Litigators, including probate litigators, litigate cases. That’s what we do. However, any good litigator will ensure that settlement discussions and mediation are part of any litigation strategy. Litigation is time consuming, difficult emotionally and financially on the parties, and is, by definition, uncertain. In any matter that goes to trial, the dispute and the complex legal and factual issues are put before a trier of fact (a judge in probate cases) and almost by definition, the judge’s ruling will disappoint one side (or sometimes both). Putting complicated issues before a judge can be risky and always carries an element of uncertainty along with it.
As such, it is important to always consider the option of settlement in any litigation matter. Settlement can come in various forms and can be reached through different strategies. Settlement conferences between and among counsel is often enough. Other times a settlement conference with counsel and the parties is needed. More often than not, however, the most successful process for settlement comes through mediation. In a mediation, the parties and counsel present their case to a neutral third party mediator (usually a lawyer). It is the mediator’s job to facilitate a meaningful and directed conversation in hopes of getting both parties to “yes.” The mediator’s role is not to provide an analysis of the strengths and weaknesses of the case. The mediator’s role is not to provide a ruling or any kind of a judgment. Instead, the mediator’s sole purpose is to help the parties reach a negotiated resolution in order to help the litigation and stop the fighting. Mediation is a process—and can be a difficult process at that. But it works. We encourage all of our clients to at least consider the possibility of mediating their case. We advise our clients as to the appropriate time within the litigation process to place the matter in mediation and we provide continued guidance through the process itself. Not all cases settle. Not all cases can settle. But keeping settlement and compromise in mind is important even in the most hotly contested matters.
