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A Mediator that Litigates is Key to Mediating Estate and Trust Disputes

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Attorneys practicing in the area of estates and trusts, whether planning or litigating, understand that estate and trust disputes present their own special challenges that are unique to this area of practice. More often than not, long held resentments and other family issues complicate a dispute that might appear on the surface to be about money or property. There are emotions and motivations at play that do not exist in other types of litigation matters such as business disputes or personal injury actions. Estate and trust disputes are often good candidates for mediation for a variety of reasons, including maintenance of family relationships, preservation of estate and trust assets, maintaining family privacy and obtaining results that cannot be achieved by the courts. Successfully mediating such disputes can be challenging, and choosing a mediator with previous experience litigating such disputes can provide a number of advantages. Five specific advantages of using a mediator that has experience litigating these types of disputes are detailed below.

1.) Subject matter expertise: A mediator that has experience litigating estate and trust disputes has knowledge of the substantive law and procedure that will apply to the dispute. This relieves the attorneys on both sides from having to educate the mediator as to the arguments and legal issues involved. The mediator will be able to quickly understand and evaluate the estate planning documents and law at issue in the case, enabling the mediator to raise specific issues and challenges on both sides of the dispute that will help facilitate a resolution.

2.) Understanding underlying family dynamics: A mediator that has dealt with distraught and emotional clients during litigation is better equipped to deal with emotional parties at mediation. The mediator will understand that the dispute is likely about more than just money or property, and that the litigation may be the manifestation of long-standing family issues (for e.g., perceived favoritism by the deceased, sibling rivalry, or jealousy and anger over a marriage or other relationship of the deceased). The situation is further complicated by the fact that the parties are likely still in one or more stages of grief over the loss of their loved one. The parties’ motivations in an estate or trust dispute are often tied to things that have nothing to do with the legalities of the lawsuit. An experienced mediator can often get to the bottom of the parties’ true motivations and explain that family issues, anger or resentments cannot be solved by a judge or jury in a courtroom. The mediator may be able to remind the parties that family harmony can still be achieved following the resolution of the dispute and the passage of time. An experienced mediator will likely be able to offer examples of his or her own clients that were able to maintain some type of relationship and/or family harmony following the successful resolution of a dispute.

3.) Client confidence in the mediation process: Unlike experienced business clients, the clients involved in estate or trust litigation are likely to have never been exposed to litigation. They will understandably have questions and concerns about the mediation process. Being able to assure your client that the mediator you have chosen to undertake this important step in the litigation process is key. Assuring your client that the mediator has substantive knowledge as well as firsthand experience litigating similar disputes should put them at ease and give them greater confidence in the process as well as make them more optimistic about the chances of reaching a resolution.

4.) Balanced Perspective: A mediator that has experience litigating for fiduciaries and beneficiaries is better able to grasp and illuminate both sides of the dispute. Sometimes as advocates for our clients, attorneys become so entrenched and invested in their client’s position that it becomes difficult to see the other side clearly. Clients involved in estate and trust litigation often are so angry, and so sure of the other side’s wrongdoing, that they cannot believe that a judge could possibly see the case any other way. An experienced mediator will be able to help the parties see that there are generally two sides to every story, and that there is a distinct possibility that a third party, such as a judge, an arbitrator or a juror, might not perceive the situation the way they expect. Further, an experienced mediator can reassure parties that their side of the story is heard, understood, and is being effectively communicated to the opposing party.

5.) Creative solutions: As alluded to above, an experienced mediator knows that often times what appears to be the main issues in an estate and trust dispute turns out to be less important once the motivations and goals of the parties are explored. Family heirlooms, personal property and sometimes real property often have sentimental value to the parties that should not be overlooked or ignored. A mediator that litigates estate and trust disputes knows that a client’s attachment to what the attorneys might consider “valueless” items should not be underestimated, as it can result in the unraveling of a proposed settlement agreement. The mediator will be better able to appreciate that sentimental property does indeed have value and that they must be respectful and understanding of the parties’ attachment and feelings surrounding certain property. Further, an experienced mediator will be able to convey to the parties that there are often ten different ways to resolve a dispute at mediation, but in the courtroom there will generally only be one of two ways a judge can resolve the dispute. The tools available in the estate planning arena to structure devises and the division of property, while being mindful and aware of tax and other legal consequences are numerous and varied. A mediator that practices in this area can help the attorneys and the parties craft creative solutions that accomplish the parties’ goals.

Finding a mediator with the requisite training and experience you are seeking to mediate your estate and trust dispute should not be difficult. The Florida Supreme Court Dispute Resolution Center can help you locate Supreme Court Certified mediators in your area or look up specific mediators to determine if they are certified.1 If the dispute involves particularly thorny legal issues you may choose to use a subject matter expert, even if they have not completed mediation training and obtained certification. Sophisticated estate planners that have some litigation experience and are board certified can be an excellent choice for mediation when the solutions will likely involve complicated settlement solutions, including the forming and/or reforming of trusts or other estate planning documents and tax issues. Finally, you may want to consider using a retired probate judge as your mediator, particularly where you have a strong minded client entrenched in his or her position. The authority a former judge possesses can often help the client understand that a “win” is not guaranteed, and that a mediated settlement agreement is a more appropriate and desirable solution.

In sum, the emotional and financial toll that estate and trust litigation can have on clients is enormous, making these types of cases good candidates for mediation. The advantages of choosing a mediator that has experience litigating estate and trust disputes cannot be overstated and will increase the odds of a successful outcome at mediation.

1 You can conduct a Mediator Search of Florida Supreme Court Certified Mediators, or look up specific Certified Mediators by going to: https://www.flcourts.org/Resources-Services/Alternative-Dispute-Resolution, and clicking on “Mediator Search.”

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