In Part 1 of this post
, I stressed how important it is for the mediator and the parties’ attorneys to recognize the combination of emotions clients are trying to reconcile in the mediation of a probate dispute. I suggested this was necessary so the mediator could evaluate the clients’ expectations, and so the lawyers could manage those expectations. In Part 2, I will expand on that thought.
Michael S. Orfinger
Most of the probate disputes I have mediated involve stepparent/stepchildren disputes, or some other dispute within a blended family. Thus the paternal, maternal, or filial bonds one might naturally expect are all too often absent. Sometimes, even if all the interested parties are related by blood, they may be so separated by age or geography that whatever familial bonds once existed have unraveled. The passing of the decedent has perhaps shattered the last wall of civility that the parties previously observed.
All of this makes for a lot of venting in the mediations’ initial caucuses. “Venting about what?” you might reasonably ask. Not about the merits of the dispute, except in the most tangential way. Instead, the parties frequently engage in ad hominem attacks on their counterparts, discussing wrongs inflicted upon them by the other decades ago. They may also lament how the decedent expressed a preference for their counterpart, much like Tommy Smothers’ tagline, “Mom always liked you best!
Is any of this relevant? Perhaps not in the evidentiary sense, but it is most certainly relevant in mediation. One of the beauties of mediation is that if something is important to the parties, then it is important to the process. While most of us would never engage in intra-family litigation, we can identify with being angry or resentful toward a relative. Fortunately, we usually get over it or at least swallow it down if for no other reason than for the sake of family peace. But, in many probate cases, the families are already hopelessly and irretrievably torn asunder. Thus, suggesting that settlement may go a long way toward restoring family harmony likely will fall on deaf ears. All the venting in caucus, however, should give the attorneys and the mediator tremendous insight into the clients’ decision-making process. Specifically, it will reveal the path down which your client wants to travel.
I suggest that there are three decision “tracks” in probate mediation Those who choose Track One are
those who want to settle
. These litigants accept that past offenses cannot be undone, that the clock cannot be turned back, and that the proper focus is on how their lives should proceed going forward, not how they should have proceeded in the past. They also understand that in probate, protracted litigation serves only to deplete the estate, meaning that the last person standing may have won only a Pyrrhic victory.
Tracks Two and Three, while sharing some similarities, are nonetheless quite different. Litigants choosing Track Two are
those who do not want to settle
. While there are many reasons why this might be the case, it is frequently because the litigant believes there is little or no substantive evidence to support their adversary’s position. In that instance, the litigant is likely to view his or her adversary as merely trying to “extort” money from the estate. This is not to say that those proceeding along Track Two will never settle. As discovery progresses, the legal and factual landscape of a case may change. It may be that the case can be settled so inexpensively that economic rationality carries the day.
Contrast the Track Two litigant with someone traveling down Track Three. This is someone who not only does not want to settle, but
who affirmatively wants not to settle
. The difference is that someone on Track Two may settle anyway if persuaded to see the wisdom of doing so, while someone on Track Three will not settle because the very act of settlement contradicts his or her affirmative desire. I am not suggesting that someone whose thinking follows Track Three is irrational; it may mean that person is getting an intangible and non-monetary benefit out of continuing the litigation for which a settlement would not compensate.
Mediation advocates should go into mediation knowing whether their clients are proceeding down Track One, Two, or Three. Doing so will enable them to manage their clients’ expectations regarding settlement, and to guide the negotiations accordingly. Allowing venting and acknowledging the validity of the strong emotions underlying it will give a probate mediation its best chance of settling.