Mediation is a widely used, generally effective disputeresolution tool that is not limited, but particularly well-suited, to disputes involving probate, guardianship, trust, and other personal and inheritance matters. It’s a form of alternative dispute resolution that features confidential communication among parties with the assistance of a neutral mediator as a path to agreement; every jurisdiction has its own laws regarding mediation and confidentiality.
It’s not just for disputes currently pending in or heading to court: Estate and trust practitioners can use mediation when conflict and disagreement first emerge—for example, among family members with differing views of how to care for aging parents; between spouses as they formulate their joint estate plans and consider treatment of children and others according to their ideas and values; or with business owners determining their succession plans.
Most jurisdictions encourage alternative dispute resolution, and some even offer mediator training. The American Bar Association’s Model Rules of Professional Conduct specifically address attorneys who serve as mediators. The Federal Rules of Evidence and regulations in most states, meanwhile, proscribe the admissibility of settlement-related evidence. A number of states, led by Nebraska in 2003, have adopted the Uniform Mediation Act, which attempts to bring uniformity to mediation across the country. A primary purpose of the Act is to provide “a privilege that assures confidentiality in legal proceedings.” Several other states have adopted similar bills.
A word of caution to attorneys considering mediation: Be aware of statutory and other deadlines as you pursue resolution out of court. Most states have short periods (ranging anywhere from a few months to a few years) in which someone can begin a challenge to a will or trust. A given state’s “savings statute” may preclude one’s ability to dismiss and refile a will contest. Some causes of action require exhaustion of remedies.
Choosing A Mediator
Mediators may be assigned by a court or selected and agreed upon by the parties, or some combination of both. Disputes regarding inheritance and related topics involve highly specialized areas of the law, with many technical requirements and nuances. A talented, highly qualified mediator in a certain area may be, but is not necessarily, suited to your dispute.
Increasingly, mediation is used to resolve matters involving a living person whose capacity is disputed. It is desirable for the mediator in a matter involving “elder mediation” to be familiar with the legal aspects of aging, guardianship, “person-centered” approaches, supported decision making, lesser restrictive alternatives, powers of attorney, health care, Medicaid, and related areas. As professor Susan Gary of the University of Oregon School of Law explains, “guardianship and conservatorship raise difficult questions for older persons and their advocates. Mediation can provide a beneficial alternative to the adversarial process in answering these questions.”
The American Bar Association’s Model Rules of Professional Conduct specifically address attorneys who serve as mediators.”
Practitioners and mediators face unique challenges when mediation involves a person whose capacity is in question. Adds Gary: “Elder mediation honors these central tenets: self-determination of all the participants, dignity of the elder or disabled person, confidentiality, and voluntary participation.”
Mediation For Trust/Estate and Related Disputes
Where the preservation of family or business relationships is the goal, mediation offers an alternative to the often comity-shattering effects of litigation. As one retired probate judge has written, “Whether fighting over a multimillion-dollar business or a single mink coat, probate litigation has severed family relationships in many cases.” As Gary notes, “Disputes over property or legal rights often carry with them unacknowledged emotional issues. The way in which the family resolves the dispute may determine not only the property rights but also whether the family relationship will survive or suffer irreparable damage. . . . Mediation has had substantial success in areas of the law in which the problems involve family and emotional issues and in which the parties benefit from maintaining an ongoing relationship.”
Mediation also helps the parties avoid the costs and uncertainty of litigation. Moreover, when a family business is involved, resolution through mediation may preserve the business, sparing employees and even benefiting the community more broadly.
Estate and trust practitioners, whether litigators or not, should understand the basics and potential benefits of mediation at the planning, or “ripe dispute,” stage. This is often the best way to ensure a fair dispute resolution for all.
Julia Meister is a partner in the Cincinnati office of Taft, and leader of the firm's Wealth Transfer Litigation practice. She has first chair bench and jury trial experience and has represented clients in appeals and in alternative dispute resolution, including mediation and arbitration. Julia counsels and represents clients in business, class action, commercial, estate, guardianship, trust and fiduciary matters, and professional ethics and discipline matters before courts, administrative tribunals and arbitrators.