Disputes in probate, estates and trust law can tear families apart. It’s deeply uncomfortable to argue about money with family members, especially at the same time as everyone involved is grieving the loss of a loved one. Many people come out of these disputes unsatisfied with their results and unwilling to speak to certain of their relatives for many years afterward. Alternative dispute resolution can help families to avoid this kind of lingering bitterness, and to get better results in will contests, trust disagreements another other disputes.
In probate, estates and trust law, popular methods of alternative dispute resolution include mediation and arbitration. Compared to trial and traditional methods of litigation, they have important advantages.
Mediation is a form of negotiation in which the discussion is facilitated by a neutral third party. The mediator is specially trained in finding ways to help competing parties reach agreement, and to avoid escalating conflict. However, the ultimate decisions are reached by the parties themselves. This means the parties have a greater degree of control over their outcomes, as compared to leaving the decision up to a judge. It often means they leave the process without many of the lingering doubts and resentments that are so common for people who resolve their disputes through traditional litigation.
Another important advantage of mediation is that it is typically faster and less expensive than going to trial or engaging in long negotiations.
However, mediation doesn’t work for everyone. Sometimes, the parties just can’t get along. Sometimes one party lacks the proper incentive to reach agreement. In these cases, the parties may have to resort to traditional litigation, but first they should consider arbitration.
As with mediation, the goal of arbitration is to get the parties to sign an agreement out of court. However, where a mediator is a neutral third party, an arbitrator is a third party who makes a decision about how to resolve the dispute. In this sense, arbitration is like a trial, and an arbitrator is like a judge.