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
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
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
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
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
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
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
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
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
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.