How to Resolve Disputes Between a Surviving Spouse and Children of Another Marriage
Talk to the other party., Choose a mediation service., Give opening statements., Attempt joint discussion., Move to separate rooms., Engage in final negotiations., Get any agreement in writing.
Step-by-Step Guide
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Step 1: Talk to the other party.
Since mediation is a voluntary process, it's essential that the other party is willing to attempt mediation to resolve the dispute.
Emphasizing the benefits of mediation over litigation can help persuade them.Mediation is a collaborative process designed to help both parties find a mutually acceptable solution to their dispute.
You have a lot of freedom to be creative with your solution, including finding a compromise that would not be available if you had a judge resolve the matter through traditional litigation.
Another benefit of mediation is that all discussions and negotiations between the parties are confidential.
In contrast, a probate dispute in court is a matter of public record.
Confidentiality may be preferred if you are concerned about sensitive family details being exposed in public court.
Mediation also is focused on preserving family relationships.
In some situations, there may not be any relationship between the surviving spouse and the children from another marriage that is worth preserving.
However, even if there is no love lost between the two parties, other members of the family will be touched by a contentious, drawn out public probate dispute. -
Step 2: Choose a mediation service.
There are a number of mediation services available in most areas from which you can choose, so contact the clerk of the probate court to find out which services are court-approved and recommended for resolving probate disputes.The clerk typically will have a list of particular mediators or mediation services from which you can choose.
Focus on mediation providers on this list, as they are more likely to specialize in probate disputes.
Various mediation services in your area may have expertise in different areas of the law, but you need a mediator who understands probate issues.
Depending on the procedures of the probate court where the deceased person's will has been filed, you may be assigned a mediator, may choose one on your own, or may send a notice to the other party with two or three choices.
Once you've chosen the mediator, you'll need to call and make an appointment.
The mediation appointment is relatively casual and you don't need an attorney, but you may want to hire one if you feel more comfortable doing so, or if you know the other party already has hired an attorney. , Once you arrive at the mediation appointment, the mediator will provide an introductory statement and discuss generally the mediation process.
Then each party will be given the opportunity to tell their side of the story.Unlike an opening statement in a civil court proceeding, your opening statement in mediation need not be formal and shouldn't be adversarial.
Simply explain your position and how you'd like to resolve the dispute.
Keep your statement civil and avoid making emotional outbursts or personally insulting the other party.
It can be helpful to focus on "feel" statements – rather than accusing the other party of holding particular motives or intending to hurt you, tell the mediator and the other party how the actions of the other party make you feel.
For example, if you are the child of a previous marriage and your father's will is being probated, you might say that your father promised you his classic automobile, and his surviving spouse's desire to sell the car make you feel as though she is trying to cheat you out of a family heirloom of intense personal significance and value. , Typically, the mediator will work with the parties to identify specific details on which you both agree to find the common ground from which a productive discussion to resolve the dispute can spring.As much as you may want to interrupt or argue with the other party, try to keep the discussion as civil and rational as possible.
Instead of focusing on the points of disagreement, try to find statements on which you can agree – even if that's only a recognition that all parties loved the deceased person and want to respect their wishes. , After the issues at the core of the dispute are isolated, the mediator will direct each party to caucus apart from each other.
The mediator moves back and forth between you and attempts to facilitate a compromise.Expect the mediator to visit with you several times.
He or she will move back and forth between your room and the other party's room, attempting to find the root of the disagreement so the problem can be amicably resolved.
Separating the parties makes the situation less confrontational and can allow you to look at the facts rationally rather than being distracted by anger at the other party.
The mediator will outline the concerns of each party and deal with each one in turn.
Once one concern is resolved, the mediator will move on to the next one.
If you have any evidence relevant to the dispute, such as a letter the deceased person sent to you promising a particular piece of property, or describing their estate plans, you can bring these things with you.
You also may want to bring witnesses – or statements from witnesses – regarding the issues at the heart of the dispute.
Mediation doesn't follow the same strict rules of evidence that are used in courts, so written statements from other people are perfectly acceptable. , When the mediator feels you are close to finding a compromise and resolving the dispute, they will bring the entire group back together to the same table to hammer out the details.Assuming you're able to resolve many of the core issues, the mediator will decide when you are in a good position to complete the agreement face to face.
The mediator will be focused on facilitating a compromise that satisfies both parties as well as leaving you both feeling relatively good about each other, putting any spite or anger behind you. , If you are able to resolve your probate dispute through mediation, the details of that resolution must be put into a written contract signed by all parties if you want it to be legally enforceable.Typically the mediator will outline the terms you've all discussed and go over them to make sure they're acceptable, then write up a contract.
Once the contract is signed by all parties, it becomes legally binding and enforceable in any court of law.
Depending on the nature of the dispute, you may have to file the mediation settlement agreement with the probate court.
This is especially true if a lawsuit already was filed that was related to the dispute. -
Step 3: Give opening statements.
-
Step 4: Attempt joint discussion.
-
Step 5: Move to separate rooms.
-
Step 6: Engage in final negotiations.
-
Step 7: Get any agreement in writing.
Detailed Guide
Since mediation is a voluntary process, it's essential that the other party is willing to attempt mediation to resolve the dispute.
Emphasizing the benefits of mediation over litigation can help persuade them.Mediation is a collaborative process designed to help both parties find a mutually acceptable solution to their dispute.
You have a lot of freedom to be creative with your solution, including finding a compromise that would not be available if you had a judge resolve the matter through traditional litigation.
Another benefit of mediation is that all discussions and negotiations between the parties are confidential.
In contrast, a probate dispute in court is a matter of public record.
Confidentiality may be preferred if you are concerned about sensitive family details being exposed in public court.
Mediation also is focused on preserving family relationships.
In some situations, there may not be any relationship between the surviving spouse and the children from another marriage that is worth preserving.
However, even if there is no love lost between the two parties, other members of the family will be touched by a contentious, drawn out public probate dispute.
There are a number of mediation services available in most areas from which you can choose, so contact the clerk of the probate court to find out which services are court-approved and recommended for resolving probate disputes.The clerk typically will have a list of particular mediators or mediation services from which you can choose.
Focus on mediation providers on this list, as they are more likely to specialize in probate disputes.
Various mediation services in your area may have expertise in different areas of the law, but you need a mediator who understands probate issues.
Depending on the procedures of the probate court where the deceased person's will has been filed, you may be assigned a mediator, may choose one on your own, or may send a notice to the other party with two or three choices.
Once you've chosen the mediator, you'll need to call and make an appointment.
The mediation appointment is relatively casual and you don't need an attorney, but you may want to hire one if you feel more comfortable doing so, or if you know the other party already has hired an attorney. , Once you arrive at the mediation appointment, the mediator will provide an introductory statement and discuss generally the mediation process.
Then each party will be given the opportunity to tell their side of the story.Unlike an opening statement in a civil court proceeding, your opening statement in mediation need not be formal and shouldn't be adversarial.
Simply explain your position and how you'd like to resolve the dispute.
Keep your statement civil and avoid making emotional outbursts or personally insulting the other party.
It can be helpful to focus on "feel" statements – rather than accusing the other party of holding particular motives or intending to hurt you, tell the mediator and the other party how the actions of the other party make you feel.
For example, if you are the child of a previous marriage and your father's will is being probated, you might say that your father promised you his classic automobile, and his surviving spouse's desire to sell the car make you feel as though she is trying to cheat you out of a family heirloom of intense personal significance and value. , Typically, the mediator will work with the parties to identify specific details on which you both agree to find the common ground from which a productive discussion to resolve the dispute can spring.As much as you may want to interrupt or argue with the other party, try to keep the discussion as civil and rational as possible.
Instead of focusing on the points of disagreement, try to find statements on which you can agree – even if that's only a recognition that all parties loved the deceased person and want to respect their wishes. , After the issues at the core of the dispute are isolated, the mediator will direct each party to caucus apart from each other.
The mediator moves back and forth between you and attempts to facilitate a compromise.Expect the mediator to visit with you several times.
He or she will move back and forth between your room and the other party's room, attempting to find the root of the disagreement so the problem can be amicably resolved.
Separating the parties makes the situation less confrontational and can allow you to look at the facts rationally rather than being distracted by anger at the other party.
The mediator will outline the concerns of each party and deal with each one in turn.
Once one concern is resolved, the mediator will move on to the next one.
If you have any evidence relevant to the dispute, such as a letter the deceased person sent to you promising a particular piece of property, or describing their estate plans, you can bring these things with you.
You also may want to bring witnesses – or statements from witnesses – regarding the issues at the heart of the dispute.
Mediation doesn't follow the same strict rules of evidence that are used in courts, so written statements from other people are perfectly acceptable. , When the mediator feels you are close to finding a compromise and resolving the dispute, they will bring the entire group back together to the same table to hammer out the details.Assuming you're able to resolve many of the core issues, the mediator will decide when you are in a good position to complete the agreement face to face.
The mediator will be focused on facilitating a compromise that satisfies both parties as well as leaving you both feeling relatively good about each other, putting any spite or anger behind you. , If you are able to resolve your probate dispute through mediation, the details of that resolution must be put into a written contract signed by all parties if you want it to be legally enforceable.Typically the mediator will outline the terms you've all discussed and go over them to make sure they're acceptable, then write up a contract.
Once the contract is signed by all parties, it becomes legally binding and enforceable in any court of law.
Depending on the nature of the dispute, you may have to file the mediation settlement agreement with the probate court.
This is especially true if a lawsuit already was filed that was related to the dispute.
About the Author
John Young
Experienced content creator specializing in practical skills guides and tutorials.
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