Hon. John A. Hohman
The use of facilitative mediation in Probate disputes is now widespread throughout the State of Michigan. Probate cases have many special characteristics and intricacies that set them apart from typical disputes. This article identifies those special characteristics and provides advice on how to address them in the mediation process.
Family Dynamics: Most probate disputes involve members of the same family. Typically, the participants have known one another for 40 to70 years. They grew up together, shared bathrooms and back seats of the station wagon together.
Their resentments toward one another have been percolating for decades. They recently endured the stresses of caring for a dying parent together. They bring jealousy, anger and distrust into the mediation session. The resentments and distrust impede effective communication and are barriers to open-mindedness. The attorneys and the mediator should be on the watch for the family dynamics in play, and take measures to negate the negative influences and irrational thoughts that are obstacles to effective discussions. As an attorney, if you are aware of your client’s acute resentments, you should advise your mediator of that problem in advance of the session.
Guardianships and Conservatorships: These are the most difficult cases to mediate, for a number of reasons. The topic is worth its own article. The primary problem is that the person over whom a guardianship or conservatorship is sought may not have the requisite capacity to participate in the mediation process. Often, I have helped to facilitate an agreement between a parent and his/her children, and the parent will renege on the agreement the next day, or when the agreement is presented to the court. It should also be noted that a person cannot be deemed to be in need of a guardian or conservator except through a specific court order. The court must conduct a hearing and make specific findings of fact, prior to such a determination. While the mediation process can grease the skids for that hearing, it cannot independently create the solution.
Best Day/Worst Day Analysis: Quite often, a probate dispute will center around the validity of a testamentary document. A testamentary document will either be found to be valid or invalid. This determination leaves the parties with an identifiable amount at stake. Assuming that the approximate value of the estate is known, it’s relatively easy to determine the “best day” vs the “worst day” for each participant, should the dispute proceed to court. In most other types of cases (personal injury, malpractice, divorce, etc.), the potential outcomes are not so clear. The presence of an identifiable range of outcomes in a probate mediation helps the participants to better understand their choices. I had a case a couple of years ago where two brothers in their twenties would recover $200,000 if they won their case, and $0 if they lost. After a few hours of mediation in a Troy conference room, their step-mother finally offered to pay them $100,000 to settle the case. The case had a 50-50 probability of success, in my opinion. The youngsters told me that they wished to reject their step-mother’s proposal. I reframed the question. I handed them a 3 x 5 piece of paper and said, “Here is $100,000. Would you take this $100,000 down to the casino in Detroit and place it on a 50-50 bet? You win and you walk away with $200,000. You lose and you walk away with nothing.” And then I reminded them that their attorney would drive them to the casino, but the cost of the ride would be about $40,000, win or lose. The boys quickly understood the ramifications of their decision and agreed to settle for $100,000.
Disguised Greed and Self-righteousness: Greed and self-righteousness are present in all disputes, but it takes a different form in a probate proceeding. It is easily disguised as the efforts of the “only person here who understood what Dad really wanted.” I often have heard a participant state “I am only trying to honor my father’s wishes” [at least those I was able to unduly influence him into making]. That prompts me to ask if their father’s wish was for his children to wage a three-day battle in a public court room where all of his medical records concerning his dementia would be made public, because that is the outcome if the case does not settle at mediation.
—————
Practical Considerations
Scheduling the Mediation Session: Most probate mediations have multiple participants. It is not uncommon to have four or more participants (with four or more attorneys) involved in a probate proceeding. This creates scheduling issues. Be considerate of your opposing counsel when scheduling efforts are on-going. Answer emails promptly, or designate a person in your office to work on scheduling. It’s frustrating to wait more than a day to get an answer from someone. It impacts the entire group working on the case. If you reply two or three days after the original scheduling email goes out, it is likely that some of the dates originally proposed will no longer be available.
Payment of the Mediator Fee: MCR 2.411(D)(2) states that “The costs of mediation shall be divided between the parties on a pro-rata basis unless otherwise agreed by the parties or ordered by the court.” Attorneys frequently cite this rule in disputes about payment of the mediator fee. I do not believe that the rule applies to the typical probate proceeding. First, a probate proceeding does not have “parties.” A person participating in a probate proceeding is called an “interested person.” Second, there are typically multiple “interested persons” in a probate proceeding, some of whom have no interest in the mediation. If a charity or heir is not impacted by the court’s determination on the ultimate question, should that charity be required to pay the mediator fee on a “pro-rata basis?” Finally, even if the fee is limited to those participating, should it be divided among the number of “sides” or the number of participants? Sometimes one child is challenging a will. That child may be opposed by four siblings. Should that child pay one fifth or one half of the mediator fee? I strongly encourage attorneys to get the court’s specific decision on payment of the mediator fee when mediation is originally ordered. The court should identify who is participating in the mediation, and what percentage each interested person will be obligated to pay. I also encourage attorneys to consider whether the estate or trust should pay 100% of the mediator fee. This solution removes costly discussion and argument over an issue that is relatively insignificant, dollar-wise, in the ultimate resolution.
Notice of the Mediation: Each interested person whose rights may be affected by the outcome of the mediation should be provided notice of the mediation session, even if they have not appeared in the case. Failure to do so may invalidate a hard-earned settlement agreement. The Michigan Attorney General must be notified when a charity is involved.
Mediation in probate proceedings saves money, provides certainty sooner, and allows the parties to compromise in a way that cannot be accomplished through a decision of the court. It also allows delicate family problems to be solved in a private, confidential setting, rather than a public court room. Those who mediate probate proceedings should be aware of the intricacies of that process, and be prepared to address them as they arise.
—————
John Hohman served as a Probate Judge for 17 years. He left the bench in 2013 to become the State Court Administrator. He has served as a mediator and arbitrator since 2015. He has mediated or arbitrated cases in 45 counties throughout the State of Michigan. His primary focus is probate mediation, but he also serves as a mediator and arbitrator in civil and domestic cases.
Family Dynamics: Most probate disputes involve members of the same family. Typically, the participants have known one another for 40 to70 years. They grew up together, shared bathrooms and back seats of the station wagon together.
Their resentments toward one another have been percolating for decades. They recently endured the stresses of caring for a dying parent together. They bring jealousy, anger and distrust into the mediation session. The resentments and distrust impede effective communication and are barriers to open-mindedness. The attorneys and the mediator should be on the watch for the family dynamics in play, and take measures to negate the negative influences and irrational thoughts that are obstacles to effective discussions. As an attorney, if you are aware of your client’s acute resentments, you should advise your mediator of that problem in advance of the session.
Guardianships and Conservatorships: These are the most difficult cases to mediate, for a number of reasons. The topic is worth its own article. The primary problem is that the person over whom a guardianship or conservatorship is sought may not have the requisite capacity to participate in the mediation process. Often, I have helped to facilitate an agreement between a parent and his/her children, and the parent will renege on the agreement the next day, or when the agreement is presented to the court. It should also be noted that a person cannot be deemed to be in need of a guardian or conservator except through a specific court order. The court must conduct a hearing and make specific findings of fact, prior to such a determination. While the mediation process can grease the skids for that hearing, it cannot independently create the solution.
Best Day/Worst Day Analysis: Quite often, a probate dispute will center around the validity of a testamentary document. A testamentary document will either be found to be valid or invalid. This determination leaves the parties with an identifiable amount at stake. Assuming that the approximate value of the estate is known, it’s relatively easy to determine the “best day” vs the “worst day” for each participant, should the dispute proceed to court. In most other types of cases (personal injury, malpractice, divorce, etc.), the potential outcomes are not so clear. The presence of an identifiable range of outcomes in a probate mediation helps the participants to better understand their choices. I had a case a couple of years ago where two brothers in their twenties would recover $200,000 if they won their case, and $0 if they lost. After a few hours of mediation in a Troy conference room, their step-mother finally offered to pay them $100,000 to settle the case. The case had a 50-50 probability of success, in my opinion. The youngsters told me that they wished to reject their step-mother’s proposal. I reframed the question. I handed them a 3 x 5 piece of paper and said, “Here is $100,000. Would you take this $100,000 down to the casino in Detroit and place it on a 50-50 bet? You win and you walk away with $200,000. You lose and you walk away with nothing.” And then I reminded them that their attorney would drive them to the casino, but the cost of the ride would be about $40,000, win or lose. The boys quickly understood the ramifications of their decision and agreed to settle for $100,000.
Disguised Greed and Self-righteousness: Greed and self-righteousness are present in all disputes, but it takes a different form in a probate proceeding. It is easily disguised as the efforts of the “only person here who understood what Dad really wanted.” I often have heard a participant state “I am only trying to honor my father’s wishes” [at least those I was able to unduly influence him into making]. That prompts me to ask if their father’s wish was for his children to wage a three-day battle in a public court room where all of his medical records concerning his dementia would be made public, because that is the outcome if the case does not settle at mediation.
—————
Practical Considerations
Scheduling the Mediation Session: Most probate mediations have multiple participants. It is not uncommon to have four or more participants (with four or more attorneys) involved in a probate proceeding. This creates scheduling issues. Be considerate of your opposing counsel when scheduling efforts are on-going. Answer emails promptly, or designate a person in your office to work on scheduling. It’s frustrating to wait more than a day to get an answer from someone. It impacts the entire group working on the case. If you reply two or three days after the original scheduling email goes out, it is likely that some of the dates originally proposed will no longer be available.
Payment of the Mediator Fee: MCR 2.411(D)(2) states that “The costs of mediation shall be divided between the parties on a pro-rata basis unless otherwise agreed by the parties or ordered by the court.” Attorneys frequently cite this rule in disputes about payment of the mediator fee. I do not believe that the rule applies to the typical probate proceeding. First, a probate proceeding does not have “parties.” A person participating in a probate proceeding is called an “interested person.” Second, there are typically multiple “interested persons” in a probate proceeding, some of whom have no interest in the mediation. If a charity or heir is not impacted by the court’s determination on the ultimate question, should that charity be required to pay the mediator fee on a “pro-rata basis?” Finally, even if the fee is limited to those participating, should it be divided among the number of “sides” or the number of participants? Sometimes one child is challenging a will. That child may be opposed by four siblings. Should that child pay one fifth or one half of the mediator fee? I strongly encourage attorneys to get the court’s specific decision on payment of the mediator fee when mediation is originally ordered. The court should identify who is participating in the mediation, and what percentage each interested person will be obligated to pay. I also encourage attorneys to consider whether the estate or trust should pay 100% of the mediator fee. This solution removes costly discussion and argument over an issue that is relatively insignificant, dollar-wise, in the ultimate resolution.
Notice of the Mediation: Each interested person whose rights may be affected by the outcome of the mediation should be provided notice of the mediation session, even if they have not appeared in the case. Failure to do so may invalidate a hard-earned settlement agreement. The Michigan Attorney General must be notified when a charity is involved.
Mediation in probate proceedings saves money, provides certainty sooner, and allows the parties to compromise in a way that cannot be accomplished through a decision of the court. It also allows delicate family problems to be solved in a private, confidential setting, rather than a public court room. Those who mediate probate proceedings should be aware of the intricacies of that process, and be prepared to address them as they arise.
—————
John Hohman served as a Probate Judge for 17 years. He left the bench in 2013 to become the State Court Administrator. He has served as a mediator and arbitrator since 2015. He has mediated or arbitrated cases in 45 counties throughout the State of Michigan. His primary focus is probate mediation, but he also serves as a mediator and arbitrator in civil and domestic cases.
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