Mediation is a dispute resolution process in which a neutral third party, known as the mediator, attempts to help you resolve your probate dispute through voluntary negotiations. Although a mediator cannot order you to resolve your dispute, a court can order you to at least participate in mediation. In a probate dispute, it is a pretty good bet that the court will order mediation.
If you do come to an agreement, a written mediated settlement agreement will be drawn up for you to sign with the opposing party. Once both parties have signed the settlement agreement, it becomes a binding contract and its terms can be enforced by a court. In other words, its terms become mandatory, not voluntary.
The Benefits of Mediation
Before commenting on the benefits of mediation, it is worth commenting on its on major drawback: you are extremely unlikely to convince the opposing party to agree to all of your demands, while in court, total victory is at least possible (as is total defeat).
- Mediation is often cheaper than litigation. Although, in some cases, the probate estate pays litigation expenses for both sides. This is like killing the goose that lays the golden eggs. Of course, mediation costs money too. And the expenses of a failed mediation can only be added to the expense of subsequent litigation.
- Mediation is usually quicker than probate litigation, which frequently takes years if one party appeals.
- You retain some control over the results. In litigation, the fate of your claim could come down to whether the jury personally likes you or not.
- Mediation is an alternative to the brutality that litigation often wreaks on family relationships.
- In an emotional family dispute, an impartial mediator could be the only cool head in the room.
- Mediation proceedings are almost always confidential (there are no exceptions to confidentiality if the mediation is court-ordered), while litigation proceedings are generally open to the public.
- Certified mediators are skilled conciliators. You might be surprised what you can accomplish with the aid of an impartial third party. A good mediator, for example, can help both sides better understand why the dispute arose in the first place.
- Flexible solutions are possible – in which both parties feel that the other party got the short end of the deal.
Keep in mind that it is perfectly acceptable to be represented by a lawyer during mediation proceedings.
When a court orders mediation, the mediator is always certified. The Supreme Court of Florida certifies mediators who successfully complete certain accredited mediator training courses and who meet certain other requirements such as good character. Different types of certification apply to different types of mediation.
Of course, a potential conflict of interest occurs when the mediator is related to one of the parties, either by blood or by association. In such cases, the mediator may not serve without the consent of both parties, which can only be granted once the mediator has fully disclosed all relevant facts concerning his relationship with one of the parties.
The Mediation Process
Although mediation is a flexible alternative to litigation, there is a general process that is usually followed in probate mediation:
- Introductions: The mediator gives an opening statement and introduces the parties to each other.
- Each party describes the dispute in his own terms with no interruptions from the other side.
- With the help of the mediator, the parties zero in on the issues to be addressed during mediation.
- Each party discusses the case privately with the mediator (an activity that is not allowed in litigation!).
- The parties negotiate under the guidance of the mediator.
- If an agreement is reached, a mediated settlement agreement is drafted, signed by both sides, and approved by the court. It then becomes binding on both parties.
- If no agreement is reached, a litigation hearing is eventually scheduled.
Some of these procedures can be varied with the consent of both sides, especially if the mediation is not court-ordered. If the mediation is court-ordered, the mediation must comply with the mediation provisions of the Florida Rules of Civil Procedure.
Can a Mediated Settlement Agreement be Set Aside?
Mediated settlement agreements are designed to be final and binding on both parties, which is why you cannot use the mechanism of an appeal to renegotiate an agreement you have already finalized. There are, however, certain grounds that might (in certain cases) justify setting aside a mediated probate settlement agreement that has already been signed, including:
- Mediator misconduct (violations of the Florida Rules for Certified and Court Appointed Mediators, for example). An example might be an undisclosed conflict of interest.
- One party withholds important information from the other party during the mediation.
- One party coerced the other party into mediation through threats.
The setting aside of a mediated settlement agreement puts the parties right back where they started before the mediation occurred, except that a party whose misconduct caused the setting aside of the mediated settlement agreement is likely to be put at a practical disadvantage.
Tips to Prepare for Probate Mediation in Florida
The following are some tips on how to prepare for probate mediation:
- Retain a top Florida probate lawyer with experience in mediation to represent you during mediation proceedings and to advise you during the preparatory period.
- Gather evidence and take depositions (interviews of witnesses under oath).
- Get the issues straight in your head. Construct a timeline, write down your account of the case, draw up a list of mediation goals and possible fallback positions, and bring them all with you to the mediation. Most importantly, know the ins and outs of the dispute off the top of your head without prompting.
- Organize all of your evidence, including documents, deposition transcripts, etc., and bring it with you to the mediation. You should be thoroughly familiar with it by the time you sit down at the mediation table.
- Come ready to compromise, at least to some degree.
Get a Head Start – Contact Us Today
If you are involved in a probate dispute or if you anticipate one, there is a very strong likelihood that you will spend some time in mediation – even if your dispute is eventually resolved through judicial decision.
Contact the probate attorneys at Beller & Bustamante, either online or by telephone at (904) 288-4414, so that we can schedule you a no-obligation consultation to discuss your options. We take clients throughout the Jacksonville metro area, including Northside, Westside, Southside, Arlington, the Jacksonville Beaches, and elsewhere in town.