Mediating Estate Litigation ~ by Joseph J. Sullivan, C.S.
Mediation in estate litigation can be an important tool for very similar reasons as in other types of litigation (commercial, employment, insurance or personal injury cases). Legal costs can easily overwhelm the subject matter of the litigation. A confidential tailored settlement at mediation is almost always preferable to expensive litigation. Early mediation in estate matters is often considered, however adequate discovery, including documentary discovery, is required beforehand.
Estate litigation matters often include claims of undue influence and testator incapacity. These can be ideal for a mediated settlement. A mediation respects the privacy of the parties and a careful mediator can try and preserve family relationships by avoiding protracted litigation.
Here is a checklist of issues to consider before estate litigation mediation:
First, who should be present at the mediation? Naturally the litigants would be present with counsel, but experts could also be invited. Experts such as business or property valuators, or income tax experts, could be invited. If there is sufficient cooperation, there might be a “hot tubbing” of experts where opposing witnesses could try and build a consensus before the mediation.
Second, adequate documentary production, well before mediation, is essential. Mediation can be frustrated if the parties are seeing the opposition’s documents at the mediation for the first time.
Third, have tax implications been properly analyzed beforehand? Most estate litigators will not give intricate tax advice especially during the mediation. Each party should make sure that his or her tax position has been considered in advance so that no surprises arise after the negotiated settlement.
Fourth, are the parties looking for a conciliatory style mediator or an evaluative mediator? If the parties are looking for an opinion, a retired Judge might be the wise choice for mediator. Many times, however, the conciliatory mediator is the choice; that is, a mediator who will point out the litigation risks to each of the parties rather than express a firm opinion. Evaluative mediators can, on occasion, come between counsel and the client if the mediator’s opinion is at odds with advice given by the lawyer.
Fifth, who pays? This must be worked out in advance. Depending upon the terms of the Will, and the position of the litigants, the parties may not always assume mediation fees are paid “out of the estate”. Estate litigation costs are not automatically paid out of the estate.
Sixth, how do we bring down the temperature? Invariably, a prudent mediator seeks to bring peace to warring litigators at a mediation. Counsel should prepare her client well in advance to manage expectation as to likely outcomes at mediation and the potential strengths of the opposing case. That preparation is apparent to mediators at 10:00 a.m.
Seventh, authority to settle. Counsel must be certain all of the parties required to settle the matter are present at mediation.
In conclusion, these issues are importation at mediation. We mediators appreciate the efforts of counsel who address these issues before the mediation date.