Trying to settle probate disputes: mediators share their insights and strategies

Issue May/June 2016 May 2016 By Patricia L. Davidson

Family tensions make great, often amusing drama -- like Jarndyce v. Jarndyce, the Corleones, the Simpsons and the Bunker household at 704 Hauser St. We love the eccentricity, back-stabbing and lampooning of illusory notions of family harmony. One way or another, we can all relate. We all have families.

And many of us represent them. Lawyers who represent beneficiaries and fiduciaries know that probate litigation is rarely a laughing matter. Will contests, breach of fiduciary duty claims, petitions to partition, objections to accounts, etc., are among the most acrimonious cases. When emotions run high and decades of family baggage suffuse legal claims, litigants, lawyers and judges alike are usually desperate for a resolution. Many disputes are so entrenched that a trial is the only end game. However, because many family disputes involve much more than money, probate disputes are particularly well-suited to mediation.

Why Mediate Probate Disputes?

Mediation is a process where adverse parties try to come to a voluntary settlement agreement. The mediator, a neutral party, tries to facilitate the settlement. Mediation provides a context for resolving legal claims as well as tempering obsessions that often torment litigants fighting about wills, trusts and real estate. While mediation may not guarantee that Thanksgiving will be warm and fuzzy, it may provide an opportunity for parties to get on with their lives.

Experienced mediators agree that probate disputes present many challenges. They also agree that there are many benefits to trying to avoid prolonged litigation among family members. Conservation of resources is a key benefit. "Mediation ought to be the most appropriate resolution" to probate disputes, says Brad Honoroff of The Mediation Group. Honoroff stresses that in family feuds, family assets are "petered away by conflict." Brian Jerome of Massachusetts Dispute Resolution Services agrees. He observes that that in many probate disputes, the "legacy is given to the lawyers."

David "Tack" Burbank of Burbank Mediation Services notes that trying to settle probate disputes is a "different type of mediation." In his experience, parties to a tort claim or a contract matter are "typically mediating risk," i.e., the risk and cost of taking a matter to trial. In those cases, litigants are usually focused on finding a practical resolution. But in probate matters, pervasive and perhaps irrational emotions create additional obstacles for the mediators.

Emotion, Emotion, Emotion

Jerome quickly points out that in probate litigation, the "biggest word involved is 'emotion.'" In many cases, the inter-family disputes have festered for years. He stresses that family conflicts are "often not about the money" and that "extensive litigation is a prescription for emotional carnage." Jerome notes that mediation "sets the groundwork for future relationships."

Honoroff maintains that understanding the "psychological stuff" is important. From the beginning of a mediation, Burbank tries to be empathetic. Honoroff stresses that paying attention to "emotional dynamics" ultimately helps solve problems. He says that a mediator must assist parties work through both "economic and emotional realities."

The Keys to a Breakthrough

Jerome notes that a mediator can assist parties work through "power imbalances" such as the relationship between a trustee and a beneficiary. Power imbalances between siblings are particularly difficult. Jerome stresses that a skillful mediator will help "balance the playing field."

Honoroff similarly understands that "parties have to know that the mediator understands the conflict from their point of view." A mediator must also try to accommodate the different positions of the parties. "Part of the job is to explain that the mediator's job is to understand where everyone is coming from," said Honoroff. Then the mediator can "have the heart to heart about how to move forward collaboratively." Honoroff, Burbank and Jerome all stress that building trust is crucial. But, Jerome warns, "Mediators cannot suffer fools too much."

"Mediators are in the job of adjusting expectations," Burbank says. While Jerome states that part of the mediation process involves letting parties "vent to an impartial person," he acknowledges that there is a fine line between letting a party vent and keeping him or her focused on the key legal issues. A mediator should try to "direct the discussion like an orchestra leader," he says.

According to Honoroff, a good mediator must balance "listening" with the "business" of the legal issues. He stresses that the mediator's "job is empathy" with all parties and that the mediator must understand the subjective issues. "Breakthroughs come when legal, emotional and economic needs are met."

If parties remain intransigent, Jerome tries to focus the parties on what happens if the case does not settle and the risks of trial, including costs. While successful probate litigants may be able to recover attorney's fees more frequently than prevailing parties in other types of litigation, Jerome still emphasizes to parties that odds of recovering legal fees are slim. He also emphasizes to parties that in court "there are winners and losers." Mediation, on the other hand, can not only help the parties find compromises, but also can promote creative resolutions beyond what a court can adjudicate. Jerome stresses that a mediation should help "sculpt an agreement" to meet the needs of the parties.

Honoroff observes a common dichotomy of a party involved in a family dispute: "Part of a person wants to be reasonable, and part wants to beat the living daylights out of the other." Sometimes, in order to deflect responsibility away from those involved in the litigation, Honoroff may "help heirs understand that other parties, e.g., parents, helped set up the conflict." If parties can be objective about the fact that mom gave the recalcitrant brother wide discretion as trustee or that dad intentionally named the evil step-mother as the primary beneficiary of the trust, then parties may be able to turn resentment into compromise.

Mediation of course offers no guarantees and often parties will walk away. "That's alright," says Burbank.

The Role of the Lawyers

Honoroff, Burbank and Jerome agree that lawyers can both assist and thwart successful mediation. "Lawyers can be incredibly helpful," said Honoroff. Often lawyers are working in the private breakout sessions "behind the scenes" to help clients understand the benefits of resolution and the uncertainty and expense of further litigation, including a trial. Even though most lawyers try to advocate and control the discourse, Jerome notes that "good mediators need to hear directly from the parties, at least during the private session."

But lawyers can be impediments. Sometimes lawyers are "too caught up in zealous advocacy," Honoroff says. They emphasize the "adversarial side" of settlement discussions and "not the collaborative side."

Burbank laments that the mediator sometimes has to overcome "unrealistic expectations planted" by one or both of the lawyers. He warns that lawyers should be careful not to get too invested in his or her clients' "grievances." In Burbank's experience, mediation is also more difficult when lawyers "unload on other parties."

At some point, mediators will often try to engage just the lawyers. Burbank will sometimes pull experienced counsel together to discuss the issues and potential settlement terms without their clients. If the lawyers are professional, there is a greater likelihood of resolution or at least progress in narrowing the disputes.

Honoroff is admittedly "less quick" to pull the lawyers aside. He prefers trying to "empower clients." But he concedes that in probate disputes "sometimes empowering is a disaster."

Timing of Mediation

Lawyers and parties spend a lot of time trying to figure out at what stage they should engage in mediation and at what point mediation is most likely to resolve the disputes. Before litigation? Right after filing suit? After discovery? On the proverbial eve of trial?

Every case is of course unique, and Honoroff believes that there are no general answers on the best timing for a successful mediation, but he generally believes the earlier the better. Burbank agrees and observes that he is seeing mediation earlier in probate disputes.

Maximizing the Chances for Resolution

A lawyer can do many things to try to increase the likelihood of an appropriate, if not necessarily good, settlement. Lawyers should be careful not to channel their clients' emotions; should try to maintain objectivity; and should stress the many financial and psychological benefits of not having the dark cloud of probate litigation hanging over a client's head. Mediators can help everyone understand that in family feuds trials rarely bring vindication; that fact-finders are rarely outraged; that mediation may lead to a creative solution beyond what a court can order; and that investment in probate litigation is almost always a fiscal crap shoot.

We all know the old adage that the mark of a good compromise is when no one is happy. And we cannot forget the old joke that if you have a perfect case (and no one of course has a perfect case) you have an 80 percent chance of winning. Sharing these precepts with clients is probably a good idea in advance of any mediation.