Mediating Estate/Trust Disputes
Although emotions frequently run high in estate and trust disputes, particularly in the early stages, most such disputes are eventually settled. I find that in most instances where these cases are settled, that result is achieved only through a process known as mediation.
To those who are not familiar with mediation, it is a private, confidential, non-binding process where parties to a dispute meet with a mediator (generally a retired judge, highly experienced attorney specializing in the subject matter of the dispute, or a law professor), whose objective is to forge a settlement of the dispute. The format of a mediation goes something like this: the parties convene together in one room, then after brief introductory remarks by the mediator, the attorneys for each party make a brief presentation of their clients’ positions. This is also an opportunity for the mediator or the parties to ask questions of one another, or for the parties to say things that they want the other side to hear. The beauty of the process is that by law, nothing said during a mediation is admissible at trial. This permits a high degree of openness and candor that you cannot otherwise find in litigation.
After the initial remarks, questions and statements, the parties typically separate into different rooms and meet privately with the mediator. An effective mediator will at first simply listen to each party, attempt to size up their concerns, and then use the knowledge acquired from the initial private conversations to begin an actual settlement dialogue. In most instances the mediator will eventually convey an initial settlement demand from the plaintiff to the defendant, then convey back any counteroffer. From here the mediator will engage in a sort of “shuttle diplomacy”, going back and forth between rooms, with the hope of ultimately brokering a settlement. If the case is in fact settled, any competent mediator will immediately prepare, or direct the attorneys to prepare, a “memorandum of understanding” to be signed by the parties then and there, which contains the basic terms of the settlement.
Although it is difficult to be precise in measuring mediation outcomes, some studies of the process have in fact been conducted. Those studies, in the aggregate, find mediation to have a 70-80 percent success rate in resolving cases.
A good mediator will generally run between $350-500 per hour, with the costs to be evenly divided by the parties. With few exceptions, I find it is money worth spending.
