The Mediation Process in Texas offers alternatives for settling legal disputes outside of the courtroom. Many are aware of mediation in business matters and family court, but the mediation process is also a viable option with probate issues. This less adversarial, less costly option to court proceedings provides ways to de-escalate tension among family members who question the settlement of the estate. Designed to address and solve probate issues, this type of mediation may also help to alleviate the underlying family issues that created the dispute.
Common Causes for Dispute
Typically, disputing family members may feel that assets are not distributed fairly or that the distribution does not reflect what they believe the decedent wanted.
Their concerns may focus on the validity of the will and whether or not it includes the elements outlined in section §251.051 of the Texas Estates Code. Family members may also question the decedent’s capacity, and how such issues as pain medication or dementia might have affected his or her judgment. Concerns may arise about undue influence over the decedent, exercised by a caregiver or another family member. In addition to disputing the will itself, quarrels may also arise over other probate issues such as executors, trusts, or powers of attorney. Pursuing these concerns in probate court may lead to amending or even overturning the will, but in the process bank accounts are depleted by legal fees, and family relationships are strained or even destroyed.
The Mediation Process
Mediation is a type of Alternative Dispute Resolution (ADR) that takes place outside of the court room. Generally, parties are in separate rooms, and a trained mediator, often a retired probate judge, serves as a facilitator, moving between parties to discuss concerns and work toward compromise. The process itself is usually complete within a day. Although probate often occurs after a lawsuit has been filed, it may begin even before filing a lawsuit.
Advantages and Disadvantages
One big advantage is its efficiency. Court proceedings often have to be scheduled far in advance and can take much longer than mediation. Less time means lower, often substantially lower, costs for litigants.
Another benefit is a more personalized approach. A mediator can usually identify underlying causes of a dispute and propose effective and creative ways to address those disputes. In contrast, court proceedings are much less personalized and deal only with the information presented in court.
By their nature, court proceedings also focus on which party is the winner and which is the loser in the case. Mediation allows opposing parties to reach a compromise and feel at least some satisfaction with the final outcome. While it does not result in a verdict, successful mediation does result in a mediated settlement agreement, which is enforceable. If neither party can reach a compromise, then filing a lawsuit is still an option.
Probate mediation does have some disadvantages as well. While neither side is declared the loser, each side must often compromise more than is comfortable in order to reach a decision. An important legal concern is the fact that a mediated settlement agreement cannot be challenged unless there is evidence of fraud.
Probate Attorney
Mediators are usually excellent at conflict resolution and compromise, but they may not experts about estate planning. A mediator is a neutral party, and that objectivity is vital to the mediation process.
By contrast, a probate attorney is an advocate for the client with vital knowledge about estate planning and probate courts. A probate attorney helps prepare a family for mediation and can also offer legal advice during the mediation process. Although the Texas Estates Code offers many safeguards and guidelines for estate planning and administration, the laws are quite complicated. An attorney well-versed in probate law can offer a client invaluable advice and perspective, especially helpful when determining if the case is strong enough to win in court if the mediation does not lead to settlement.
Hiring a probate attorney is not a required part of probate mediation, but having expert advice not only protects assets but also provides vital perspective and peace of mind for disputing family members.
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