By Edmund J. Sikorski Jr.
This article is intended to build on previous articles enumerating the benefits of mediating probate and trust disputes by discussing the process from a mediator’s viewpoint, noting both best practices and common pitfalls on the part of the litigants.
Early Case Resolution
The longer the conflict rages, the more likely it will become that the victor will in fact be the vanquished. The emotional and physical commitment necessary to pursue this type of litigation is enormous. It is accurate to say that the acrimony generated by the litigation process, is the death sentence for any sense of family for ensuing generations.
More complex cases (such as capacity and undue influence cases) are less capable of early resolution because they are fact-intense and thus require substantive discovery. Court intervention may be needed to compel information production.
Avoidance of Trial Expense and Imposition of a 3rd Party Decision (usually not a solution)
The expense of proceeding down the litigation track is enormous. When you consider the time spent preparing for, taking and then reviewing and summarizing the testimony, a single witness deposition could cost more than $3,000. In cases alleging incapacity or undue influence, for example, the fees for expert reports can easily exceed $5,000 per litigant.
A decision imposed by a third party is simply and always unpredictable, whether it be by judge or jury. What is predicable about 3rd party decision is that it will not come until long after the parties have respectively spent tens of thousands of dollars on attorney fees, experts, and discovery.
Suffice it to say that litigating a matter to its bitter end – with a judge, jury and possibly an appellate court deciding the outcome – serves no meaningful purpose but to deplete the financial and emotional resources of the parties. This is so even where a litigant simply wants to “have their day in court.”
Management of Malpractice Claims and Charges of Ethics Violations
Litigated claims eventually encompass the estate planning attorneys. The facts of each case, developed in part by the discovery responses of those attorneys (who often become witnesses in the proceeding), increase the likelihood that a claim of malpractice and/or professional ethics charges will arise.
Satisfied Clients
Clients who are actually involved in crafting a mediated resolution are more satisfied clients.
Effective Mediation Produces Practical Outcomes
I believe that there are six core principles that both the mediator and counsel for the litigants must understand and convey in every estate and trust-related mediation:
First: The purpose of mediation is to help people consider another perspective, develop a better understanding of the situation, and recognize what they really need from the conflict so that they can move on with their lives.
Second: The focus must always be on finding an effective agreement – a common vision that satisfies most of the participants’ needs (not necessarily what they want) in the best manner available.
Third: The task in mediation is to help solve the other side’s problem as a means of solving your own problem. Stated differently, you are their primary problem and they are yours.
Fourth: Positions must be differentiated from interests. Positions reflect what we assert we want as outcomes. The more we defend them, the stronger we seem to hold on to them. Interests reflect what is important to us as outcomes. Interests are the reason why they are important. They reveal hopes, needs, values, beliefs, and expectations. They can get lost in the fight for positions and do not necessarily reflect what the conflict is about. Do not confuse the two.
Fifth: Mediation is fundamentally about cutting a business deal. You may not get what you think you want but you will be better off than if there were no deal at all.
This may be a foreign concept at first because from the beginning the dispute is principled, emotional, and more difficult to mold into a reasoned risk assessment that is at the heart of an informed business decision.
Sixth: The mediator selected should have subject matter knowledge in this area of the law. Such experience/expertise allows a systematic analysis of the conflict and management of the unrealistic expectations of the parties.
Here are a few things a mediator expects from the parties prior to the mediation conference:
First: Prepare and exchange a mediation brief.
Mediation briefs tell the mediator in advance the essence of the factual and legal issues in dispute, and likewise, the issues not in dispute.
Do everything within your power to objectify the claim, position, or defense. Make the content EASY and SIMPLE to understand. Brevity is best.
Just like an opening statement, a mediation brief should tell a story that starts with a theme that is well thought out in advance. The theme should be one sentence or phrase that appeals to the moral force of the “jury” and captures the essence of the party’s story. A good theme should be easy to remember, useful in decision making, supported by the evidence, and consistent with the “juror’s” concept of fairness and justice.
There are four (4) magic word that introduce a theme: “THIS CASE IS ABOUT…”
The theme should be expressed in a single opening paragraph that combines an account of the facts and the law in such a way as to lead to the conclusion that you will prevail if the matter proceeds to and conclude in trial.
Second: Cut to the chase with the mediator.
If the mediator understands “where you are coming from” and recognizes wiggle room in the outcome, they are in a better position to relate that to the other side (and vice versa).
Third: PREPARE
Every primer on mediation exhorts the participants to prepare. However, this is like telling your kids to “go clean their rooms.”
What does this mean and how do you do it?
This requires negotiators to pre-plan and prepare an intensely thoughtful, scripted plan that offers the other side a reason to accept one of a variety alternative proposals. It might start with an ambitious proposal that does not automatically alienate the other side and move in several steps to a proposal that represents a considered view of what is in the best interests the client beyond which the client will be willing to run the risks inherent in the imposition of a solution by a third party, i.e. a litigated conclusion.
From my point of view as a civil mediator, failure of a party to come to the mediation session with such a scripted plan is fatal to the mediation process.
There are three substantive matters that the mediation participants should expect from the mediator in probate and trust mediation proceedings:
First: Review and discuss the elements of the cause of action and the proofs necessary to establish the relief sought and the standard of review if appellate action might ensue.
The causes of action will fall into one of the following categories:
Tortious Interference with a Prospective Advantage
Tortious Interference with a Trust/ Expected Inheritance
Intentional Infliction of Emotional Distress
Negligent Infliction of Emotional Distress
Fraud
Unjust Enrichment
Creation of an Express Oral Trust
Conversion
Constructive Trust, Undue Influence, and Breach of Fiduciary Duty
The elements, proofs, and standards of review for each are set out in exceptional detail in: In re Estate of Helen Bandemer et. al. v. Martin Bandemer et. al. Unpublished COA October 20,2010 No. 293033.
CAVEAT: As to the theory of Tortious Interference with a Trust/ Expected Inheritance, there is an apparent conflict between In Re Green No. 173335 Mich Ct. App (1996) (unpublished) recognizing the cause of action, and Dickshott v. Angelocci No. 241722) Mich Ct. App (2004) (unpublished) refusing to recognize the cause of action in the absence of Supreme Court or legislative recognition. Cert. den. 474 Mach 712 (2005). Bandemer assumed without deciding that a cause of action existed for tortious interference with an expected inheritance or gift.
Second: When the subject of attorney fee shifting is involved in the litigation (almost always in light of statutory provisions allowing probate courts to grant them), entitlement to those fees from a source other than the asking party will be a subject of mediation caucus.
I urge mediation participants who have such claims involved in their matters to carefully digest the extensive discussion of that subject contained in In re Clarence Temple et.al. v. Clinton Probate Court et.al., 278 Mich. App. 122, 278 N.W. 2d 265 (2008)
The standards for an award of attorney fees is different in estate litigation than in trust litigation.
You should expect to revisit these cases and their common subject matter in caucus with your mediator.
THIRD: Discussion of probable outcomes using decision tree analysis.
Conclusion:
Bring an adaptive and educated mind set to your negotiations.
You can get closer to the ultimate goal of making lemonade out of lemons
The author is a member of the Michigan Bar and the recipient of 2016 National Law Journal ADR Champion Trailblazer Award. He is an approved Washtenaw County Civil mediator. Also contributing to this article was Randolph T. Barker, a shareholder in Berry Moorman P.C.’s Ann Arbor office.
