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From our “Ask a Question” Mailbag: Is there an alternative to Orphan’s Court Litigation?
Normally, if a dispute regarding a Will or Trust cannot be settled between the parties, the dispute is heard by one of the Orphans’ Court Judges. These hearings can last several days, require months of preparation, may involve dozens of witnesses and experts costing the parties large sums of money. In some cases, this is the only way to settle the dispute. In other cases Mediation is a reasonable alternative to an Orphan’s Court hearing.
What is Mediation?
Mediation is the process by which a Mediator outside of a courtroom aids conflicting parties to reach a mutually acceptable resolution.
Is Mediation Mandatory?
Mediation in Pennsylvania is not mandatory; so all the parties must first be willing to mediate. If they are, your Orphans’ Court Attorney will circulate an Agreement to Mediate and request that the Orphans’ Court judge appoint a Mediator. The Mediator will then work with the parties to set up a mediation date.
Why choose to mediate rather than litigate in the Orphans’ Court?
Each case is different, but when the parties’ personalities and the nature of the dispute allow mediation, the costs are generally much lower than a full Orphans’ Court trial. Mediation is also private, so sensitive matters do not become part of a court transcript. The give and take of mediation may provide the parties with results that are more suited to the family rather than a “winner-takes-all” result in the court. These results, at times, allow families the chance to heal wounds that may never heal after they have faced off in a courtroom.
When is Mediation Available?
Mediation is available to any parties whose case would be heard by an Orphans’ Court Judge. This includes guardianships, Will Challenges, Agent and Executor Accountings or other estate disputes.
Typical examples of cases that lend towards mediation are:
Executor Accountings where beneficiaries question actions taken by the executor, disputes between stepchildren and stepparent, and disagreements over who should serve as Guardian of the Person and Guardian of the Estate of elderly persons.
How is a Mediator chosen?
The Orphans’ Court Judge who oversees the case will appoint the Mediator. The Mediator is a Pennsylvania licensed attorney who has had mediation training. The Mediator’s fee is paid by all parties and may be a flat fee, an hourly fee or a combination of the two.
Will my Attorney attend with me?
Your Orphans’ Court attorney will be with you at the mediation. The Mediator and the Orphans’ Court Judge encourage all parties to have an experienced attorney to represent them. An experienced Orphans’ Court lawyer will be able to advise you of the strengths and weaknesses of your position. This knowledge is vital when negotiating a settlement.
All communications made in connection with mediation are confidential. This is a decided advantage for many parties, who may not want certain facts made public in an Orphans’ Court proceeding.
What happens if an agreement is met?
If the parties come to an agreement, it will be put into writing and signed by all parties and the Mediator. This agreement might be made part of the court record. But if the parties wish to keep it confidential, they may have their attorney file a Stipulation of Dismissal. If the parties are unable to reach an agreement, the Mediator will end the mediation and advise the Orphans’ Court judge, who will then reschedule the case for trial.
I hope that this article was helpful in explaining Mediation. Further, I included links to even more detailed information on my website. Therefore, please contact me and let me know how I did. Certainly, your comments and questions are welcome!
Let our Litigation Lawyers help walk you through what can be a confusing process. To begin with, call to speak to one of our experienced Litigation Attorneys. By all means, our lawyers are ready to answer your questions. In fact, feel free to contact our office for a free consultation. Ultimately our goal is to put our 25 years of estate litigation experience to work for you.
Wills, Trusts, Probate, and Estate Litigation It’s All We Do!
Bucks County Will Contest Attorney, Glen Ridenour.
Peter Klenk is the founding member of Klenk Law, a seven attorney boutique estate planning law firm. We serve clients in Pennsylvania, New Jersey, New York, Minnesota and Florida. Peter Klenk received his Masters in Taxation LL.M. from NYU Law School and his J.D. from the University of Minnesota Law School. He served his country in the Navy JAGC during Desert Storm. Easy to talk to, feel free to call Peter for an appointment. We will make the process as easy as possible!
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