When the natural parents of a minor are deceased or become otherwise incapable of caring for their child, the issue of legal guardianship comes into play. Guardianship pertains to a type of legal arrangement which places the minor or ward in the care and custody of an individual of good moral standing and who has the best interest of the child in mind.
In some cases, even individuals who are not minors can be placed under legal guardianship, especially if they’re incapacitated, mentally ill, or otherwise unable to make legal decisions on their own.
While there is the option to take a guardianship dispute to court, most legal experts will advise you to undergo mediation instead. These processes are much less adversarial and may bring disputes to a close without the need for time consuming and expensive court battles.
Top Reasons Why You Want to Mediate Guardianship Disputes
Reduced Costs – To settle the issue of legal guardianship in court, an individual must hire an attorney in order to properly and efficiently present all of his evidence and arguments throughout the proceedings. Of course, individuals do have the option to represent their own side. However, without the sufficient legal knowledge and background, it’s very likely to misrepresent yourself. What’s more, if the opposing party has a professional legal expert on their side, your lack of experience may very well be taken advantage of.
Aside from the cost of the attorneys, there are several different fees that need to be paid off before you can start your court case. Filing fees, service fees, witness fees, and in the event that you might want to file for an appeal, appeal fees are also necessary payments that need to be made.
Choosing to undergo mediation can be much easier on the pockets of both parties. For the most part, only mediation fees need to be paid, and the legal professional or attorney hired for the case is a neutral party who simply takes on the role of a mediator to bring all evidence and arguments to light.
Faster Dispute Settlement – Court cases can take months or even years before a decision can be made. That’s because there are several different legal mechanisms that individuals can employ in order to reconsider the judgement of the courts.
For instance, if a party decides that they are unhappy with the outcomes of the first trial, they can appeal for a higher court to re-evaluate their case in the form of an appeal. The courts of appeal, as expected, are very busy especially because majority of those who lose a legal battle will often try to exercise any avenue in order to have the decision overturned in their favor.
Depending on your locality, there can be up to four levels of courts that you can approach to file an appeal. So in the instance that the decision is overturned during the first appeal in your favor, the opposing party has the option to seek another appeal through the higher court. This can be exercised until you reach the highest court allowed for your case.
For this reason, guardianship battles can take a lengthy period of time, especially when both parties continue to seek appeals when a decision is made to benefit the opposing party. Also, because there are several hundreds of cases lined up to be re-appealed, you may have to wait several months or years before the next proceedings. In addition, you should have an experienced mediation professional to make the process as faster as possible.
Mediation on the other hand, can take as little as two weeks to reach a decision. This is because they’re far less adversarial, allowing the parties to discuss their points of view in a more conducive environment. What’s more, any information divulged in a mediation can’t be used as evidence in court, so participants feel less threatened when volunteering their thoughts, opinions, and arguments.
Sets a Positive Tone – Court cases are often seen as a weapon against parties that have opinions or ideas that oppose your own. So individuals who choose to settle disputes in court rarely ever leave in good terms.
It is assumed that when two individuals compete for the guardianship of a ward, they are relatives, friends, or acquaintances. As such, taking the legal dispute to court can seriously damage these relationships, and may even have a toll on the emotional and mental well-being of the ward.
By taking your guardianship dispute through mediation, you set the tone for your relationship with all parties going forward. Because the process can be far less antagonistic, the true objective of the dispute is brought to light – and that is the best interest of the ward or the child. This makes it easier for participants to come to a compromise, even if it sacrifices their own intentions, as the child becomes the central focus of the process.
Although taking a guardianship dispute to court might be the first route on your mind, alternatives like mediation can be much less costly, time consuming, and damaging. Understanding how all parties can benefit from these arrangements can drastically affect the outcomes of your dispute, and may even result to positive conclusions that benefit everyone involved.
Lee A. Drizin is the owner of "Drizin Law | Probate, Estate Planning, Wills and Trusts" company.
For more than 30 years, Attorney Lee A. Drizin has practiced in the areas of estate planning, probate, trusts, guardianship and real estate matters. He has an outstanding track record handling contested probate and administration and has been extremely successful in both jury and non-jury trials. In 2003 Lee founded his law company - "Drizin Law | Probate, Estate Planning, Wills, and Trusts".
Lee has extensive experience in business and commercial real estate transactions, representing both national companies as well as individual buyers and sellers. He is experienced in all aspects of contracts and legal issues which may arise in developing, managing, leasing, or owning a property, including construction issues and contracts, commercial leases, insurance coverage, & disputes with tenants. He often represents real estate licensees in mediations, arbitrations, contested hearings & trials before the Clark County District Court. "