Preparing for Successful Probate Mediation

By Donald D. Vanarelli, Esq.

 

A. BASICS OF THE MEDIATION PROCESS (R. 1:40-6)

1. Referral to Mediation
   The judge, court staff, or the parties themselves may identify cases that are appropriate for mediation. While referral may take place at any point after filing of a complaint, the likelihood of success at cost savings is greatest when a case is referred to mediation early.
2. Selection of a Mediator
   The parties agree on a mediator from a court-approved list of participating mediators, or the parties may select any other individual; if they cannot agree on a mediator, the judge will assign one.
3. Compensation of Mediator
   The first three hours are provided free of charge; thereafter, the parties will share in payment of the mediator’s market rate fee.
4. Confidentiality
   With exceptions (R. 1:40-4(c)), what transpires during mediation is confidential and cannot be admitted in a civil, criminal or quasi-criminal proceeding.
5. Mediation Statement
   The parties exchange and serve upon each other a brief statement of facts and proposals for settlement, not to exceed ten pages. Subject to R. 1:40-4(c), all documents prepared for mediation are confidential.
6. The Mediation Session
   The parties shall make a brief presentation of the issues, as they see them. Then, the mediator will assist in exploring a compromise settlement to meet all parties’ needs. If an agreement is reached, it will be drawn up and signed. The mediator will notify the court and, when the agreement is executed, counsel will ask that the court dismiss the case. If only certain aspects of the case are resolved, the unresolved portion may be submitted to an expert for a binding or non-binding opinion, or the remaining issues may be resolved in court.
7. Preparing the Client for Mediation
   Counsel should explain the mediation process and agree on who will be the main spokesperson for that party. The client should play an active role in settlement discussions, and attorneys should provide their clients with counsel with respect to settlement options.

B. GENERAL RULES FOR MEDIATION

1. Mediation is nothing more or less than a facilitated settlement negotiation. You greatly increase the chances of success when you make the mental transition from thinking like a client’s advocate in pursuit of a “win” to thinking like the client’s counselor in pursuit of resolution.
2. Determine what basic information you will need which the adversary can produce within a reasonably short period of time. Also, think about what your adversary will need that your client can produce within that same time frame. Then, make a timely exchange of basic documents and information prior to the mediation.
3. Prepare the client for mediation. The client should understand ahead of time the general nature of the mediation process. Tell the client what role the mediator plays, what role the lawyer plays and that confidential information may be disclosed. In addition, the client should have the benefit, before the mediation, of the lawyer’s evaluation of the case, and potential weaknesses. Most importantly, the client should understand that the mediation is a real opportunity to resolve the case. It may lead to increased flexibility on the client’s part.
4. Before the mediation, explore with your client possible resolutions to the dispute that give something to both sides.
5. Set aside sufficient time for the mediation. Clients in mediation need time to “vent” their anger, and to change opinions and positions that they may have held for a long time. The parties should continue to work hard until the mediator concludes that the parties are at impasse.
6. Use the mediator to educate your client about the strength and weaknesses of his/her case. If your client has unrealistic expectations, let the mediator deflate them. If your client is absolutely convinced of an outcome, let the mediator undercut that conviction.
7. Help the mediator to conduct the same educational process with your opponent. You do this by knowing the facts of the case and presenting the mediator with a view of the facts that can be supported by admissible evidence based on applicable legal authority. In an appropriate case, it might be a good idea to submit a summary of the facts and legal issues in the case to the mediator in advance. At the very least, provide the pleadings to the mediator for review.
8. Share the strength of your client’s position in writing with the other side. The strength of your position should not be confidential.
9. Let the client be the center of the process. Allow the mediator to speak directly to the client. Do not try to protect the client from the mediator.
10. Allow the mediator to take charge of the process. If you fight the mediator for control, you waste some of the stature the mediator brings to the process as an impartial third party without advancing the case toward settlement.

C. SPECIAL ISSUES FOR MEDIATION IN THE PROBATE CONTEXT

1. PROBATE DISPUTES: COMMON CHARACTERISTICS THAT MAY MAKE MEDIATION AN ATTRACTIVE ALTERNATIVE TO LITIGATION
   1. The parties have an ongoing personal relationship.
   2. The parties have communication problems.
   3. Emotional issues may make settlement difficult.
   4. The cost or process of litigation will be financially, physically and/or emotionally draining.
   5. Self-determination: the parties wish to retain control over the ultimate outcome of the case.
   6. Privacy issues are important to the parties.
2. ADDRESSING THE UNIQUE ISSUES CONFRONTING PROBATE MEDIATION
   The parties may wish to have, or be expected to have, a continuing family relationship after the case has concluded. This may increase the parties’ desire to engage in mediation, but the family relationship may also make mediation more difficult. Listed below are strategies for addressing the unique considerations of probate mediation.
   1. Address the emotional context promptly.
   2. Legitimate the parties’ emotional concerns.
   3. Consider the timing of the mediation, recognizing that the parties may be going through the process of grieving (including the stages of denial, anger, and acceptance). While mediation is generally successful when begun early, if it is begun too early, the parties may not be emotionally ready.
   4. Stress the economic benefits, which may be of particular interest given the desire to preserve family assets.
   5. Recognize that the case may involve unique personal/family assets, which may have particular emotional significance to one or more of the parties.
   6. Identify necessary participants. In a probate case, this might not be limited to heirs (for instance, in-laws of the parties may play a significant role in the discussion/resolution).
   7. Consider both legal and non-legal issues involved in the case.
   8. Remain open and flexible as to possible outcomes of the mediation. Keep in mind that you are not limited to the remedies at law.
   9. If complete settlement is impossible, explore settling certain issues, or issues as to certain of the parties. This may make resolution of the entire matter much more likely.
   10. At the commencement of mediation, establish the allocation and fund from which the mediation costs will be paid. Keep in mind that will contests are generally payable from the estate. Also keep in mind that, when litigation costs are borne by the estate, it may reduce a party’s incentive to settle.
   11. Upon settlement, make a specific description of the terms of the settlement prior to concluding the mediation session. Include such items as: who will bear tax burdens; who will file tax returns; deadlines for executing deeds, title transfers, etc.
   12. Ensure that the mediation settlement agreement is merged into a final accounting, and that the right to object to the agreement is waived when incorporated into the accounting.
3. MAXIMIZING THE MEDIATOR’S POWERS
   Take an active role in the mediation structure. Consider offering suggestions on the following topics that you think would help the mediation process in your case.
   1. Making changes to the standard discussion format (for instance, rather than an opening statement by counsel, begin the session by having the parties meet privately).
   2. Focus on certain key issues, or avoid certain thorny issues temporarily.
   3. Use the fact that the mediator is a neutral party: ask the mediator to deliver bad news or settlement proposals to the other side, or to provide the parties with an evaluation of the legal merits of the case.
   4. Don’t abandon the process, even if settlement is impossible. Ask the mediator to contact the parties periodically to see whether further mediation would be helpful. Or ask the mediator to assist in developing a streamlined discovery plan. 

Sources:

Civil, General Equity and Probate Cases, Statewide Mediation Program Brochure, New Jersey Administrative Office of the Courts, Office of Trial Court Services, September 1998.
Gary, S., The Greatest Heritage is the Love of a Family: the Larson case and the Mediation of Probate Disputes, Pepperdine Dispute Resolution Law Journal (2001).
Gowan, D., How to Borrow a Mediator’s Power, ABA Journal of the Section of Litigation Vol. 30 No. 3 (Spring 2004).
Hewitt, B., Probate Mediation: A Means to an End, Res Gestae (Indiana State Bar Association Aug. 1996).
Madoff, R., Mediating Probate Disputes: A Study of Court Sponsored Programs, Boston College Real Property, Probate and Trust Law Journal, Vol. 38, pp. 697-725 (Winter 2004).

Articles posted on the mediate.com website:

The Ten Biggest Mistakes Lawyers Make in Mediation, by Richard G Spier
Learning to Use the Mediation Process – A Guide for Lawyers, by Norman Brand
Five Tips for Successful Mediations, by Met Wilson

Articles posted on the law.com website:

Get Ready for Mediation: Your Client Deserves It, by Nicolas Stevens (July 12, 2004)

 

For additional information regarding Successful Probate Mediation, call us at 908-232-7400 or click here to contact us online.