The Case for Mediating Estate Disputes: An Option for Probate Attorneys to Consider

Mon, Aug 5th, 2024 | by Miles Mediation and Arbitration | Article | Social Share

By Kelly K. James

If you’ve ever served as an executor, you may already know how complicated, stressful, and time-consuming the process can be. In fact, according to a recent study, the average estate takes the executor about 570 hours to settle. Estates are often rife with conflict — 44 percent of adults surveyed said they experienced conflict during the handling of an estate.

Mediation offers the parties involved in probate disputes the opportunity to settle the conflict more quickly and less expensively than litigation. Mediation can also help protect the relationships among the parties in conflict. Here’s a closer look at why mediation is a smart option for probate disputes and what to consider if you’re representing a client in one.

The Need for Mediation

“I don’t see a lot of information about estate mediation,” says George Compton, the publisher of executorium.com, a website designed to assist executors as they administer estates. “Mediation can be the exit ramp off the litigation highway, but it needs a higher profile.”

Complicating the issue is that most executors haven’t performed the demanding work of administering an estate before. “There is a certain skill set that executors need,” says George. “Another big problem is underestimating the workload and the time it’s going to take … and often you’re not at your best.”

Finally, “estates can be rife with discord and litigation is very expensive,” adds George. “Mediation offers an alternative that can alleviate an executor’s and a family’s big problem.”

The Benefits of Mediation

“Mediation is a perfect fit for estate disputes for two reasons. First, estate disputes often involve emotional issues and family dynamics that often go back years, if not decades,” says Atlanta-based mediator David Nutter. “A mediator is in a good position to absorb some of that emotion so that the parties can get in a position to make a sound decision in favor of resolution. Second, the economics of most estate disputes favor a mediated resolution because the ongoing attorney fees can eat away at the estate and lead to a Pyrrhic victory. The prevailing party may find that they still must share the estate with the opposing party in some manner, so there is no home-run outcome from a trial.”

“Probate cases involve surviving family members, for whom relationship restoration and claim resolution are both pertinent,” adds mediator Blane McCarthy, who is based out of Jacksonville, Florida. “It is one thing to resolve a dispute between people or entities whose paths will not thereafter cross, but family member-based disputes should be viewed in the context of the existing and ongoing relationships.”

Typical Issues in Estate/Probate Disputes

“Allegations of undue influence and claims of breaches of fiduciary obligations frequently are the issues giving rise to estate disputes,” says Matthew Thiry, an Atlanta-based mediator and general counsel at Miles Mediation. “Often, but not always, this involves one sibling accusing another of bad acts. In some respects, estate disputes sometimes look somewhat like a family law dispute. Disputes between siblings are no less contentious than disputes between spouses.”

Other cases may involve the lack of a will (intestacy) or a recently changed will that is suspect (will contest), says Blane. “Sadly, the family context issues often involve some underlying dysfunction or partial estrangement, leading to distrust and reluctance to ‘work together’ toward a solution,” he says.

Mediation Over Litigation

Probate matters can be, and often are, litigated. This often isn’t the best route for the parties involved. “Estate disputes usually involve disagreement and hard feelings between family members. The dispute usually goes beyond the matters stated in the court filings, but the court proceedings are usually focused on what has been presented in those filings,” says Matthew. “Mediation allows the parties an opportunity to be heard on issues that would not likely be addressed in court. Mediation also provides an environment where the emotions and the legal issues can be worked through. The result is not always peace between family members. However, the process does provide a better sense of closure, as the result is agreed upon instead of decided.”

“Even in cases where the parties are unable to bridge the gap on their own, an independent mediator is in a good position to propose a mediator’s settlement at the end of the mediation,” adds David. “This allows the parties to choose a compromise solution that may well be in the interest of all parties without having to necessarily agree with an estranged family member while saving the risk and expense of a trial.”

Advice for Probate Attorneys Preparing to Mediate

Probate attorneys should prepare their clients for what to expect at mediation, says Matt. “Successful mediations in estate disputes are rarely quick. It often takes time for the parties to have an opportunity to express their issues and concerns, as they work through the emotional aspects of the situation,” he says. “It is always helpful for counsel to prepare his or her client for what is likely going to be a long day. It is also helpful to prepare a client for the likelihood that some of what the other side is going to say is going to add to frustrations. Thankfully, my experience has been that the attorneys practicing in this area have a great approach with clients, and the clients are usually well-prepared for the process.”

“Probate lawyers should be focused on an experience that addresses the legal issues but also aims to advance the cause of ‘family’ thereafter,” adds Blane. “That may not mean harmony and healthy interactions thereafter but should at least aim at a resolution that does no further harm to those who will remain related—by blood or marriage—after the case is dismissed.”

The Reward of Mediation

While these cases can be demanding for attorneys, their clients, and the mediator, the ability to settle an emotionally draining case is well worth the time and effort. “Probate mediations are difficult and rewarding. The difficulty lies in the emotional undercurrent often present and the underlying relationship that will outlast the legal dispute,” says Blane. “The ‘reward’ is when the claim can settle, and the family has a healthy view of each other and a reason to proceed forward in life with more productive (or less destructive) interactions.”

ABOUT MILES MEDIATION & ARBITRATION

Miles Mediation & Arbitration is shaping the alternative dispute resolution (ADR) industry with our comprehensive professional services model that combines the expertise of our highly skilled, diverse panel of neutrals with an unparalleled level of client support to guide and empower parties to fair, timely, and cost-effective resolution regardless of case size, specialization, or complexity. For more information, please call 888-305-3553 or email support@milesadr.com.