Role of Mediation in Estate Cases

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As a contestation of a will progresses and evolves during the legal process, there comes a point when the parties must decide if mediation is a viable way to resolve the claim. Mediation usually occurs after discovery documents are exchanged and the lawyers have had some communication. Both parties have typically filed some documents, such as affidavits, but in most instances the parties have not fully developed their case on the record.

Benefits of Mediation

Given the timing of when mediation generally takes place, it often represents a cost-effective end to the contestation of a will. Mediation is faster than a court case, and the mediation usually takes place over a single day. Therefore, it involves less legal costs and lawyer fees. As well, the parties do not have to invest additional money for a barrister in court.

Mediation can help preserve the relationships between the parties. Contesting a will can be an emotional process, and it can be very difficult for those involved. Often times, the legal process is taken personally, and the results can lead to strained relationships. However, mediation is a form of alternative dispute resolution, and it promotes an outcome based on negotiation, cooperation, and compromise.

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These aspects of mediation encourage the parties to be civil, calm, and rational in how they communicate and strategize with each other. Mediation also promotes a resolution that is good for all the parties. Instead of placing the brunt of importance on winning or losing, the focus is on each party’s true interests and how to balance those interests to reach a desirable middle ground.

Are There Benefits Without Settlement?

While a settlement is the hopeful outcome of the mediation process, it does not solve all claims and disputes. However, there are certain advantages to attending mediation, even if it does not result in settlement of the claim. First, it is informative for the applicant. At the mediation, the executor of the estate is required to list all of the assets included in the estate. This provides full disclosure for the applicant; who can then better assess the situation and his or her receipt under the will.

Mediation also reveals a lot about the responding party’s strategy and defence to the will contestation. As the parties are forced to reveal comprehensive information, they must also present their position and viewpoint on the claim itself. It can show how stalwart or unyielding the other party is going to be, or alternatively, how much they are willing to give up. In the end, this also shows the strength of a claim and gives a better idea of the likelihood of success in court.

Drawbacks to Mediation

In some instances, it is in a party’s best interests not to settle at mediation, and rather take the case all the way to court. Mediation has very few formal rules, and this means it can be more difficult for the lawyers to keep things fair for both parties. As well, when mediation does not reach a settlement, it represents an additional cost for those parties who must still proceed to court.

Of course, the decision to engage in mediation or to move to the court system is often best determined by your lawyer. A solicitor knows the ins and outs of a particular claim and has past experience by which to compare it. This allows a solicitor to determine whether anything beneficial will result from mediation.

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