ADR Options in Estate Disputes

ADR Process Options for Resolving Disputes in Estate Related Matters

Estate disputes can sometimes become difficult and challenging, particularly when the dispute is among family members. There may be a disagreement among appointed executors as to how an estate should be administered. Some family beneficiaries may be contesting the validity of a will or revisions made to a will, raising undue influence or capacity issues. The will may be ambiguous. Initiating court processes, although this may turn out to be necessary, can escalate the conflict and sometimes have the unfortunate result of putting a strain on or potentially damaging familial relationships during the difficult time of dealing with the loss of a loved one.

There is an array of process options available to parties who have a legal dispute in estate-related matters. These include direct negotiations, mediation, collaborative law, med/arb, and court action. It is important to discuss these process options at the outset with your legal advisor when you are seeking legal advice for disputes that arise or are anticipated. This article outlines some of the benefits of lawyer-assisted negotiations, mediation, and arbitration for estate-related disputes.

Lawyer Assisted Negotiations

Your lawyer can assist with facilitating negotiation with the other party or parties to the dispute. Your lawyer will complete an intake with you to identify relevant facts and issues, advise you on the law that applies to the dispute, and provide an assessment of possible outcomes if the matter proceeds to court so you can make informed decisions. Your lawyer can assist in identifying the immediate pressing issues and reach out to the other parties and their legal counsel to see if a negotiated settlement can be reached.

Many matters can be resolved amicably through strategic negotiations with the other parties to the dispute with your lawyer either negotiating directly on your behalf or providing assistance and advice in the background.

Mediation

Another process option that parties can consider as an alternative to or during the navigation of the court process is mediation. A mediator is a third-party neutral that works with the parties to (i) identify the issues; (ii) find where common ground exists; and (iii) assist with identifying and exploring options for resolution.  In this process, the parties can have their lawyers directly participate in the mediation sessions or assist in the background as necessary to provide independent legal advice as the parties weigh options and alternatives through the process. The process is flexible. For example, through the process, the parties can agree to engage a tax accountant to assist in exploring the tax implications of possible estate distributions, or an appraiser to value an estate asset that the executors are considering distributing to a beneficiary as his or her share of the estate.

Mediation has the benefits of being confidential and flexible. The parties are actively engaged in the process and retain control over how the dispute is settled versus having a decision imposed on them.

Arbitration and Med/Arb

Parties can agree to resolve their dispute through arbitration. The arbitrator will conduct a hearing and provide a decision on the issues in dispute.

Med/Arb. is a hybrid approach that parties may consider. If the parties are unable to resolve the dispute through mediation at the parties may consider agreeing that the mediator can then act as an arbitrator in the dispute. Upon the mediator determining that the dispute cannot be resolved through mediation, the mediator would switch roles and act as an arbitrator to decide the issues in dispute. A Med/Arb agreement detailing how this process would work would be signed at the commencement of mediation.

The benefit of arbitration is the ability to customize the process to meet the needs of the parties and match the procedure required to the issues at hand. In addition, the process is kept private and confidential as between the parties which may be important where sensitive information is at hand.

Summary

Lawyer-assisted negotiations, mediation and arbitration can be conducted in person or virtually. Virtual meetings have become very common through the Covid-19 pandemic. Meetings can be structured using a combination of these meeting methods to meet the needs of the parties involved as the process unfolds.

It is open to the parties to consider all process options for resolving disputes that arise during the administration of an estate. Having your lawyer explain these process options to you can assist you in choosing what will work best for you given your circumstances and the other parties involved.

Participation in these processes can lead to the resolution of disputes in a timely, efficient, and cost-effective manner.

If you are interested in mediation or arbitration for estate related matters Robertson Stromberg LLP would be pleased to assist.  For more information, please contact Darlene N. Wingerak at 306.933.1392 or email  d.wingerak@rslaw.com.

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ADR Processes - Mediation and ArbitrationADR Options in Estate Disputes