Mediation in Guardianships

Wed, Jun 29, 2011


Florida guardianship attorneyWith most legal proceedings there are two sides, with each side fighting the other for what they feel is right. Whether pursuing a personal injury lawsuit, a civil suit, or disputing a will or trust, there is always someone who is seeking to see their rights validated by a jury or a judge. It is no different when contesting the validity of Florida Wills and the guardianship of minors or adults who are incapacitated.

In cases where guardianship is being contested, some of the time the parties seem to drag each other through the mud and try to discredit the other party because they feel they would be the better choice.  In those instances, they sometimes forget that they should be working together to do what is best for the child or incapacitated adult and their property. There are cases where it can become like a soap opera playing out in the court room. This is when some judges will appoint a mediator in order for the parties to work out their differences and come to an agreement.

A Florida Guardianship Attorney will have a few mediators to refer their clients to, in order to find out the root of their issues so they can be worked out. This is important for the wellbeing of the child or incapacitated adult. Getting a mediator to help oversee the discussion can help keep it on track.  If the parties are contesting a Florida will, they have the burden of proof to show cause that the person chosen by the decedent is unfit to perform the task that was outlined in the will. In the state of Florida, a will must be approved by probate before it can be filed.

The mediator isn’t there to make decisions for the different parties but to be there to make sure that they talks are productive. In some cases, before a mediation session is scheduled, the mediator will hold a caucus, or individual session, with each party.  This way, the mediator hears the party’s view points, which leads to a better understanding of the issues that are holding each party back from reaching a mutually beneficial resolution. It can take one session or multiple sessions to get to the issues of each party, and to possibly resolve them.

Even if an agreement isn’t reached, it isn’t because the session was a failure; each party comes away with some idea of the issues at hand from the other person’s point of view. A Florida guardianship attorney may be allowed in the sessions as long as they follow the guidelines of the mediation. If an agreement is reached, whether oral or written, it can be considered a binding stipulation or contract. This can be brought to court and the judge will be informed of the agreement and can base his decision on the agreement. If the burden of proof isn’t met while contesting the will, the judge will have to rule in accordance with the will. In any case, keeping it civil will make the whole mediation process smoother and may cut back on time and court costs.

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