Short answer

Heirs can resolve an elective share dispute through mediation by preparing documentation, identifying the issues, selecting a mediator experienced in probate disputes, agreeing on ground rules, exchanging valuations and offers, and drafting a binding settlement that the parties file with the probate court (if needed). Mediation is often faster and less expensive than litigation and keeps settlement terms confidential.

Detailed answer: step‑by‑step process under Virginia law

1. Understand what an elective share is

In Virginia, the elective share is a statutory protection that allows a surviving spouse to claim a portion of the decedent’s estate despite the terms of a will. The elective‑share rules that govern the spouse’s right and calculation are part of Virginia’s decedents’ estates statutes. For the statutory text and details, see Virginia Code, Title 64.2 (Decedents’ Estates): https://law.lis.virginia.gov/vacode/title64.2/. (If the surviving spouse has already filed an election, that changes the procedural posture.)

2. Confirm the procedural posture and deadlines

Before proposing mediation, confirm whether a surviving spouse has filed a statutory election and whether any probate deadlines or court orders apply. Check the probate file and talk to the personal representative or probate attorney to learn whether the estate is open, whether the election is pending, and whether the court has already set hearings. Mediation will be most useful before a final court ruling, but it can still work after formal litigation has started.

3. Gather documents and build a clear, shareable record

Heirs should collect and organize materials that show the estate’s assets, liabilities, transfers during the decedent’s life, the will or trusts, beneficiary designations, and appraisals. Typical documents include:

• Copy of the decedent’s will and any codicils or trusts
• Letters testamentary or letters of administration
• Account statements, deeds, titles, and life‑insurance beneficiary forms
• Appraisals or business valuations (or a plan to obtain them)
• A timeline of major transfers or gifts the parties dispute

4. Identify the legal and factual issues to mediate

Clarify whether the dispute is:

• Whether the spouse validly filed an election;
• How to calculate the elective share (value of estate, deductions, and credits);
• Whether certain transfers should be included in the elective‑share calculation;
• Allocation of particular assets (cash vs. real estate vs. retirement accounts);
• Timing and tax consequences of settlement options.

5. Propose mediation and choose the mediator

Heirs (often through counsel or the personal representative) should propose mediation to the surviving spouse and their attorney. Decide whether the mediation will be:

• Court‑ordered or voluntary;
• In‑person, virtual, or hybrid;
• Facilitated by a private mediator with probate/estate experience or a court ADR program mediator.

Virginia courts and the Virginia Judicial System have ADR resources that may help locate mediators and explain court‑referred mediation programs: https://www.vacourts.gov/court_programs/adr/index.html.

6. Prepare confidential mediation statements and valuations

Each side should prepare a short, candid mediation statement that summarizes its view of the facts, the legal position, key documentary support, and a realistic settlement range. Include valuations and appraisals or a plan to obtain them. These statements help the mediator assess the strengths and craft settlement options.

7. Agree ground rules and confidentiality

Agree in writing to mediation ground rules: who may attend, whether offers are confidential and inadmissible in court, whether a neutral expert can be used, and who will pay mediator fees. Most mediators will provide a mediation agreement describing these rules. Confidentiality encourages frank negotiations.

8. Participate actively and realistically in the mediation session

During the session, present your priorities but remain flexible. Consider non‑monetary tradeoffs (e.g., keeping a family home, a timeline for distributions, tax allocation, or structured payments). Mediators will often shuttle offers and help parties bridge valuation gaps.

9. Document and finalize any settlement

If parties reach terms, have counsel reduce the agreement to a written settlement and release that clearly describes the assets, payments, timing, tax treatment, and enforcement mechanisms. If the estate is in probate, the parties may need to submit the settlement to the probate court for approval or to obtain an order implementing the agreement. Keep a record of all documents submitted to the court.

10. If mediation fails, preserve rights and consider limited follow‑up

If mediation does not produce a deal, preserve all court deadlines and evidence. Consider limited follow‑up mediation sessions after targeted discovery or valuation work. Mediation is often more productive after parties narrow the factual disputes.

Practical considerations under Virginia law

• Virginia’s decedents’ estates statutes govern the elective share framework; review Title 64.2 for statutory language and definitions: https://law.lis.virginia.gov/vacode/title64.2/.
• Court involvement: some probate courts encourage or require ADR for contested estate matters. Check local circuit court rules and the probate docket.
• Timing: mediation is most useful before final orders; however, courts often approve mediations and settlements after partial litigation if the parties request court approval.

Helpful hints

• Start early: propose mediation as soon as you identify the dispute. Early mediation saves time and expense.
• Use a mediator with probate and estate experience. Technical knowledge speeds resolution.
• Prepare a fair, concise mediation statement focused on valuation and key legal points.
• Address tax consequences and timing in settlement offers—these often derail later implementation if ignored.
• Consider creative solutions: deferred payments, partial asset transfers, life estates, or buy‑outs to avoid selling family assets.
• Keep confidentiality: mediation offers are usually inadmissible in court and encourage honest negotiating.
• If you don’t have counsel, consider at least a brief consult with a Virginia probate attorney before mediation to review the statutory implications and the probate file.