California public policy favors the mediation of litigated estate, trust and elder financial abuse disputes. Mediation communications are confidential - part of a legislative effort to promote effective mediation.
This confidentiality is a recognition that candor is necessary to a successful mediation. The confidentiality shield for such candor prevents a later challenge to the frank expression of views during a mediation.
So, it is one thing to have legislative protections of mediation confidentiality and quite another for litigating parties to enter into meaningful mediation. Mediated settlements ultimately reflect the disputing parties' assessment of their own interests coupled with a decision that continuing litigation seems less attractive than a settlement. In other words, the "deal no-deal" balance favors the deal.
Litigation of beneficiary and inheritance disputes often wind its way into a mediator's boardrooms. The parties are usually separated, and a neutral third party, a mediator, seeks the common ground that might result in a settlement. The process is rarely instant, and serious negotiations often take place late in the day after the parties have felt the weariness that characterizes a litigation battle.
The mediation process itself requires a number of decisions. Mediator selection, efforts to understand the negotiating style of opposing parties as well as the mediator, and the identification of barriers to agreement are part and parcel of the mediation process. A great mediator will focus on factors that can surmount these barriers.
Experience in mediation counts - it is not the only thing that counts, but it definitely counts.
It takes experience to recognize various categories of negotiating styles. There are some general styles and some that are very peculiar. Whatever styles make up the process, mediators will often remind the parties that mediation allows them to choose their settlement and not have a third party - a judge or jury - impose a resolution on them.
It's important to know that in estate, trust and elder financial abuse litigation, there will likely be a time that you and the opposing party arrive at the same conclusion - the deal no-deal balance favors a deal. The terms of the deal will be unique to the litigation at hand.
If you have a trust beneficiary or disinheritance dispute and you want to talk about it, call us at Hackard Law (916) 313-3030. We represent clients in most of California's major urban areas including Sacramento, the Bay Area, Los Angeles and San Diego.
We take cases where we think that we can make a significant difference and there is a wrongdoer who can be made financially responsible for their wrongdoing.