Mediation

By: David M. Frees III, JD Estate and Trust Dispute Mediation

Estate disputes occur when the heirs of a decedent cannot agree on the division of property or assets of the decedent’s estate, either because no will was left, because the will did not incorporate or cover all assets or property being disputed, or because the will is being challenged. When a dispute over a trust or estate breaks out among family members, the ramifications can be costly, both financially and personally. Bonds can be tested and, in some cases, broken in ways that can take years to repair. These strains an stressed relationships are also often associated with estates involving real estate. closely held businesses, or other non liquid assets.

In the most dramatic and unfortunate cases, estate disputes can go to court, and all of the parties will be forced to spend tens of thousands of dollars or more on litigation and attorney’s fees, not to mention the risk of severing the familial bond once and for all.

Fortunately, there are alternative dispute resolution procedures that parties of an estate dispute can pursue in lieu of going to court, and one of them is called mediation – an informal, non-binding resolution service provided by an objective third party who examines both sides of the dispute and makes recommendations that are intended to be the most fair, based on the facts.

Common estate disputes which can be resolved by mediation often include:

• interpretations of a decedent’s will;
• trustee or executor fees;
• attorney’s fees;
• distribution of assets in lieu of a will; and
• mismanagement by an executor or trustee
• disposition of personal or other assets
• elections by a second spouse to take against a will

There are other family disputes that may be solved preferentially through mediation or another form of alternative dispute resolution, arbitration, but the above are some of the more prevalent reasons. Using mediation to solve a dispute prevents the assets of the estate or trust from being eaten away by the exorbitant costs of litigation in court.

If a dispute over a trust or estate has erupted in your family, you can benefit from mediation services for a number of reasons: not only are the costs of mediation substantially lower than those of litigation, but the process is also less time consuming. Another vital reason to pursue mediation is because it’s a private matter -unlike in the instance of a court case or trial, there will be no public record of the dispute or of its resolution. This is a valuable feature to families and parties who wish to preserve the privacy of their affairs.

Advance estate planning can often spare a family from an ugly estate dispute, but these preparatory steps aren’t always taken. It’s vital that you explore the potential of mediation before making the decision to take your family member to court over an estate, trust, will or inheritance.

If you are a beneficiary of a disputed estate or trust, or you’re an attorney representing parties to such a dispute and you would like more information on David Frees as a mediator, call 610-933-8069 for a telephone conference to determine if mediation is right for your matter.

Whether it’s collaborating with your tax advisors, assisting with the filing of Federal Estate and Gift Tax Returns and Pennsylvania Inheritance Tax Returns, or providing services to facilitate the resolution of estate and trust administrations, the mediators and neutral arbitrators in our firm are dedicated to providing mediation and arbitration services designed to preserve family relationships, and whenever possible, to resolve family disputes without court intervention.

David Frees

David is a partner in the Pennsylvania law firm of Unruh Turner Burke & Frees, PC with offices in West Chester, Malvern, and Phoenixville, PA. For more information on how David M. Frees could assist you as an independent mediator, contact David Frees in our Phoenixville office.

By: Donald C. Turner

The success of a mediation often depends on the mediator and his or her ability to bring the parties together and help them bridge the gap between their different positions. When selecting a mediator the parties should consider, among other things, the mediator’s style, the mediator’s subject matter expertise, and the mediator’s training and experience.

A mediator’s style is often classified as either facilitative or evaluative. Those of a facilitative style focus on fostering communications between the parties and refrain from evaluating each party’s position. On the other hand those mediators who employ an evaluative approach share their opinion as to the strengths and weaknesses of each party’s position. Often a successful mediation requires the mediator to employ both approaches, frequently starting with a facilitative approach to promote communication and then employing the evaluative approach to ultimately bridge the final gap between the parties positions.

The parties should also consider the mediator’s expertise as to the subject matter in issue. If the mediator does not have subject matter expertise the mediation may take longer in order to provide the mediator with the requisite knowledge to effectively perform his or her task. Subject matter expertise is particularly important if the parties believe an evaluative approach is needed to achieve a resolution.

The parties should also consider the mediator’s training and expertise because, like in some many other things, in reaching a successful mediation, there is often no substitute for knowledge and experience.

Donald C. Turner

The mediator is a critical component to a successful mediation and the parties are therefore well advised to carefully consider who should serve as the mediator.

Donald C. Turner is a partner in the Pennsylvania law firm of Unruh Turner Burke & Frees, PC with offices in West Chester, Malvern, and Phoenixville, PA. For more information on how Donald C. Turner could assist you as an independent mediator, contact Donald C. Turner in our West Chester office.

By: Donald C. Turner

One of the keys to a successful mediation is knowing when it is time to mediate. Starting a mediation prematurely is unlikely to lead to a resolution and often makes the parties disinclined to try mediation at a later point when it might very well be successful.

So what is the optimal  time to start the mediation? It is not an easy question to answer but one thing is clear:  a mediation is highly unlikely to lead to resolution if it occurs before all parties have all the relevant information.  This is so because the parties simply can not evaluate whether a proposed settlement is warranted before all the relevant information is at their disposal. As a result in the litigation context, most  mediations should not commence before all relevant discovery has been completed.  Oftentimes impending deadlines provide a fruitful time to start a mediation.  This is why so many mediations are successful when conducted on the verge of trial.  At that point the parties are often times more inclined to compromise in order to avoid the uncertainty and expense of trial.

In summary don’t start a mediation before all parties have all required information at their disposal and once they do consider what deadlines might be used to facilitate compromise.

Donald C. Turner

Donald C. Turner is a partner in the Pennsylvania law firm of Unruh Turner Burke & Frees, PC with offices in West Chester, Malvern, and Phoenixville, PA. For more information on how Donald C. Turner could assist you as an independent mediator, contact Donald C. Turner in our West Chester office.