Meeting Midway With Mediation – Are heirs at loggerheads over dividing an estate? Does it look like the dispute is going to turn into a lawsuit? It doesn’t have to. Parties should try mediation. Indeed, many judges, who recognize the value of a structured compromise, even order the parties to attempt a session before they will agree to set a court date.

Negotiations during mediation are supported by a neutral third-party facilitator. Critically, the parties must adjust their respective mindsets. They need to modify their thinking from the concept of triumphant victory to one of a successful pursuit of resolution.

Shuttle diplomacy

There are few set rules, and the agenda can be adapted to suit the parties’ agreed preferences. Yet most mediations follow a similar pattern of actions and protocols.

After both sides have agreed on a particular mediator, they typically exchange brief statements of facts or proposals to lay the groundwork for the interchange. Proceedings may begin with opening presentations and responses from each side, although if hostilities are raw between estranged family members and confrontations seem counterproductive, those introductory remarks can be waived.

The mediator then usually outlines the basic rules for the event, explaining the goals and some mutual advantages of cooperation. In probate contests, each side may deliver an opening salvo or even put a starting offer on the table. Mediators then shuttle between both sides’ separate rooms, conveying arguments, revised offers, concessions and rejections. They haggle. However, the terms need not be strictly financial if parties have additional priorities.

It is a cardinal rule that all aspects of the discussion remain confidential. The rationale is that participants will feel less inhibited about privately exploring issues and floating settlement proposals. Moreover, any suggested offers cannot later be revised before a court.

It’s hoped the parties can clinch a resolution during the day. (Sessions are often initially scheduled for one day, which is often a very long one, to motivate participants to reach a definitive conclusion.) If a deal is struck, it must be drawn up and signed by all. It is advisable to have everyone sign off on the day itself in order to maintain momentum and discourage any change of heart overnight.

If unresolved matters linger, these may be identified, relegated to an expert or later addressed in court, notwithstanding that the sides may have at least narrowed the issues, often promoting a settlement over the following weeks.

Who is the mediator?

Mediators are not necessarily attorneys or judges, but they generally have undergone training in conflict resolution. They command substantial fees for their services, possibly in the range of $4,000 to $5,000 for an intense day and all the preparation involved, but that would still represent a drop in the ocean compared with the cost of trial litigation.

Mediators perform diverse roles. They do not arbitrate or judge disputes; instead, they act as an honest broker to facilitate communication. It is their responsibility to help air contentions, identify the strengths and weaknesses of both cases, and design compromises. An important function is to give warring parties reality checks about a conceivable range of outcomes. Parties may need room to vent while they finally come to release long-held convictions. It is incumbent on a mediator to deflate unrealistic assumptions by undercutting rigid attitudes.

Risk management

Mediation operates as a kind of insurance against a possible adverse court judgment. The outcome of court litigation is always uncertain however solid the case appears on paper. So much depends on a judge’s reaction on a particular day to a piece of evidence or a witness’s’ performance. The cost and risks of litigation may not justify the expense of uncovering the truth. Those costs can be financial, physical and emotional.

Mediation has multiple advantages over going to court because it is:

Faster.
Much less expensive.
Private.
Less stressful.
More controlled.
Tailored to case-by-case solutions.
Focused on nonlegal family relationships.

It is a particularly appropriate course for probate contests, where there is a strong interest in preserving the resources of a finite estate.

A trust and estate attorney will be able to advise how you can factor ADR into any pending estate litigation.

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