You have 3 choices to resolve a probate dispute: litigation, arbitration or mediation. How do they differ from each other?
Mediation is generally done with a single mediator who helps facilitate discussion and eventual resolution of the dispute. Mediation is often used as a non-binding process in contrast to arbitration which often produces a binding outcome. It is up to the parties to agree or not about whether the outcome is binding on them. Besides being confidential and non-binding, mediation is relatively quick and inexpensive compared to litigating a dispute.
Arbitration is generally conducted by several arbitrators acting together. Each side selects an arbitrator who in turn picks another arbitrator so that in the end there is an odd number of arbitrators. They take on a role like that of a judge, make decisions about evidence and give written opinions. Decisions are made by majority vote. The parties decide ahead of time whether to make arbitration binding or non-binding. Binding arbitration replaces the trial process with the arbitration process.
Litigation is to be avoided. Litigation is inefficient, emotionally taxing, expensive, and time consuming. The outcome is decided by a judge or jury which makes the result uncertain and unpredictable.
Sometimes arbitration and mediation are used together with litigation. Opposing parties may first try to negotiate, and if that doesn’t work, they’ll go to trial. Both arbitration and mediation use a neutral third party to oversee the process, and they both can be binding when the parties agree to that. Both are similar in that they are alternatives to traditional litigation.
Mediation has proven effective in reducing Los Angeles court dockets and trials, and offers a more efficient, cost-effective option to litigation and as a result it has become increasing popular as an important part of the litigation process.
Mediation attempts to limit the issues and put them into proper perspective. Mediation is often successful because the parties can more easily present their position in front of a neutral third party. Mediation may eliminate the desire to continue fighting with litigation once all the parties have seen the issues in a fair light. Participants often feel much better after having an opportunity to air their issues and also benefit from hearing the other party’s point of view. The atmosphere is often relaxed and neutral.
Your attorney will prepare a mediation brief to inform the mediator about the background to the dispute, the relevant facts and what issues are at the heart of the fight. A good brief will cite the applicable law and be persuasive as to what outcome follows from the analysis. Supporting evidence is often provided so the mediator can see for him/herself what the dispute is over.
Good mediators will not give legal advice during the mediation even though they are usually attorneys familiar with California probate law. Mediators are not supposed to make legal conclusions about the merits of either party’s position. At the end of the mediation process, the parties will put their agreement in writing and sign it so that it then becomes binding.
Call an experienced attorney familiar with mediation. Mitch Port can help.