Kenneth Carroll: Probate Lawyer Orem Utah

Your beneficiaries will receive the legal title of your estate only after when has been through probate. Even when there is a will, the validity of the will must be determined by the probate court. If a person dies intestate, the probate court will decide how the person’s assets are to be distributed to his or her heirs. In the absence of a will, the state law will determine the share of each heir. When an estate goes through probate, the beneficiaries must pay probate fees. You can legally reduce or completely avoid the cost of probate. Probate can also take a long time. Consult with an experienced Orem Utah probate lawyer.

Probate courts in Orem Utah will generally direct the parties to a probate dispute to try and settle the dispute through mediation. Before you select a mediator for your probate dispute, speak to an experienced Orem Utah probate lawyer.

Mediation is not really new. It is as old as the new testament and perhaps older. The Greek word for mediate means to stand between. People have always known that standing between two people in conflict can be helpful. What is new is that mediation has been rediscovered as a replacement for many of the present methods of addressing adversarial conflict. The mediation method encourages cooperating with and helping your adversary. This new way of thinking is gaining a foothold, not only in conflict resolution theory, but also in business.

Mediation is most effective when the parties understand the differences between the mediation process and other processes, such as litigation or tribunal hearings. In litigation, or a case conducted before a tribunal, the emphasis is on putting the best case forward in an adversarial approach.

Mediation however is flexible, non-confrontational, and allows the parties to be involved and exercise control over the outcome. The emphasis is on interests and concerns rather than legal issues, and all parties work together to formulate creative solutions.

Whilst mediation is useful for resolving disagreement at any stage, it is best placed as a process when a solution could not be reached by negotiation, but before any more formal process. Since mediation has the status of a ‘without prejudice’ discussion and matters raised are confidential, the process can continue despite ongoing litigation.

Effective mediators encourage active participation of all parties, listen carefully to the respective interests and feelings of the parties, and generate an atmosphere of openness.

Many parties attending a mediation session for the first time are unsure what to expect or how to conduct themselves. In a negotiation, we normally know the ground rules, know what to expect and can anticipate how matters will proceed. Attending a tribunal or court can be daunting, but, again, most parties realize that proceedings will be quite formal and have some preconceived ideas about what is expected. In a mediation session, parties are often unsure whether they should be prepared for an informal negotiation or more formal proceedings. Clearly it is important that participants feel comfortable about their role as well as understanding what will take place. Part of the skill of the mediator is to create the right atmosphere and manage the expectations of the parties. There is always a tension between allowing everyone the time and space to resolve issues, and the fact that time is usually limited. Parties can ensure that time in the mediation session is used effectively by preparation before the day. Mediation is designed to be quick and easy. The process is flexible and designed to be user-friendly.

Below, are some time-saving tips for parties getting ready to prepare and present their case at a mediation:

• Choose a good mediator or mediation agency. Most mediation organizations will suggest a mediator or provide a list of suitable individuals. There may still, however, be some choice as to the actual mediator.

• Verify the mediator’s experience and qualifications. There is absolutely no point in selecting a mediator who has no knowledge of probate law.

• Understand how probate mediation works. Are there arrangements in place to ensure confidentiality? Where will the mediation be held? Will it be at the office of the mediator or do they parties have to arrange for a neutral venue?

• Study your case. You don’t need to spend much time to effectively prepare yourself for mediation. Mediation is not litigation. During the mediation, you will be discussing the case with the mediator and not presenting evidence like in a trial.

• Make a list of the main facts of your case along with the documents in support of your case and witnesses who can support your case.

• Prepare a brief summary of the case that you can hand over to all the parties before the mediation. Do not hand over any confidential information to the other party.

• You should know which are the essential documents that you need to support your case. Mediation aims to look at the future and not the past.

• Review your case and understand your strengths and weakness. The review the other party’s case and make a list of their strengths and weakness.

• Keep in mind your potential settlement range. How much are you willing to let go to put and end to the dispute as soon as possible so that the probate process can be completed and the will probated.

• You need to know who will be attending the mediation – whether any one else besides the two parties and their attorneys will be attending the mediation and if so what will their roles be.

• You should prepare and practice a short opening statement for the first joint session. After introducing yourself, explain the facts of your case and what you are seeking from the case. Be concise. Be graceful in accepting any weakness in your case. Be reasonable. If you are in agreement with any statement of the other party, let the mediator know your views.

• Describe all previous attempts made by you to settle the dispute. Stress that you are keen to settle the probate dispute and move on. In probate mediation, everyone will be looking to what is in the best interests of the parties, even though there may be disagreement; it may be helpful to acknowledge this.

• You should be willing to consider creative settlement options that may be suggested by the mediator. Nothing suggested by a mediator is binding on any of the parties unless it is signed by all the parties.
Finally, remember that a vast majority of mediation sessions do generally end in a settlement. Even if no settlement is reached, mediation can help greatly reduce the number of disputed issues in the probate. Invariably you will have gained an understanding of some of the difficulties, learnt more about the other side’s case and perhaps learnt some new aspects of your own.

The mediator must possess a number of skills. To facilitate effectively, the mediator should be a convenor, educator, communicator, counsellor, translator, questioner and clarifier, confidante, diplomat, manager of the process, reality-checker, creative genius, wordsmith and draftsperson. In summary, the mediator’s ultimate role is to do anything and everything within their power to assist the parties to reach a settlement.

A mediator should not, however, feel personally obligated to ensure the parties reach a settlement, as trying too hard, or taking ownership or a personal interest in the resolution of the disagreement would be counter-productive. The parties bring their disagreement, and it must always be for the parties to arrive at their own solution with the assistance and facilitation of the mediator.

Broker/case manager

The mediator or case manager should encourage the parties into the process, manage the interaction between the parties and arrange the mediation session, setting appropriate ground rules.

Information source

Parties need to be educated about the process of mediation. This will include information on other alternatives, how issues can be addressed in mediation, what types of resolution can be expected and how these can be enforced.

Counselor

Listening and empathy skills are essential in mediation. Parties must feel that their concerns are being taken seriously. Effective mediators often use visual aids, such as flipcharts to note the main points made by parties so that their contributions are explicitly acknowledged. In facilitative mediation, care must be taken to acknowledge concerns but not to side with one party or appear judgmental, which could compromise impartiality.

Investigator

The mediator must look behind the problem to unlock the real obstacles to agreement. This may involve asking open questions and keeping an open mind. Parties’ statements need to be probed and important leads followed.

Translator

The mediator should reframe, rephrase or explain communications where necessary to ensure that statements are better understood. Reframing is an important skill, especially useful in cases of strong communications, such as a demand for an apology.

Every significant statement made in mediation should be summarized by the mediator who should check their own understanding. Assumptions can be damaging, and the process of clarifying and checking understanding also serves to build confidence and establish rapport. An effective mediator is an active listener who summarizes points made and ensures absolute clarity of communications.

Keeping confidentiality and managing sensitive information is key to the effectiveness of the mediation process. A mediator should ensure that they present as a person in whom the parties may confide. By explaining the confidentiality of the process and refusing to compromise on this, and by checking what may be revealed at the end of each private session, the mediator demonstrates his/her commitment to confidentiality of communications and builds trust in the process.

An effective mediator must be able to deal with tensions and emotions in a sensitive and impartial manner and without negative comment. Managing tensions is an integral part of the process, turning hostility or resentment into constructive thinking. An effective mediator is able to recognize when tensions may be useful in a shared environment, and when it would be better to split the parties and deal with them in private session. The mediation process allows such feelings to be aired. Once parties have had this opportunity, and observed the strength of emotions, the consensus-building approach can be started.

Manager of the process

The mediator must build confidence in his/her own ability to manage the process and the interaction between the parties. For this, it is important to be clear, organized, decisive and confident, consulting all parties and developing a clear agenda. Parties will often challenge the decisions of the mediator, but after time an effective mediator comes to be trusted to suggest procedures for making progress, deciding the order of meetings, etc. Persuasion and presentation skills are important with the mediator appearing relaxed and engaged and presenting information positively. Maintaining authority must be balanced with a flexible approach.

Reality-checker

An effective mediator challenges assumptions, plays devil’s advocate and questions the practicality of suggested solutions. This is generally known as ‘reality-checking’ and an effective mediator is able to do so in a non-judgmental way, helping the parties to explore their own solutions and ensure that all perspectives are considered.

The parties have to come up with their own solutions, but an effective mediator may offer options for consideration by asking creative questions.
Avenues of collaboration should be explored and problem-solving skills are essential to help the parties reach agreement. An effective mediator avoids premature commitment to solutions but helps to generate the right atmosphere for creative problem-solving. Brainstorming and ‘thinking outside the box’ are useful skills for promoting creative solutions. An effective mediator provides the right prompts for creative thinking, and asks questions that cause parties to think in a wider way.

In the same way that apologies may need reframing, an effective mediator is able to come up with language acceptable to all parties in writing a memorandum of settlement. Good use of written communications and ability to draft a written agreement that sticks are essential skills of an effective mediator.

If the court has directed that you resolve your probate dispute through mediation, consult an experienced Orem Utah probate lawyer.

Orem Utah Probate Lawyer Free Consultation

When you need help with a will, trust, power of attorney, health care directive, estate litigation, estate mediation, or probate matter, please call Ascent Law LLC for your free consultation (801) 676-5506. We want to help you.