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Document Type

Article

Abstract

Mediation has the power to bring parties to a different level of understanding about their underlying situation and about each other, to re-establish family harmony and to resolve both monetary and relationship issues that probate matters generally involve. To realize these advantages, this paper makes two suggestions. First, attorneys should urge testators to consider dispute resolution provisions in their will. Such provisions allow the testator to weigh in with a directive that the family pull together and attempt to resolve its conflicts creatively. A dispute resolution clause can also provide a vehicle to express and encourage family values connected with the way in which family members communicate with each other, value each other and resolve family conflict. Second, attorneys and mediators operating in the probate arena should tap mediation's full powers to address all the negotiable issues the parties may have (not just the legal causes of action), so that mediation's full potential to resolve the entire universe of issues presented by a conflict is not constrained by the blinders that attorneys wear when they operate in an adjudicative context.

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