Why Litigation Often Means Mediation
Want to litigate? Then be prepared to mediate.
Judges love mediation—a form of alternative dispute resolution—and will require it in almost every civil litigation case before the case can proceed to a final trial.
Even if you think you’ll never be part of a lawsuit, you should know about mediation. Many people end up in probate court not by choice, but because a relative died or someone became incapacitated.
Probate Court Cases and Mediation
Common contested probate cases include:
- Family trusts
- Probate disputes
- Guardianship cases
These cases often involve:
- Strong emotions
Money and asset disputes - Power struggles
- Bitterness among family members
That’s where mediation comes in—it offers a pathway to resolve the case without going through a costly and unpredictable trial.
How the Mediation Process Works
Step 1: Appointment of a Mediator
A neutral, experienced third party is appointed as the mediator. The date, time, and place for the mediation are set, and parties are required to attend. Each party typically pays a share of the mediator’s fee.
Step 2: Discussion and Evaluation
The mediator:
- Works with both parties and their attorneys
- Evaluates the strengths and weaknesses of each position
- Provides honest, frank assessments of the case
Step 3: Confidentiality
The process is entirely confidential. The mediator must get permission to share any information with the other side.
What to Expect in Mediation
- Adjusting expectations: An opening offer is rarely the final offer.
- Repetition of “no”: Expect to hear “no” multiple times before movement happens.
- Flexible duration:
- Many mediations last 1 day.
- Some wrap up in a half-day.
- Others stretch into late nights—or even over multiple days or weeks.
The Outcome of Mediation
A successful mediation results in a settlement. Since compromise is the foundation, most parties walk away at least a little unhappy. They must weigh:
- Giving up certain demands
- The risks and unknowns of trial
- The costs of appeals and ongoing litigation
Attorney Preparation for Mediation
Early Strategy
Since mediation is inevitable in most cases, attorneys prepare from the start by:
- Gathering evidence
- Researching unfavorable law for the opposing side
- Building a persuasive case for mediation
Client Preparation
Attorneys guide clients through:
- Possible trial outcomes—from best-case scenarios to worst-case losses
- The financial and emotional costs of trial
Pre-Mediation Briefing
Before mediation, attorneys send the mediator a detailed brief including:
- Party introductions and relationship backgrounds
- A backstory of the conflict
- Key issues to resolve
- Asset and damage lists
- Relevant documents (wills, marital agreements, trusts) with disputed provisions highlighted
- A history of prior settlement negotiations
Why Mediation Often Beats Trial
If you’re in a contested case, embrace mediation because the alternative is far less appealing.
Trials are:
- Risky – outcomes are unpredictable
- Expensive – legal fees can skyrocket
- Time-consuming – delays and appeals can drag on for years
Mediated settlements offer:
- Faster resolution
Lower cots - Greater control over the outcome
Faced with that, a mediated settlement starts to look pretty darn good.
How Mediation Can Protect You — and How Hammerle Morris Can Help
At Hammerle Morris Law Firm, we understand that disputes over trusts, estates, and guardianships can be deeply emotional and financially draining. Mediation provides a constructive path forward—confidential, efficient, and designed to give you more control than a courtroom battle ever could.
Whether you are already in the middle of a contested matter or simply want to explore your options for resolution, our team will guide you through the process, protect your interests, and help you pursue a settlement that preserves both relationships and resources.
Schedule a consultation today to ensure your decisions are informed, strategic, and legally protected.
Virginia Hammerle is an accredited estate planner and represents clients in estate planning, probate, guardianship, and contested litigation. She may be reached at legaltalktexas@hammerle.com. This blog contains general information only and does not constitute legal advice.
