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Alternative dispute resolution in probate

| Jul 18, 2020 | Probate

A will is supposed to reflect the wishes of the deceased. The formal language and other requirements of a valid will are necessary because the person won’t be around to answer questions or clarify any ambiguities when the will goes into effect. When a will appears to meet all the requirements, it is very hard to convince a court that it should be changed.

However, there are many cases where something in a will is not workable or not valid. In these cases, interested parties can argue against the will in a legal action known as a will contest.

Even in the best circumstances, will contests can be hard on everyone involved. In some cases, a will contest can break a family apart. Some families are able to minimize this risk by resolving their probate disputes out of court, through negotiation or alternative dispute resolution.

Compared to going to trial, alternative dispute resolution is typically faster and less expensive. It tends to lead to fewer hurt feelings and lingering resentments.

Mediation and arbitration

The two most widely used types of alternative dispute resolution in probate law are arbitration and mediation. Arbitration is in some ways like a trial, where a neutral third party listens to the evidence and arguments of two or more competing parties and renders a decision. The parties agree in advance to abide by the decision the arbitrator makes, and sign an agreement to put it into effect.

Mediation is a form of guided negotiation, where the discussion is facilitated by a neutral party. The mediator does not make a decision about the dispute. Rather, the mediator tries to get the parties to reach an agreement.

Both of these approaches have their advantages and disadvantages. They don’t work in every case, or for every dispute. Sometimes the goals of the parties are so diametrically opposed to each other that they will never reach an agreement. But when the parties have some goals in common, such as the goal of preserving their family’s unity, mediation and arbitration can be good choices.