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The Challenges of Mediating in Probate (Part 1)

My last few posts have concerned “endgame” tactics to break a mediation impasse.  While I have more to say on that subject (particularly “baseball arbitration”), I want to turn my attention here to one of the most challenging types of cases to mediate – probate litigation.

The entire probate system is designed to allocate the decedent’s wealth among creditors, heirs, and other beneficiaries.  From a purely legal standpoint, then, probate is all about money.  If that is true, then probate litigation is perfectly suited to mediation, because it deals with the division of a finite pot of assets.  In Florida, our Probate Code seems to promote mediated settlement; Fla.Stat. s.733.815 allows interested persons in a probate proceeding to alter the interests, shares, or amounts to which they are entitled by executing a written agreement to that effect.  So mediating a probate case should be easy, right?

Not so fast.  Probate litigation is as likely to be fraught with strong emotion as even family law cases.  Appropriate to this topic, an eighteenth century physician named Thomas Fuller said, “Money is the sinew of love as well as war.”  There seems to be a tendency in probate litigation for litigants to equate how much the decedent loved them with how much the decedent left them, especially as compared to other beneficiaries.  One who is excluded as a beneficiary altogether will be loath to accept the conclusion that his exclusion was something the decedent deliberately considered and executed.  It is far easier for a frustrated or excluded beneficiary to blame another beneficiary – whether a sibling, stepparent, caretaker, or neighbor – for what might actually be a shortcoming on the frustrated beneficiary’s behalf, or a shortcoming in the relationship he or she had with the decedent.

Common probate contests pit sibling(s) against sibling(s); subsequent spouse against children of the decedent’s original marriage; or sibling(s) against caretaker.  The claims themselves tend to fall into four categories:  (1) improper execution of the testamentary documents; (2) lack of testamentary capacity by the decedent; (3) undue influence upon the decedent; and (less often) (4) a latent ambiguity in the testamentary documents themselves.

What makes up the volcanos of emotion probate litigants bring to the mediation table?  Certainly there is no exhaustive list, but I would suggest some common ingredients.  The first is grief over the decedent’s death, which a will contest may serve only to prolong.  Next, the parties are likely to feel anger toward their adverse litigants.  Importantly, that anger may have absolutely nothing to do with the dispute at hand; it may instead be a byproduct of a dysfunctional relationship those parties have had their entire lives.  Next, litigants may feel a sense of betrayal by the decedent, as set forth in the testamentary documents.  And last but not least, all of these feelings (with the exception of grief) emanate from one overarching emotion:  a feeling of “entitlement” to the estate.

Both the mediator and the advocates for the parties must recognize the combination of emotions percolating in the clients’ heads and hearts.  Doing so will help the mediator evaluate the clients’ expectations.  Of equal importance, though, is the fact that this will help the attorneys manage their clients’ expectations.  Only then can lawyers help their clients go through the analysis necessary to make the mediation meaningful.




Michael S. Orfinger is a principal mediator at the firm of Upchurch, Watson, White and Max.



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