Mediation is one method of what the legal community calls alternative dispute resolution, or ADR.
As the name implies, in ADR, those who are in conflict solve their differences outside of the traditional court process.
The parties may agree to ADR or, in some situations, a Kentucky court may order parties to try it. Theoretically, parties can do ADR at any point in their litigation or even before a case gets filed.
Mediation is a type of formal negotiation. The distinguishing factor is a third party, called a mediator, facilitates the negotiation.
The mediator, usually someone with a legal background and some subject matter expertise, will learn about the case and hear from all sides.
They will then work with the parties to try to get them to agree. If they do, they may help draw up an agreement that resolves their claims.
The entire process is confidential, which gives the parties some liberty to talk about the strengths and weaknesses of their case without worrying about how doing so will affect their chances in a trial.
Also, even if a court orders parties to try mediation, there is no obligation to reach an agreement. If the parties do not agree, the case just continues as usual.
Why should I consider mediating a probate dispute?
While it is not right for every case, there are many advantages to mediating a probate dispute.
- For one, especially if it happens early on, mediation tends to cost less than going to court. People also may find that it is less time-consuming and stressful than preparing for and then attending a court hearing.
- On the point of cost, it is important to remember that if the estate has to defend against probate litigation, they may charge the attorney fees as a valid estate expense. In other words, the fees for the estate’s attorney come out of everyone’s share of an inheritance.
- Mediation also gives people a sense of control over the result. Parties do not have to agree, but if they do, presumably they are able at least to live with the compromises they made to do so.
- On the other hand, how judges will decide a case can never be predicted with certainty. A person may choose to fight an issue all the way to a trial only to wind up very disappointed with the result.
- Mediation also may be a good solution to a crowded court docket. It can take a long time after filing a case to finally get to a trial and then ultimately to a decision. Probate disputes take a notoriously long time to resolve in court.
- Especially if a probate dispute involves family, reaching an agreement in mediation can be a good first step toward healing in the family.
If a Kentucky resident is involved or thinks they will be involved in a probate battle, they should consider mediation as one of their legal options.