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JAMS ADR Insights

Estate Probate Trusts Mediation

Retribution or Resolution: Wherefore Art Thou in Probate Mediation?

Those embroiled in probate litigation should be asked two questions before any mediation: What do you want? What do you really want? Although these inquiries seem obvious, people may have myriad unexpressed concerns. Inequity evident in an estate plan may be objectively described. Anguish caused by such inequitable treatment may be less easily explained.

Perceptions of mistreatment may lead people to pursue probate litigation more for emotional than monetary relief. As attorneys will attest, clients often express variations of two pointed sentiments: “Mom and Dad liked brother more. Now that they’re gone, I want to get even.” Thus, if they have not ascertained what their clients truly hope to accomplish and have not guided them to a realistic understanding of what may be reasonably achieved, attorneys may find mediations to be daunting exercises in futility.

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