Mediation in a Contested Guardianship

Mediation is an informal process that allows the parties in a lawsuit to negotiate a resolution without the necessity for having a judge or a jury determine the outcome of the case. In its most basic form, mediation can be described as a “negotiation facilitated by a third-party.”

In the typical situation, a neutral third-party mediator will sit down with the parties and their attorneys, either in the same room or in separate rooms, and attempt to bring the parties to a voluntary resolution of their lawsuit before a Court is required to determine the outcome against the interests of at least one of those parties.

Many people often prefer mediation because the process is private, voluntary, and informal. Accordingly, a mediation can be crafted to address as few or as many issues as are prompting the continued litigation, and everything said and done within the mediation is completely confidential and cannot be shared with anyone outside the mediation. As a result, mediation allows the mediator and the parties to collaborate to develop a workable resolution to the lawsuit, rather than each party running the risk of losing at trial.

In a litigated guardianship case, the parties may have more than one goal in the lawsuit: protecting a loved one’s assets, protecting the loved one’s health and well-being, keeping other family members from unreasonably restricting access to the loved one, ensuring better living conditions for the loved one, etc. Because of the extremely contentious nature of many litigated guardianship cases, the Texas Probate Code allows Courts to disqualify all of the parties from serving as the guardian, which means that a trial of the case could ultimately result in all of the parties losing at trial by having the Court appoint an outside party as guardian.

Inasmuch as contested guardianships can involve a wide litany of issues which may not be simply “dollars and cents,” a guardianship mediation has to focus on addressing not only the legal issues of protecting estate assets, choosing a guardian or decision-maker, etc., but the guardianship mediation must also attempt to allay the underlying family conflict that may be driving the litigation. Although a Court will focus only on the legal issues, a mediation of a contested guardianship can address the entire gambit of issues which may be causing strife between the parties. Likewise, the guardianship mediation allows the parties to choose the outcome for their loved one, rather than running the risk that the Court might appoint an outside, unrelated party to be placed in charge of making decisions for your loved one.

Ford & Mathiason LLP offers Mediation Services specifically in the area of contested guardianship cases. For more information about these services, please refer to the Mediation Services page of our website.