As the parents of the baby boom generation age and begin to transfer their wealth to the next generation, we can expect to see an increase in the number of estates, trusts, and probate-related disputes. A growing number of lawyers has begun to realize the benefits of using mediation to resolve these types of conflict. Probate-related cases are ideally suited for mediation because the continuing relationships inherent in any family situation can suffer dramatically in the legal rights-oriented maneuvering of litigation but can be preserved and even enhanced by the cooperative problem-solving approach of mediation. Even when the dispute is between family members and others, mediation is well suited to airing and acknowledging the complicated emotional issues that often underlie and can prevent settlement of these cases and developing flexible solutions to accommodate the parties' varying interests.

Consider the following fact situation adapted from an actual case: A large family divides its loyalties between two warring brothers and each side remains estranged from the other for twenty years until one of the brothers dies. The decedent's live-in girlfriend attempts to probate a portion of a copy of an old will leaving to her the decedent's homestead, but is challenged by the estranged brother, supposedly on behalf of the entire family, because he believes that the proponent destroyed the original of the last true will and testament of his brother and is trying to take something not rightfully hers. If the copy of the will is thrown out, he stands to inherit a greater portion of his brother's estate by intestate succession than he would otherwise, a fact which some family members view with distaste since the brothers had not been on speaking terms for decades. All of the parties are pro se except the woman offering the copy of the will fragment for probate. By the time the case is ordered to mediation by the Probate Court, the parties have already come close to blows in the court room. This is the type of case probate courts are faced with every day but are ill-equipped to handle. Mediation, on the other hand, allowed all family members to express their views and concerns, both together and privately with the mediator, which eventually led to a productive discussion of options for resolving the dispute.

The eventual resolution took into consideration not only the legal problems with the will fragment, but also the warm feelings that half of the family held for the woman who had lived with the decedent for years, been treated as part of the extended family, and nursed the decedent through his final illness. As an added benefit, the two sides of the family were talking again and viewed each other with less suspicion and hostility.

When should the probate-related case be referred to mediation? While some courts are referring selected cases to mediation during or after discovery, mediation should be considered prior to the filing of a civil suit or other action, where both parties are in possession of the fundamental facts or can agree to informal discovery. This way, communication and negotiations can begin before the parties become polarized and positions hardened by the demands and cost of the legal process. In those cases where discovery is necessary, the parties should request referral to a mediator as soon as discovery is closed. If dispositive motions are outstanding, the parties can either ask the judge to postpone ruling on them or wait until they have been decided before proceeding to mediation.

It is important to remember that mediation can be helpful for isolated issues, even if an entire case is not ripe for mediation. For example, in cases in which a residence is the sole or primary asset, mediation with regard to a possible expedited sale of the house with the proceeds to be put in escrow pending resolution of the lawsuit can benefit the parties since empty houses deteriorate rapidly and are difficult to insure. Such a sale can also serve as a reality check for the parties who may be improperly estimating the fair market value of the house.

Mediation is a relatively new process for many attorneys. Thorough preparation is the key to success. First, it is important to have researched the underlying facts and the law as it applies to the issues presented. Attorneys should spend some time identifying the strengths and weaknesses of both sides' positions based on this research. Be prepared to provide the mediator with copies of any relevant cases and/or statutes prior to the mediation. (Most mediators will telephone the lawyers and pro se parties prior to the initial joint session to start learning about the case and request any such authorities). If there is a serious issue upon which an expert's opinion can be helpful—such as validating the testator's signature in a will contest where the witnesses are not available to testify—have the work done and provide the report to the mediator ahead of the first scheduled joint session. Handwriting analysis of the signature on a will is not particularly expensive and a credible expert's opinion can be a powerful tool to be used in mediation.

In the case of complicated taxable estates, consultation with an estate planning expert familiar with the applicable tax issues is a must, for the key to successful resolution may lie in creative use of the tax laws. For example, a long-divorced gentleman marries the financial advisor he has known for only one year, then executes a new will which eliminates a significant promised charitable contribution and substitutes the new wife and her child from a previous marriage for the testator's natural child. The marriage took place during the testator's final illness and the will was executed only a few weeks before his death of a brain ailment. Each side was extremely angry at the other and outraged at what was perceived as "gold digging" on the part of the other side. The legal issues were lack of capacity and undue influence. But the legal wrangling involved in the lawsuit, apart from costing a small fortune and so progressively depleting the estate, was polarizing the parties even more, making settlement harder. During the mediation process, when the mediator addressed the decedent's daughter (a teenager) and said, "I'm so sorry for your loss" the girl's mother interjected that that was the first time during the litigation anyone had recognized the young woman's pain of losing her father. This expression of empathy for the parties (which was equally extended to the second wife) helped establish trust in the mediator and began to move the parties towards a frame of mind in which they could consider settlement of their claims. The parties were able, after several sessions and consultation with an estate planning expert, to find a resolution that was made possible, in part, by the use of a common post-mortem tax planning device – the qualified disclaimer. The minor daughter's disclaimer increased the amount of money flowing to the second wife in order to help provide cash for a payment to the decedent's natural child.

It is important to spend some time discussing underlying interests, as opposed to positions, with the client. This is something the mediator will be exploring at the mediation. It will be helpful if the attorney has laid the groundwork with the client and helped him or her consider what's really most important to achieve in the process. Also spend some time discussing with the client his or her's best alternative to a negotiated agreement (Designated the BATNA by Roger Fisher and William Ury in their classic on negotiation, Getting to Yes). Coming to the mediation knowing the client has a strong, or weak, BATNA will be helpful in evaluating options for settlement. Take the time to do whatever checking or research is required to verify the feasibility of the BATNA.

Discussing with the client underlying interests and the BATNA is important not only to prepare the attorney for mediation but also to help prepare the client for what will probably be a novel experience. In addition, to help prepare your client, explain the mediation process (discuss this in advance with the mediator if you are unsure), and explain your own dual roles as advocate and advisor. Although the mediator will expect some venting of emotions on the part of the parties and will probably ask to hear their views of the case, advise the client that the purpose of the mediation is not to focus on past behavior but to try to get a fresh, forward-looking perspective that could lead to a settlement. Take the time to thoroughly review with the client the legal fees and costs associated with the case to date. Give the client as accurate an assessment as possible of how much it will cost to pursue or defend the litigation if a settlement cannot be reached. It can be important to have this information available in order to evaluate options during the mediation. Advise the client that opposing counsel will argue his perspective on the case vigorously and that the mediator will thoroughly explore the weaknesses in his case during the separate sessions. Urge the client to remain focused on his or her ultimate underlying interests. This is the kind of thorough preparation that allows for a productive mediation session.

Every person has a unique negotiation style and a skilled mediator should be able to accommodate most of them. However, ultimatums rarely serve a client's interests because, usually within a matter of minutes, they are discarded by the person voicing them. This destroys the maker's credibility at the same time as it damages the atmosphere of interest-based negotiating. While it is expected that attorneys will display their advocacy skills to both opposing counsel and the mediator, it is important for both attorneys and clients to avoid personal attacks on the opposing counsel or client or other behaviors which could cause them embarrassment. A respectful and cordial approach by all involved can go a long way towards allowing parties to settle their grievances. In addition, at least when meeting with the mediator in private, consider allowing the client to take the lead in discussing the case and possible options for settlement. In these separate sessions, active participation by the client, with the attorney functioning in a more advisory role, can be very helpful.

Probate cases usually involve a high degree of emotionality and numerous parties and may require two or more sessions to resolve. Nonetheless, mediation offers efficient, private, flexible and interest-based solutions for those who want more control over the process and outcome of their disputes.

*Reprinted with permission from ADR Report, Volume 2, Number 24, pages 9-11. Copyright by Pike and Fischer, Inc. For more information on ADR Report, call 1-800-255-8131 ext. 248.