In Texas, the probate court has the authority to order alternative dispute resolution (ADR) for  a probate case at the motion of any party or upon its own motion. Although mediation is the most popular ADR method, the court has no authority to force parties to come to a mediated agreement. Parties to a probate dispute can agree to mediation even without a court order, however.

Why Probate Mediation Is so Popular in Texas

Mediation offers a number of advantages over litigation, including:

  • Mediation is usually quicker than litigation.
  • Mediation is more flexible than litigation in terms of the ability to craft an individualized solution that is acceptable to both sides. With enough creativity, there doesn’t have to be a “winner” and a “loser” in every case – under certain circumstances, both sides can win.
  • Mediation is confidential. This feature stands in stark contrast to courtroom litigation, which is almost always open to the public. Given the intimate family nature of probate litigation, the confidentiality aspect of mediation is particularly attractive.
  • Mediation is simpler than litigation. Courtroom litigation is bound by strict rules of evidence and civil procedure.
  • Mediation is usually cheaper than litigation.
  • A mediator is a neutral third party who facilitates discussions among family members. Family dynamics are often highly emotionally charged, and settlement negotiations often break down for emotional reasons – to the detriment of both sides. An unrelated, neutral mediator with no personal stake in the outcome can greatly assist the parties in reaching a rational solution that benefits everyone.
  • Successful mediation leads to a settlement agreement that can be enforced just like any other contract.

There are two major drawbacks to mediation, however: (i) total victory is usually impossible because the other side won’t agree to total defeat, and (ii) you generally cannot appeal a mediated solution, except for unusual circumstances such as fraud or conflict of interest.

How the Mediation Process Works

Since mediation is far more flexible than litigation, it is impossible to present an ironclad “process of mediation” in a step-by-step format. The following is a generalized, flexible listing of what generally happens in mediation:

  1. The mediator introduces himself and presents an opening statement that clarifies general expectations.
  2. The mediator introduces the parties to each other.
  3. Each party presents the dispute from his own point of view, with no interruptions. These presentations are expected to be partisan.
  4. The mediator helps the parties draw up a specific list of the issues to be resolved.
  5. The mediator discusses the case with each party individually, outside the presence of the other party. This is known as ex parte communication, and it is forbidden in litigation.
  6. The parties negotiate with each other under the mediator’s guidance and assistance. Part of the mediator’s job will be to keep the discussions “on topic.”
  7. If the parties reach an agreement, a settlement agreement is drawn up, signed by all parties, and presented to the court.
  8. If no agreement is reached, a litigation hering is eventually held.

Why You Need a Probate Lawyer to Represent You

Probate mediation naturally invokes probate law, and you could end up with the short end of the settlement if you don’t understand how probate law works. Mediation is a form of bargaining, and as the saying goes, “all bargaining takes place in the shadow if the law.” One of the circumstances that gives one party leverage in probate mediation is the ability to win in court if the other party refuses to agree.

Unique Aspects of Probate Law That Often Arise in Mediation

Some of the unique aspects of probate mediation include:

  • Burden of proof (this issue alone often determines who wins)
  • Testamentary capacity vs. contractual capacity
  • Credibility of witnesses
  • Whether a will was executed in accordance with statutory requirements
  • Validity of a codicil or later will
  • Fraud or undue influence
  • Interpretation of the language of a will
  • Removal or disqualification of executor
  • Disagreements among executors
  • Estate debts
  • Accounting and tax issues

These are only a few of the issues that may come up. Some of these issues are unique to probate law while others (credibility of witnesses, for example) are not.

Mediated Settlement Agreements

One the parties have reached agreement in mediation, they will sign a mediated settlement agreement. In Texas, a binding mediated settlement agreement is enforceable just as any other contract is.

A well-drafted mediated settlement agreement resolving a will contest should include:

  • The names of the parties
  • The positions or roles of the parties (executor, beneficiary, etc.)
  • The name of the deceased and the date of death
  • The facts that gave rise to the dispute (a description of ambiguity in the language of the will, for example, or questions about the mental competency of the deceased.)
  • A description of pending probate proceedings
  • A recital of the issues at stake
  • A definitions section
  • A statement of consideration
  • A clearly drafted description of the terms of the settlement
  • A detailed statement of the handling of taxes and debts of the estate
  • Certain legal statements known as representations
  • A release and indemnities section
  • A disposal of litigation section in which litigation is formally abandoned in favor of the settlement agreement
  • Remedies if either party defaults on the agreement
  • Various other “boilerplate” clauses, such as choice of law and the number of original versions of the agreement that are printed and distributed to the parties
  • Effective date of the agreement
  • Sections for party signatures and court acknowledgement

The foregoing is an incomplete list that lacks detail. No two agreements are alike, and your probate settlement agreement should be individualized to deal with your particular circumstances and concerns.

Take the Bull by the Horns

If you are involved in a probate dispute or if you foresee one developing, the chances are fairly high that you will end up in mediation at some point of another – regardless of how your probate dispute is eventually resolved. You will be at a serious disadvantage in mediation if the other side has an attorney but you don’t, and you will be at a great advantage if you have an attorney but the other side doesn’t.At Romano & Sumner, we represent clients throughout Sugar Land and Fort Bend County, including Mayfield Park, Ragus Lake Estates, First Colony, Sugar Lakes, and elsewhere. Contact us immediately to schedule a free initial consultation. We can be reached by telephone at (281) 242-0995 or though our online contact form.