MEDIATING PROBATE DISPUTES
by Susan N. Gary

A lawyer involved in a probate dispute must be able to advise his or her client both about the client's legal rights and remedies and about the client's options for resolving the dispute. If the lawyer advises the client only about the costs and chances for successfully litigating the dispute, the lawyer will not have served the client well. The lawyer should be able to discuss knowledgeably the alternative forms of dispute resolution available to the client and to advise the client on which approach is most appropriate.

Mediation has played a role in dispute resolution for centuries in legal systems as diverse as those of China and various American Indian groups. In the United States, interest in mediation has grown dramatically since the 1970s. One area of the law in which mediation plays an increasingly important role is family law, where parties routinely use mediation to resolve divorce and custody disputes. Surprisingly, in probate, another area of the law in which family issues predominate, mediation is still in its infancy. Although mediation will not be appropriate for all probate disputes, in many cases mediation may allow parties to reach agreements preferable to the decision a court would reach and may promote healing of strained family relationships. This article examines the potential uses of mediation in probate proceedings.


Nature of Probate Disputes

Disputes arise in probate for a variety of reasons. Conflict may occur over the disposition of a decedent's property because relatives are dissatisfied with the decedent's estate plan. Grief associated with the death of a loved one creates tensions, and lawsuits may follow from misdirected anger over the death. Death may cause dormant family disputes to resurface and a dispute nominally over property may in fact be a dispute over family relationships.

Disputes may arise because family members have different views of a fair distribution of a decedent's property. For example, one of a decedent's children may regard equal distribution among all the children as fair, while another child may believe that he or she should have received more because of care given an older or incapacitated parent. A dispute may arise between children of one marriage and the surviving spouse of a later marriage. The decedent's children may view the decedent's property as theirs, while the surviving spouse may feel a right to a sizable portion of the property. Litigated solutions to these problems ignore the complex emotional issues that may underlie the dispute.

Probate courts are also the forum for conservatorship and guardianship proceedings. Disputes may arise in these proceedings if the proposed protected person contests the guardianship or if family members disagree among themselves over the appropriate approach for their older relative. Disputes may develop between a care facility and family members. These disputes all involve emotional issues.

Finally, disputes may arise between beneficiaries of a trust or estate and a fiduciary. The family may disagree over who should act as fiduciary, or the beneficiaries may be concerned about investment decisions or property management issues under the fiduciary's control. If the fiduciary is also a beneficiary, the other beneficiaries may perceive inequities or conflicts of interest, whether real or imagined.


Benefits of Mediation

Family members involved in a dispute often resolve their differences without seeking assistance outside the family. Even after one party contacts a lawyer, a negotiated settlement may be possible. For some families, however, a more formal dispute resolution process becomes necessary. Some benefits of using mediation instead of litigation to resolve disputes are of particular interest in the probate context.

* Confidentiality. Mediation allows parties to a dispute to air their grievances in a private setting. Although the level of confidentiality depends on agreement between the parties and varies depending on state law, the parties may keep much of what they discuss out of the public record. The mediator usually asks the parties to sign an agreement not to disclose information conveyed during the mediation. In addition, state law generally limits the disclosure of information obtained in settlement discussions and extends that protection to mediation. Some states grant additional evidentiary privileges for mediation, but many states also impose a duty to report specified information, such as disclosures of abuse or threats of harm.

If a family involved in a will contest is airing "dirty laundry" or if information about an older person's eccentric behavior is relevant to a guardianship proceeding, the family will benefit from privacy if they mediate the dispute. If the parties agree not to disclose information revealed during the mediation, they might speak more freely and address messy relationship issues in crafting solutions to their dispute. Both sides may be more open, and that willingness to discuss difficult issues may lead to a better understanding between the parties.

* Emotional benefits. The emotional benefits of mediation can be significant. Mediation gives parties a chance to be heard. For some family members, being able to air grievances and receiving an apology or explanation for troubling behavior may be more important than receiving a property settlement. In addition, giving parties more control over the outcome may increase psychological well-being.

In a guardianship proceeding, mediation involves the older adult in the process, giving that person a voice and helping him or her listen to the concerns of other family members. Mediation may leave the person less angry and confused than a more formal court proceeding.

Mediation also helps families avoid some of the emotional costs of litigation. Mediation may be less stressful and traumatic than litigation because litigation pits parties against each other and tends to escalate the conflict. Mediation may even have emotional benefits when compared with disputes that remain unresolved. If a family member knows that he or she will not likely prevail in a lawsuit, that person may not pursue a legal remedy. Although no lawsuit ensues, the conflict within the family may persist. Anger and estrangement between family members may continue for years.

* Improved ongoing relationships. Mediation can repair, maintain or improve ongoing relationships. Probate disputes involve family members. In most cases, continuing the relationships among the various family members will benefit the family. Because the parties must work together during the mediation to develop a solution to their conflict, they may acquire communication and problem solving skills that will aid them in the future. Mediation is less likely than litigation to drive family members farther apart.

* Unique solutions. Mediation allows the parties to forge their own solution to a dispute. There are limited remedies available to a judge to resolve a dispute over property. Mediation allows the parties to take nonlegal as well as legal interests into consideration. Parties may best handle the division of property with sentimental value in this way. For example, if two siblings who are to receive the decedent's tangible personal property work together to divide the property, they will likely achieve a better result for both of them than they would if a court divided the property to reach a financially equal result.

In guardianship proceedings in most states, the court faces an all or nothing choice--the court can either appoint a guardian and deprive the protected person of all rights or decide not to appoint a guardian and leave the person on his or her own. Through mediation, the older person, family members and others can develop less intrusive solutions that will protect the older person while minimizing the loss of rights. The mediated solutions can also take into account the interests of family members who are concerned about the care of the older person.

* Cost-effectiveness. Mediation may also be more cost-effective than litigation. Particularly in small estates, litigation costs may be disproportionate to the amount at issue. More parties may be able to protect their interests if a less expensive alternative is available.


Potential Problems with Mediation

Although mediation is appropriate in many situations, some characteristics of probate disputes may make mediation difficult or even inappropriate.

* Grief. If the dispute involves a decedent's estate, the family may still be grieving over the death of a loved one. Grief may be a factor in the dispute itself because one family member may blame another for the death. If, for example, parents of a decedent have not accepted the fact that the decedent is homosexual, they may misdirect their grief over the death as anger at the decedent's domestic partner who is the primary beneficiary under the decedent's will. Grief may also affect the parties' ability to mediate. Delay may be necessary to allow the parties to progress through the grieving process.

* Power imbalance. Power imbalances are always a concern in mediation, but may be of particular concern in probate disputes. In a guardianship proceeding, if the older person contests the guardianship, mediation will be appropriate only if he or she can participate effectively. An advocate can assist the older person, not by taking the older person's place but by facilitating the older person's expression of his or her concerns. If the older person cannot participate, even with assistance, mediation is inappropriate.

Power imbalances may also exist in disputes between family members over a guardianship for a relative or in disputes over property. An older surviving spouse may be intimidated by younger family members, or pre-existing power imbalances between siblings may adversely affect the mediation. If minors are involved, it may be necessary to arrange for one or more advocates to represent their interests. A skilled mediator should be aware of potential power imbalances and manage them during the mediation so that all parties are protected. In some situations, however, the power imbalance may be too great for mediation to be appropriate.

* Long-term dispute. Although triggered by a family death, some probate disputes may grow out of a longstanding family feud. If parties have become entrenched in their positions after years of animosity, mediation may not be appropriate.

* Need for a precedent. In some situations, litigation may be appropriate to create a precedent for use in subsequent cases. This situation is less likely to occur in the probate context than in other areas of the law, such as racial discrimination cases. If, however, the situation is one for which establishing a precedent is important, that will be a factor in weighing the merits of litigation versus mediation.


Guidelines for Using Mediation

In considering mediation to resolve probate disputes, a lawyer should evaluate a number of factors. The presence of some factors makes mediation more appropriate, while other factors may mean that the lawyer should recommend against the use of mediation. Each case is unique, and a lawyer should evaluate each case individually. The guidelines that follow may help to determine whether a lawyer should recommend mediation.

* Ongoing relationship. If the parties would benefit from an ongoing relationship--the case with most family relationships--mediation may help. Further, if the parties express concern about maintaining an ongoing relationship, they are likely to work together constructively in mediation. Parties may be more concerned with rebuilding or preserving a family relationship among siblings than one between a stepparent and stepchildren. Even in the latter situation, though, a family relationship may be important, if only out of respect for the decedent.

* Willing parties. Mediation works best if all parties want to participate. If the parties come to mediation willingly, they are more likely to work together to resolve their dispute. Mandatory mediation has been criticized and is inappropriate in probate. If the parties have entrenched positions due to a longstanding dispute or moral or religious beliefs, then a negotiated or litigated resolution of their dispute will be more appropriate than mediation.

* Competent parties. All parties must be able to participate effectively. The mediator may need to make accommodations for older persons who may have restricted mobility, may have difficulty hearing or may be confused by new settings. Arranging the mediation to take personal concerns into consideration and allowing an advocate to participate when necessary may make mediation possible. If any party is mentally incapacitated, so overcome by grief that he or she cannot function or physically unable to attend the mediation, the lawyer should not recommend mediation.

* Nonlegal issues. If a dispute involves nonlegal issues, mediation may benefit the parties. Mediation permits parties to create their own solution to the dispute and allows them to address both nonlegal and legal issues in reaching that solution. Mediation also allows parties to ex-press their personal concerns, anger or grief. Being heard by other family members may be part of what some disputants want or need.

* Confidentiality. If parties want confidentiality because of the sensitive nature of the dispute, mediation will provide greater privacy than litigation. In family disputes, minimizing the public record may benefit the parties. If one of the disputants is a public figure, this factor may be of particular importance. If the dispute involves relationships outside of society's accepted norms, the privacy associated with mediation may also be desirable.

* Minimal power imbalances. A lawyer recommending mediation should consider whether power imbalances might adversely affect the mediation. Although a skilled mediator can manage some power imbalances, and although power imbalances can affect litigation as well as mediation, effective participation remains an important factor. An older person with weakened physical or mental abilities may not be able to participate adequately. If there is a history of dominance in the family, between either generations, spouses or siblings, the power imbalances may be too great to overcome. If there is an indication of physical or mental abuse, mediation will be inappropriate. In addition, if an entity such as a hospital or nursing home is on one side of the dispute and an older person or the person's family is on the other side, the individual or family may feel intimidated by the institution. Mediation may not adequately protect the rights of someone who feels overwhelmed by the other party.


Example

A probate dispute has legal issues that a court can resolve. A litigated outcome will likely mean that one party "wins" and the other party "loses," based on legal rules. A dispute, however, may also involve a number of emotional issues. For example, parties may disagree on what would be a "fair" distribution of the decedent's estate. The court can determine whether the will was valid but will not be able to address the underlying family issues. In contrast, parties who mediate their dispute may construct a solution that allows both sides to win.

To demonstrate a situation for which mediation would be appropriate, consider a family consisting of a mother, a father and their two adult daughters, Alice and Barbara. After the father died, the mother moved in with Alice and lived with her for eight years until the mother died. In the last two years before her death, the mother was bedridden, and Alice cared for her at home. Barbara lived in another state. She called frequently but was unable to visit much or to help with the care of her mother. On the mother's death, the mother's will left her entire estate to Alice. A prior will that the mother executed before the father's death gave the estate to the father, or if he predeceased the mother, divided the estate equally between the two daughters.

Alice thinks that the result under the will is fair because she cared for her mother for many years. Alice thinks that Barbara does not need the money and that Barbara does not deserve a share of the estate. Barbara is hurt by her mother's will. She thinks that if her mother loved the daughters equally, she would have divided the estate equally. She thinks Alice convinced her mother to leave the estate to Alice.

Barbara talks to a lawyer about what she can do. The lawyer first considers the legal issues around whether the will disinheriting Barbara is valid. The lawyer looks for evidence of undue influence and lack of mental capacity. Several facts raise suspicions about the will and about whether Alice unduly influenced her mother to execute a new will. The mother was in declining health, she lived with Alice, and Alice had both the motive and opportunity to influence her mother. Other factors, such as when the mother executed the will, whether the mother was under medication and whether witnesses can speak about the mother's mental capacity, could be important. After gathering this information, the lawyer might be able to put together a case of undue influence by Alice and lack of the mother's testamentary capacity.  The facts, however, may be difficult to establish. Alice may have neighbors who can testify that the mother told them repeatedly that she was thankful for Alice's care and that she would reward Alice in her will. The will does not give property outside the family and could be viewed as rewarding Alice. The evidence will likely go both ways, and it will be difficult to predict the outcome in court.

If Alice and Barbara litigate the case, one of them will win and the other will lose. In addition, they will lose their relationship with each other, at a time when they have lost their mother and would otherwise benefit from family connections. They will also face legal bills and the emotional strains of litigation.

After reviewing the facts, weighing the legal arguments and considering the potential benefits of mediation for these particular parties--repairing the sibling relationship and addressing the emotional issues involved in this dispute--Barbara's lawyer might suggest mediation. Even if Alice thinks that she would win in a lawsuit, she may be willing to mediate to avoid the litigation and because she cannot be sure of the outcome in court. Barbara may be willing to mediate for the same reasons.

Assuming Alice and Barbara agree to mediate, they will meet with the mediator, either with or without their lawyers present. If the lawyers are not present at the mediation, the parties most likely will agree to have their lawyers review any agreement that they reach before they sign it. The mediation process may benefit the sisters in a number of ways. During the mediation each sister will have a chance to tell her story and will listen to her sibling's story. Barbara may be able to understand the sacrifices that Alice has made and the toll that the years of caring for their mother took. Alice may be able to understand Barbara's hurt feelings and her distress over feeling that their mother did not love her. Alice may even be able to soothe those hurt feelings by telling Barbara that their mother did love both daughters but changed her will in gratitude for the care Alice provided and not because she loved Barbara less. The daughters may be able to reach an agreement on dividing the property, for example, by agreeing that Barbara will take some sentimental items or a small share of the estate. In addition to whatever Alice and Barbara agree to do with the property in the estate, they will have opened channels of communication and may be able to build a better sibling relationship. The result may well be a "win" for both of them.

Although this example provides a best case scenario for mediation, the example is not unrealistic. Many probate conflicts could benefit from mediation rather than litigation.


Conclusion

Mediation will not be desirable in every case, but the personal and family aspects of probate make this area of the law particularly appropriate for mediation. Lawyers practicing in this area should familiarize themselves with the benefits of mediation and be able to recommend it to their clients when appropriate.


Susan N. Gary is a professor at the University of Oregon School of Law and is Chair of the Probate and Trust Division's State and Local Law Concerns of Exempt Organizations (D-3) Committee.


Probate & Property Magazine is published six times annually and is included in section members' annual dues.

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