Probate and Trust Litigation Avoidance: Mediation FAQs

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What is Mediation?

A mediation is an assisted settlement negotiation.  In a typical mediation, two parties that want to settle a dispute agree to call upon a neutral third party, known as the mediator, to assist them to achieve their mutual objective.  If the parties are sincere in their desire for a settlement and the mediator is experienced and qualified, then it is likely that a settlement will be achieved.  The parties may agree upon certain preliminary mediation ground rules relating to, for example, selection of the mediator, confidentiality of the mediation proceedings, and the sharing of certain expenses, such as the costs of the mediator’s services and, possibly, of the mediation conference facilities.  It is not the role of the mediator to judge the merits of the dispute, declare a winner and loser, and impose a judgment, penalty, or award.  The role of the mediator is to help the parties arrive at a compromise, ideally a win-win solution that maximizes the total benefit to all the parties.    

What Usually Happens in Mediation?

The mediator will often have an initial meeting or conference call with the parties and their counsel, or possibly just with counsel.  The mediator may then confirm the preliminary mediation ground rules agreed upon by the parties and inform the parties of how the mediator expects the parties to proceed, usually including a requirement that all key decision-makers attend the mediation or, if that is not possible, be available by phone during the entire mediation.  The mediator may ask for a joint written mediation submission setting forth what is agreed upon by the parties, what is disputed, and, possibly, some information regarding the background and history of the dispute.  The mediator may also invite each party to make a confidential mediation submission to the mediator presenting that party’s side of the dispute, suggestions regarding the best approach to settling the dispute, and, possibly, what that party is and is not willing to agree to in order to achieve a settlement in the mediation. 

At the mediation session, the parties may make initial presentations of their positions with all parties present, after which the mediator may separately meet with each party and that party’s counsel.  There may then be some “shuttle diplomacy,” during which the mediator alternately meets with the parties as the mediator closes in on a mutually acceptable settlement.  The mediator’s techniques may include separately advising each parties that its expectations in the mediation are unrealistic, that its case is not as airtight as it thought, and that there may be underestimated strengths in the opposing side’s position.  Usually every effort will be made to craft a creative mutually beneficial win-win solution, in which neither side is left empty-handed, neither side loses face, and both sides have something of real value to show for their efforts.  As the parties begin to show some flexibility and the prospect of a mediation settlement appears more likely, the mediator may ask to meet privately with each party, outside the presence of counsel, for a final round of reality checks, benevolent arm-twisting, and common sense advice.  Finally, the mediator may meet with all the parties and propose a mediation settlement to which all parties have, in principle, already agreed in their private meetings with the mediator.  Finally, if the mediation has succeeded, the details are ironed out and the parties’ agreement is recorded in a term sheet signed by both parties.

What Are Some Benefits of Mediation?

The major benefit of mediation is control over outcome.  There are only two possibilities at the end of a mediation: no settlement or a settlement that both parties have agreed upon. In a trial or in binding arbitration, the possibility of a glorious victory is balanced by the possibility of a humiliating defeat.  Good mediators can often provide a reasonably accurate prediction of what will probably happen if the case is tried.  That prediction can provide an informed basis for a fair mediation settlement.  However, any trial is still, to some extent, a roll of the dice.  It is not unheard of for juries to return verdicts that experts, in opinions expressed before the trial, had not predicted.  Mediation reduces this uncertainty. 

Another major benefit of mediation is cost.  The costs of compensating the lawyers and the mediator for their services, is usually a small fraction of the costs of protracted litigation with charges incurred for discovery proceedings, motion practice, litigation support personnel, legal research, transcripts, expert witnesses, a trial, and then a possible appeal.  Mediation costs can be reduced through narrowing the issues to be mediated by agreeing, before the mediation on items not in contention or where the parties’ differences are minimal.  Then the mediator can use the mediation time to focus on the issues at the heart of the dispute.  The choice of a mediator who is trusted by both sides and who is familiar with the kind of matter being mediated increases the likelihood of a successful, less costly and time-consuming mediation.  A well-crafted settlement may also have tax advantages over a litigation outcome.  Parties should also bear in mind one less obvious cost of a drawn out and demanding full-fledged litigation: diversion of their own attention and precious time from other matters and pursuits.  Parties need to consider, as a cost, the value of their own lost “litigation time” that would otherwise have been devoted to their families, their businesses, and personal commitments.          

An equally important benefit of mediation is the possibility of preserving relationships or, at least, minimizing the damage to relationships.  Corporate parties to a mediation may still have to do business with each other after the mediation.  Resolving their differences in a confidential mediation may help both parties avoid public relations damage and may open the door to a resolution to their dispute that has economic benefits for both parties—something that a public court battle is unlikely to achieve.  Similarly, individual parties to a dispute may be part of the same family group or may share child-raising responsibilities.  Resolving their differences in a confidential mediation may minimize damage due to strained family relationships and washing previously private dirty linen in a public forum.  The fact that there is no winner or loser in a mediation may enhance the prospects for an eventual reconciliation.  Mediation is far from a perfect solution.  However, where interparty negotiations have not been able to close the gap between the parties’ positions, mediation is a dispute resolution alternative well worth exploring.

Probate and Trust Litigation Avoidance: Techniques for Experienced Estate Planning Counsel

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An Ounce of Prevention Is Worth a Pound of Cure 

Because of the financial and emotional toll imposed by probate and trust litigation, every reasonable effort should be made to avoid such litigation.  Retaining experienced estate planning counsel is an important first step in enabling families to avoid costly and protracted trust and probate litigation.  A building with a firm foundation is less likely to face the possibility of collapse.  However, the owner of the house, who gives the builder instructions, also bears responsibility for the result.  Experienced estate planning counsel will advise regarding how to minimize the chances of estate litigation.  If that advice is disregarded, the instructions given to the estate planning counsel may result in a will or trust with provisions that are unreasonable, inconsistent, or likely to cause conflict.  However, even a first-rate estate planner is not a guarantee against litigation by some conflict-prone or irrational relative, just as a sound foundation of a house may not protect it against the ravages of an earthquake or other natural disaster.  Nonetheless, retaining experienced estate planning counsel is an excellent first line of defense in avoiding probate and trust litigation.       

Identifying Competent Estate Planning Counsel

How does one find the right estate planning counsel who can help avoid litigation?  It may well be the attorney who has been advising your family for years.  You want an attorney who is experienced and can see likely problems before they materialize.  You want someone who has no conflict or interest and will not be perceived to be giving advice based upon personal relationships with other family members.  Not every estate planning lawyer can have gone to a prestigious law school, be a partner in a top law firm, have the highest ratings on Internet attorney sites, lecture at educational programs for fellow attorneys, belong to prestigious estate planning professional organizations, have written books and articles on estate planning, and been recognized for excellence by his or her peers.  But if the value of the estate is substantial, it is not unreasonable to look for an attorney with substantial estate planning experience and at least a modest record of achievement.  Having a lot of experience with probate and trust litigation arising from his or her own planning work may not be the best indicator, since the ideal estate planning attorney minimizes such outcomes. 

A Sampling of Litigation Avoidance Techniques for Experienced Estate Planning Counsel

While good draftsmanship of wills and trusts is certainly a necessity, it is equally important that estate planning counsel know everything that he or she needs to know about the client’s property and business interests, mental and physical health,  and relevant personal and family relationships.  Armed with this knowledge (usually recorded in meticulous notes of meetings held with the client requesting the will), litigation avoidance measures may be taken.  If, for example, the family thinks Aunt Clara is applying undue pressure to get a large bequest, perhaps she should not be present during the estate planning process and the will should not be drafted by her niece, the personal injury lawyer.  If the will is for someone who is 95 years old and there will be foreseeable claims of lack of testamentary capacity, an examination by the appropriately qualified medical professional, shortly before the will is executed, might be helpful.  

Sometimes an estate planning professional will discuss with his or her client the possibility of having a family meeting to discuss the estate plan or, perhaps, the option of leaving behind a letter, written by the client and to be opened after the client passes.  Such a letter might, for example, explain why nephew Herbert, who almost bankrupted the family business, is getting a spendthrift trust and not the stock he wanted in the family business.  Less frequently used litigation avoidance techniques include videotaping parts of the estate planning process, the use of multiple wills executed at intervals, or including a clause in the will penalizing with a lesser bequest any beneficiary who challenges the validity of the will.  Some of these measures can be two-edged swords and can backfire when employed by the less experienced estate planning attorney.  Lastly, when a probate or trust litigation seems highly likely, an alternative may be to seek mediation or use the collaborative approach discussed in a prior blog.  


Probate and Trust Litigation Avoidance: The Collaborative Approach


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Need for Trust and Probate Litigation Avoidance

Most trust and estate litigations can and should be avoided. The financial and emotional toll of probate litigations is much too high.  Estate planning professionals are trained to optimally preserve, protect, and transfer wealth–not to suffer as bystanders while their clients’ wealth is dissipated through costly courtroom battles. Some planning professionals also have formidable courtroom skills, but not many possess the full spectrum of skills necessary for successful probate litigation avoidance. All know that when it comes to avoiding will contests and fiduciary disputes, an ounce of prevention is worth a pound of cure.

The Collaborative Approach

One method of minimizing later conflict is to adopt a collaborative approach to inheritance litigation avoidance. This calls for a multidisciplinary collaborative approach calibrated to the magnitude of the assets involved. Which disciplines should be called upon will depend upon the particular family situation. Valuable contributions may be made by business advisers with expertise in family businesses, wealth managers, psychologists and social workers, eldercare professionals, and highly experienced litigators who can recognize danger signs and propose solutions.

Working as a team with the estate planning professional a “threat assessment” can be made, trouble spots identified, and creative solutions devised. In some instances this interdisciplinary team may be most effective working with and through the estate planner. In other instances some or all members of the team may be called upon to work directly with the potential or actual disputants. It may sometimes be helpful if the group, including counsel, pledges no involvement in any subsequent litigation if agreement cannot be reached.

Early Intervention Desirable

As regards timing, the earlier the intervention, the better. Each family situation is unique and there are no cookie-cutter solutions. In those situations that are headed for conflict, the estate planner may see the storm clouds on the horizon while the testator is still alive and well. In such instances there may be value in the testator explaining, for example, that a provision in the estate plan is not a sign that he or she favors one sibling over the other, but merely a recognition of their differing needs. Family counseling may help reconcile estranged relatives to the point where they will not need to act out their conflicts through estate litigation. A family business adviser may offer proposals for passing on a family business in a way that is both fair to all concerned, yet gives the business a chance to succeed. Perhaps an experienced litigator can identify the choice of a trustee, despite that person’s unquestioned competence, as a potential lightening rod for contentiousness due to his or her perceived favoritism toward one of the beneficiaries.

The collaborative approach has been successful, at times, in avoiding matrimonial litigation. When selectively employed in the planning and probate context, it has a place in the avoidance of costly, public, and protracted trust and estate litigation.