Miles Mediation & Arbitration Services

ATLANTA OFFICE:
(678) 320-9118

SAVANNAH OFFICE:
(912) 417-2879

ATHENS OFFICE:
(678)-320-9118

January 25, 2018 No Comments

by Roy Paul, Esq.

The mediation of estate cases is particularly likely to involve close and intensely emotional relationships so as to make the mediation of such cases very challenging. Often, disputes arise among siblings or between parents and children. While the core issues may seem to focus on money or control, perceived personal slights going back years can boil to the surface. Mediation allows the parties the opportunity not only to avoid or end litigation, but to also find a way forward that can at least begin to heal fractured relationships.

Common Factors in Estate Disputes

Many estate disputes arise in probate court where one party undertakes to propound a particular will. Other interested parties may take the position that the decedent was not competent to make the will at issue or that the will was the product of undue influence. This is particularly likely to occur when the decedent has changed his or her estate plan to favor a new spouse or one of several siblings. Many estate plans involve trusts so that fiduciary obligations are owed not only by the personal representative of the estate, but by one or more trustees. The personal representative(s) and the trustee or trustees may or may not be the same person. There may be issues concerning joint bank accounts or the change of beneficiary designations prior to death. Actions taken prior to death under powers of attorney may also be at issue and there can be a cause of action for breach of fiduciary duty directed at the personal representative even if the challenged actions took place prior to the appointment of the personal representative. See Greenway v. Hamilton, 280 Ga. 652, 631 S.E.2d 689 (2006). Regardless of the form of conveyance, the theme is often that the decedent would not on their own have favored the recipient claiming the benefit and, instead, really intended for an alternative family member to be the beneficiary.

The Importance of Procedural Issues

Procedural issues are important in reaching a successful mediated agreement. Under O.C.G.A. § 53-5-25, the heirs and beneficiaries may enter into a settlement agreement admitting a will to probate, but providing for a disposition of property of the estate other than as provided in the will. Where all parties interested in an estate are legally competent to consent, it may not be necessary to seek Probate Court approval under O.C.G.A. § 53-5-25. See Leone Hall Price Foundation v. Baker, 276 Ga. 318, 577 S.E.2d 779 (2003). Where an agreement does not comport with O.C.G.A. § 53-5-25, its validity is governed by the rules applicable to all contracts, including the fundamental rule that only those parties to the agreement are bound by it. Special care must be taken to protect minors or incompetent parties through the appointment of a guardian or guardian ad litem. A judgment or agreement entered without the appointment of a needed guardian ad litem could be void or voidable. Keith v. Byram, 225 Ga. 678, 171 S.E.2d 120 (1969); See Collins v. Collins, 217 Ga. 143, 121 S.E.2d 18 (1961); Brown v. Anderson, 186 Ga. 220, 197 S.E. 761 (1938); Burnett v. Summerlin 110 Ga. 349, 35 S.E. 655 (1900); Freeman v. Covington, 282 Ga. App. 113, 637 S.E.2d 815 (2006). It is important for the parties and mediator to make sure that all interested parties are at the table and properly represented. In Rhone v. Bolden, 270 Ga. App. 712, 608 S.E.2d 22 (2004) the Court made it clear that there is generally no attorney-client relationship between the heirs of the estate and the attorney retained by the estate administrator. While the estate may or may not ultimately pay the lawyer’s fee, the lawyer’s client is the administrator, not the estate. Heirs or beneficiaries may need separate representation. If a guardian ad litem is necessary to reach a binding resolution, the guardian ad litem should participate in the mediation.

Achieving Success at an Estate Mediation

Getting all of the interested parties to the table so that a final binding resolution of all issues can be reached is critical. Careful consideration of the mechanics of final resolution ahead of time is also essential. The parties and mediator need to consider in advance whether a guardian ad litem needs to be appointed and to participate, whether all necessary parties are at the table and properly represented and whether Court approval under O.C.G.A. § 53-5-25 is contemplated. It may be necessary as part of a mediated agreement to seek reformation, modification or termination of a trust. See O.C.G.A. § 53-12-60 et seq. If a trust is to be affected by a settlement, the relevant trustees should be involved in the mediation and consideration must be given as to how to effectuate any settlement terms that impact an existing trust. The mediator should also attempt to find out as much as possible about the personal dynamics among the parties before the mediation begins so that the mediator can be as prepared as possible to deal with the inevitable emotional component.

 

January 19, 2018 No Comments

This has been an eye-opening year for me as a mediator and trainer. I have been mediating and training mediators for over three decades and, once again, I am humbled by how much there is to learn, how important the lessons are and how powerful, relevant and malleable the process of mediation is.

I joined Miles Mediation & Arbitration in September of 2016 and conducted the first mediator training classes at Miles in Atlanta and Savannah in 2017. Simultaneously, I shifted my practice to exclusively private mediation and left the world of community and court-connected mediation. Hence, I found myself standing at a fork-in-the-road where community mediation meets private mediation.

Private mediation began its own history in Georgia in the early 80s. Today, there are attorneys whose full-time and lucrative practice is mediation and arbitration. When I first told fellow attorneys that I was a mediator in the 1980’s, I often was the butt of jokes, such as the time one attorney asked if he got a massage with the mediation. How far we have come.

What hasn’t changed over my career? The process of mediation has withstood the test of time, attorneys and culture. The portions of my training describing the flow, the tools and the terminology has remained consistent (although I am constantly improving upon my teaching methods). The confidentiality of mediation remains vital and protected. The importance of clear, workable and enforceable terms in a written agreement is still critical to providing parties with lasting closure of any dispute. The people who complete training and become effective mediators are still full of personality, tenacious problem solvers, great communicators and instinctive students of human nature.

What has changed illuminates that “fork-in-the-road” I referenced earlier.

Mediator Styles

I used to train mediators to be strictly “facilitative” which means focusing on the process and carefully avoiding offering opinions on the strengths and weaknesses of the parties’ cases. As my own mediation practice matured, I shifted my training to include multiple skill sets including transformative, facilitative and evaluative techniques. One mediator may be transformative with one party or at one stage of a mediation but that same mediation may shift to facilitative or evaluative with a different party or at a different stage in the mediation. I have learned, and I now teach, that mediators need to be able to adapt to the nature of the dispute, the personalities in the room, the needs of the parties and expectations of both parties and attorneys.

Court Systems and Litigation

Court systems have become overwhelmed with numbers of cases and under-supported with public funds. As resources shrink, the cost of litigation has risen and the frequency of trials has decreased exponentially. The need for mediation, both private and court-referred, has never been greater. A legal system in which trials are an extravagant rarity requires a different skill sets from litigators. Lawyers must be competent negotiators and must prepare their clients and cases for both settlement and possible trial.  When I was in law school, negotiation wasn’t taught and mediation wasn’t mentioned. Hence, I believe with more passion than ever that every attorney should complete mediator training because all attorneys need to be able to have difficult conversations, negotiate with their own clients and other attorneys and anticipate and resolve conflicts. 

Mixed Training Classes

Miles training classes have been filled with both private and volunteer [community] mediators, with lawyers and non-lawyers, with diversity of age, experience and culture. This mix of people and purpose keeps us focused on what is important and unchangeable about mediation: the complexity of fairness, the effectiveness of empowering parties, the de-escalation and movement inspired by active listening, and the ultimate need to find solutions and write good agreements. I believe mediation is best taught in an interactive, challenging, real and hands-on experience rather than lecture. I love to watch trainees with different experiences and goals struggle, learn, grow and re-examine with each other and through role plays, heated discussions and practice, practice, practice. Can you tell I love what I do?

As private mediation is growing, so must community mediation. Mediators need to remain a cohesive profession protective of the essence of mediation. As I stand at this fork-in-the-road where community meets private mediation, I know and feel the pressures on both. Just as private mediators must protect fairness and neutrality at the risk of marketability, community mediators need to understand and meet the expectations of attorneys and courts without risking neutrality and affordability. Nothing worthwhile in life is easy, and the future holds many worthy challenges. Here’s to another decade of learning!

For more information about the next Civil Mediation Training Course at Miles, click here.

 

 

 

January 15, 2018 No Comments

In remembrance of Martin Luther King Jr. and the 50th anniversary of his assassination, each quarter we plan to share reflections on how King’s philosophies have influenced conflict resolution practices. We begin with messages from our mediators Bianca Motley Broom, Esq. and Stephen McKinney, Esq.

 

 

 

 

Mediator Bianca Motley Broom, Esq.

 

“Peaceful resolution of conflict was a cornerstone of Dr. King’s life. From leading the Montgomery bus boycott to opposing the Vietnam war and supporting striking sanitation workers in Memphis, he led Americans and inspired countless others around the globe through his shining examples of nonviolent protest.

While what we do on a daily basis as mediators does not have nearly as large of an impact, we all walk the path Dr. King forged as we seek to bring resolution to parties – often when they believe there is no hope for a solution without conflict. My colleagues and I are inspired daily by Dr. King’s life and his impact. We strive to show people there is a better way to resolve differences – one that brings people together instead of pushing them further apart.”

 

 

 

Mediator Stephen McKinney, Esq.

Mediator Stephen McKinney, Esq.

 

 

“There is a keen sense in which dispute resolution has become synonymous with compromise – taking half a loaf, equally shared pain/unhappiness.  In fact, accusations of bad faith, or even moral failure, are all too frequently visited upon any disputing party unwilling to repeatedly concede for the sole purpose of disposing of conflict.

Compromise has its place to be sure, but Dr. Martin Luther King, Jr. modeled a brand of moral courage that is willing to locate, articulate and insist upon the hard boundaries required by justice.  There are times when it is conflict, not its compromised resolution, that is the moral imperative.  “True peace”, Dr. King reminded, is not merely the absence of tension: it is the presence of justice.”

January 15, 2018 No Comments
Miles Athens Mediators

We are pleased to announce the opening of our office in Athens, Georgia.  Our full-time mediators based in this office are Craig Avery, Esq., Burke Johnson, Esq., and Andrew Marshall, Esq.  Founder John Miles, Esq. is also available in Athens, upon request.

Our Athens-based mediators handle cases of all types and sizes, including complex disputes in the following areas:

  • Business
  • Contracts
  • Commercial
  • Personal Injury
  • Wrongful Death
  • Traumatic Brain Injury
  • Medical Malpractice
  • Professional Negligence
  • Automobile
  • Trucking Liability
  • Premises Liability
  • Product Liability
  • Construction
  • Insurance Coverage
  • ERISA
  • Elder Care
  • Probate and Estate

Our Athens-based mediators are available to travel throughout metro Athens and beyond.

 

To schedule a mediation, please call 678-320-9118, or click here.

 

January 12, 2018 No Comments

by Matt Thiry, Esq.

The parties have retained counsel, a lawsuit has been filed, and the parties are intertwined in what will likely be a costly and time-consuming battle where even the winner loses to some degree.  If this battle could have ended before it began, would it not have been worth at least an effort?  If time, money, and relationships could have been preserved, wouldn’t that have been a better business decision?  Business contracts provide an opportunity for the parties to provide a means to mediate any disputes before those disputes result in litigation.

The Benefits of Pre-Litigation Mediation

Inserting a provision into business contracts requiring the parties to mediate prior to filing a lawsuit or initiating an arbitration proceeding is a proactive measure that can be taken by businesses to find a resolution to the dispute before the dispute becomes public.  Moreover, pre-litigation mediation provides an opportunity for the parties to preserve their ongoing business relationship, while litigation usually results in irreparable fractures to these relationships.  Mediation provides an opportunity for businesses to have control in the outcome of the dispute without waiving their rights to pursue subsequent litigation in the event resolution is not obtained.  Even if the mediation does not successfully resolve the entire dispute, time and money can be saved through narrowing the contested issues, while giving the parties the opportunity to gauge the level of interest in engaging in litigation.

Given the benefits pre-litigation mediation can provide to businesses, why isn’t it more popular among those without a contractual requirement to mediate? This can be attributed to several factors; however, the most easily identifiable reason is perception.  Requesting pre-litigation mediation when not required by the contract can be perceived as weakness by the requesting party.  While this perception is illogical, ill-informed parties may not be willing to take the risk of being perceived as weak.  However, including the mediation provision in the underlying contract takes away this perception.  Also, requesting the pre-litigation mediation required by the contract has the opposite impact.  Instead of the request being perceived as weakness, the request is a showing that your client is getting prepared to move forward with litigation.

The Value of a Pre-Litigation Mediation Provision

Consider the practical applications of a pre-litigation mediation provision in the context of the governing documents of a partnership, limited liability company, or corporation.  Litigation between business partners often results in the destruction of the business, and losses for all parties.  If the governing documents contained a pre-litigation mediation provision, the parties would be forced to consider opportunities to resolve the dispute before the business is irreparably harmed by the battles of litigation and before the matter becomes public.  This concept is no less applicable to distribution agreements, independent contractor agreements, service agreements, etc.  All types of business relationships can benefit from having an opportunity to circumvent a problem before it gets out of hand.

When inserting a mediation provision into a contract, be mindful of completeness and mechanics.  Simply stating that the parties agree to mediate before litigating, alone, is not a best practice.  As is the case with all contractual terms, it is better to be more specific as to what is being agreed to by the parties.  Consider including language addressing how a mediation demand is to be made, how a mediator will be selected, and whether the parties will provide pre-mediation position statements to the mediator.  It is ordinarily easier to agree on these concepts while the parties are forming the contractual relationship, as opposed to once a dispute has surfaced.  Also, consider whether arbitration is a better alternative for the dispute in the event mediation is not successful.

When negotiating and preparing your next business contract, consider inserting a pre-litigation mediation requirement so that your client’s interests can be best served.  After all, clients are not ordinarily averse to the idea of saving time, money, and business relationships.

 

Matt Thiry, Esq. is a registered mediator and arbitrator with significant commercial litigation experience. He mediates and arbitrates disputes in areas of business, fiduciary, real estate and probate. To book Matt for your next mediation or arbitration, please call 678-320-9118 or click here to schedule online.