they can expect in the mediation process, tips as to what to look for in a mediator and what they can do to prepare for their mediation in order to get the most out of the process.

Mediation in Family Disputes

Mediation in Family Disputes
Author: Marian Roberts
Publisher: Routledge
Total Pages: 336
Release: 2016-04-29
Genre: Law
ISBN: 1317098463

This is the authoritative textbook on family mediation. As well as mediators, this work will be indispensable for practitioners and scholars across a wide range of fields, including social work and law. It draws on a wide cross-disciplinary theoretical literature and on the author's extensive and continuing practice experience. It encompasses developments in policy, research and practice in the UK and beyond. Roberts presents mediation as an aid to joint decision-making in the context of a range of family disputes, notably those involving children. Mediation is seen as a process of intervention distinct from legal, social work and therapeutic practice, drawing on a distinctive body of knowledge across disciplinary fields including anthropology, psychology and negotiation theory. Incorporating empirical evidence, the book emphasises the value of mediation in mitigating the harmful effects of family breakdown and conflict. First published in 1988 as a pioneering work, this fourth edition has been fully updated to incorporate legal and policy developments in the UK and in Europe, new sociological and philosophical perspectives on respect, justice and conflict, and international research and practice innovations.