The Inappropriate Imposition of Court-Ordered Mediation in Will Contests

Abstract:     
Following the successful implementation of court-ordered mediation programs in divorce and family law cases, similar programs are being adopted to mandate the use of mediation in other areas of litigation. Complex emotional and personal issues can easily transform inheritance into a destructive process, and an increasing number of courts are ordering probate disputes and will contests to mediation.

The freedom of the individual to designate his heirs is a foundational norm that permeates doctrine in the law of wills, and as a result, the idea of testator intent has reached near-mythical stature. Conversely, mediation shapes settlement without rigid deference to legal rules and often marginalizes the intent of the testator as an impediment to reaching agreement. Because the approach taken in mediation directly conflicts with the legal rules applied by the courts adjudicating those same cases, a legitimate question is raised as to whether or not instituting court-ordered mediation programs that mandate mediation in will contest cases is appropriate. The contention of this Article is not that mediation is inappropriately used by the parties to a will contest case, but instead that court-ordered mediation is inappropriate. Mandatory mediation imposes an obstruction on the right of access to the courts that is inappropriately imposed when the process contravenes the substantive law of the case. This Article proposes an easily-implemented legislative solution that resolves the conflict between law and process.

Number of Pages in PDF File: 22

Keywords: Mediation, Will, Testamentary Intent, Court-Ordered Mediation, Probate, Will Contest

Accepted Paper Series