Mediation is a less adversarial alternative to litigation for individuals who are involved in a contested case. In mediation, a specially trained neutral third party, known as a mediator, facilitates discussion among the parties and seeks creative ways to resolve their dispute. The goal of mediation is to help the parties achieve their own voluntary settlement.
The Probate Courts offer a mediation program designed specifically to help individuals resolve contested probate cases. The program is unique in that all mediators are current or retired probate judges. Parties who choose to use the Probate Court Mediation Program have the benefit of a mediator who has expertise in probate law, experience as a judge, and special training in mediating disputes.
The fee for mediation under the Probate Court program is $350 per day or part thereof. Many mediations are completed in one day.
Participation in the Probate Court Mediation Program is strictly voluntary. A judge will refer a case to mediation only if all the parties in a case agree to participate in the mediation process. Each party has the right to withdraw from mediation at any time.
To initiate the mediation process, the parties submit a motion for mediation and an agreement to mediate to the court. The parties may choose which of the Probate Court mediators with whom they wish to work. A link to the list of available mediators, along with their resumes, is below.
Upon receipt of the motion and agreement to mediate (PC-1002), the Probate Judge will refer the case to the selected mediator. The mediator will schedule a mediation session at the court or another location that is convenient for the parties. To ensure that each session is as productive as possible, all parties and attorneys must be available for a minimum of eight hours from the start time of each mediation session.
At the first mediation session, the mediator will listen to each side of the case. Mediations typically begin with a group discussion at which all parties are present, followed by individual meetings between the mediator and each party. (Any party who is represented by an attorney may choose to have his or her attorney participate in the mediation.) The mediator helps the parties identify the issues that are most important to them and works to develop options to resolve the dispute in ways that are mutually beneficial. If necessary, the mediator may schedule additional mediation sessions.
If the mediation is successful, the parties will sign a written agreement to document the terms of their settlement. The settlement is submitted to the court so that the judge knows the case has been resolved.
If the mediation ends without a settlement, the case will proceed at the Probate Court in accordance with the procedures for contested cases. The judge will conduct one or more hearings at which the parties will present their cases, after which the judge will issue a decision on the case.
Mediation can be an attractive alternative to litigation because it gives the parties an opportunity to resolve a dispute without the expense, delay and acrimony of litigation. The process can be especially advantageous in the probate context, in which most cases involve disputes among family members. By helping the parties understand each other and facilitating an amicable resolution of a case, mediation can have lasting benefits for a family.
Parties who are involved in a contested probate case also have the option of private mediation rather than participating in the Probate Court Mediation Program. Parties who opt for private mediation need not submit a motion for mediation or mediation referral memorandum to the court and are not limited to the mediators on the probate mediation panel. The fees for private mediation are established by the mediator chosen by the parties.