Arbitration and mediation are not as frequently used in estate planning circles as they are in other areas of the law, but they are becoming an increasingly popular option. Both arbitration and mediation are forms of alternate dispute resolution, or ADR. This simply means that these two processes are used in place of lawsuits or litigation. When people have an estate planning conflict, arbitration and mediation are sometimes used to help settle those disputes. Today, were going to take a closer look at estate arbitration and mediation, and how they work.
You can think of arbitration as a private courtroom. When two parties enter into arbitration over disputes, they have to meet with a neutral, third-party arbitrator. This arbitrator serves in a very similar role to that a judge would serve in at trial. The arbitrator is responsible for reviewing the case that each side makes. The arbitrator, once his or her review is completed, will then make a decision about the case and issue a ruling with which both parties must comply.
However, arbitration is not as formal as the litigation process. Parties can meet with the arbitrator, discuss their differences, and try to determine the best possible outcome. If the parties can’t come to an agreement, the arbitrator will issue a ruling that binds them both.
Though similar to arbitration, mediation is a much less formal and less strict process. In the mediation process, the mediator also serves as a neutral third party. However, mediators do not have the same abilities that arbitrators have. A mediator cannot, for example, issue a ruling that the parties must abide by.
Instead, a mediator is more like a family counselor than a judge. Mediators allow both sides to come to a neutral place, discuss their disagreement, and try to come to terms. Mediators do not impose any decisions, though they can offer possible solutions. The mediator’s primary role is to try to get both sides to come to an agreement that they both find acceptable.
Alternate Dispute Resolution
Why would someone use mediation or arbitration? This is a common question, and one that has multiple answers. Both arbitration and mediation can be preferable to litigation because they can be significantly less costly and take a lot less time. They are also much more flexible than litigation and courtroom procedures, allowing each side to explore options they might not otherwise have considered if they went to trial or otherwise engaged in litigation.
If you are confronted with an arbitration or mediation situation, or simply want to know more about processes and when you might be able to use them, you need to speak to your estate planning attorney.