Mediating Probate Disputes or Herding Cats

The Texas Alternative Dispute Resolution Procedures Act (Texas Civil Practice and Remedies Code, Title 7, Chapter 154) authorizes the court, on the motion of either party or on the court's own motion, to refer a pending case for mandatory alternative dispute resolution (ADR) procedures. Experience so far has shown that the preferred ADR method, in terms of court referral, is mediation.

Further, positive experiences with this form of ADR are causing more frequent agreements between attorneys, with their clients' consent, to mediate, even without a court order. The effective practice of law includes a healthy pragmatism. When attorneys discover something works, we tend to make it part of our practice.

Mediation works because of several characteristics. It is flexible. Neither the parties nor their attorneys are bound by the rules of evidence in exploring creative ways to resolve the dispute. The process involves confidentiality, so that nothing is communicated to the other side that a party and his/her attorney do not want to be communicated. Mediation is cost effective. If a case settles during mediation, the time and cost of litigation are both saved, and (an additional advantage in probate contests) the consumption of estate assets can be minimized. Mediation leads to timely resolution, allowing the parties to put the matter behind them and get on with their lives. The process allows the parties to control what is theirs. The lawsuit is a piece of property which the parties own. In a mediated settlement, the parties decide what they will do with the property and thus avoid the matter being taken out of their hands when the attorneys rest and close at trial. All of the above can lead to a reduced "hassle factor" for both clients and attorneys, as time, money and nerves are all saved.

II. Peculiarities of Probate Contests

Probate contests are unique in a number of ways. First of all, any attorney who has a significant amount of experience in this area is aware of the evidence issues peculiar to probate cases. It may involve a Dead Man's Statute issue or a hearsay exception under TRE 803 (3) concerning the admissibility of a declarant's statement of memory or belief relating to the execution, revocation, identification, or terms of declarant's will.

Further, sometimes the testamentary capacity issue in a will contest is combined with a contractual capacity issue in the same case where the personal representative is challenging the validity of a survivorship type of account. Coupled with the fact that there are two different standards governing the two types of capacity, there may also be a question concerning burden of proof on either or both of these issues. These questions are elementary to most veteran probate attorneys. However, the attorney on the other side, while fully competent as a trial attorney in other areas, may be on the wrong page on the issue of, for example, burden of proof on testamentary capacity.

Accordingly, the skilled probate attorney, in the context of mediation, may have to "educate" the opposition by providing copies of authority in the form of case law, treatises, etc. Otherwise, there is a danger the case will not settle because one side has an unrealistic view of the strength of his or her case based on an erroneous view of the applicable law.

III. Peacemaking in the Midst of Dysfunctional Relationships

Furthermore, probate cases are similar to divorce cases in that protracted litigation leads to the consumption of limited resources, making probate contests (it would seem) ideal for mediation. However, in spite of this fact, it is my experience that, generally, probate contests are the toughest cases to mediate because of the family dynamics that are brought to the mediation. It is not unusual for years of family bitterness to be the driving factor in the litigation. Part of the process in the mediation involves working through this baggage in order to get the parties to a settlement mode. (Note the emphasis below on patience.)

IV. The Role of the Mediator

Qualifications for mediators are set out in Chapter 154 of the Civil Practice and Remedies Code. It is not the purpose of this paper to detail the qualifications, but to deal with the mediator's function(s), with the emphasis on the advocate's preparation for the mediation session. The paragraphs under this heading should be read with an eye toward the subsequent discussion of the advocate's role in mediation.

The mediator's efforts are directed toward facilitating a settlement. During the session the mediator will be (a) encouraging non-polarizing communications between (or among) the parties and their attorneys; (b) assisting in defining the issues; (c) exploring both options and resources for settlement; (d) examining risk factors; and (e) inquiring as to the feasibility of settlement proposals. In fulfilling these functions, the mediator must maintain the confidentiality and neutrality of the mediation process.

There are three elements which have to be present at the inception of the mediation in order to maximize the potential for settlement. The presence of the elements will not guarantee a settlement; but the absence of any one of them can, and often does, sabotage a potential agreement.

The first element is that all present must have full settlement authority. The focus of the mediation session is to leave the mediation will a full settlement agreement which has been reduced to writing and signed by all parties. This presupposes full authority of all present. Of course, this takes into consideration those special cases where final approval must come after the agreement is made. For example, if a bank is involved as a party the settlement agreement may have to be approved by a committee.

The second element that must be present is that all participants must be willing to devote the time to go through the process. When I set a case for a full day mediation, my calendar is clear for the whole day, and I so inform all attorneys of this fact. I assume they will also clear their calendars and advise their clients to do likewise. This means everybody must be prepared to work into the night, if necessary, assuming there is meaningful movement in the negotiations and we are making progress. It is not unusual for a mediation session to extend well beyond closing time and even bedtime. Probate mediations have a peculiar tendency to go into extra innings.

The final, and perhaps most important, element is that all present must exert a good faith effort to settle the dispute. This means being patient, open-minded and willing to listen and explore all options for resolution. Sometimes this is difficult to do, particularly when the background of the controversy includes bitterness and interpersonal disfunction. However, the attorney can do a lot toward assuring the presence of this element in the way he/she prepares the client for the mediation.

V. The Role of the Advocate

The mediation practice owes much to the late Steve Brutsche, who was perhaps the pre-eminent attorney-mediator in Dallas, and was definitely a pioneer in the development of mediation as an ADR method throughout the state. Although I do not know who originated the term, it is from Steve that I learned to appreciate the concept of "conflict manager". This is how he described one of the functions of the attorney. (See Brutsche, "Mediation Cross-Examined", Business Litigation Newsletter, May, 1989.) The term is more encompassing than "advocate". Without diminishing the advocacy part of our practice, it is helpful for us to see advocacy as only part of our greater responsibility as conflict managers.

Conflict management involves preparation. No able trial lawyer would even dream of going to court unprepared. We have all had those bad dreams where we were in court and were unprepared (arguing to a jury clad only in underwear), only to wake with a start and a feeling of relief coupled with renewed resolve to do the best job of trial preparation possible. The attorney's preparation for a mediation session should involve the same degree of care and intensity that goes into trial preparation. There is simply a different focus.

Preparation for mediation involves addressing the following concerns, none of which is necessarily any more important than the others. None should be neglected.

• Prioritize. Are there major issues, the resolution of which will cause other issues and concerns to fall into place? What is most important to your client? What do you think is most important to the other side?
• Be realistic, and encourage your client to be so. This includes not only a frank discussion with the client concerning his/her case's strengths, but also its weaknesses. Be candid with the mediator in caucus. Do not hesitate to discuss weaknesses with the mediator. Remember, discussions with the mediator are confidential.
• Be flexible, and encourage your client to be so. In mediation, the parties and their attorneys have more leeway in arriving at a solution than does a court, which is limited to legally recognized remedies. Do not ever hesitate to be creative.
• Don't try the case. Guide the client in exploring alternatives, taking into consideration the risk factors. The attorney's focus should be on mediation advocacy. See "B" above and "E3" below.
• Try to determine obstructions to settlement and ways to overcome them.
  1. Is it your client?
     (a) Does he/she have unrealistic expectations?
     (b) Is there a personal vendetta involved?
  2. Is it you?
  3. Is it the opposing party/attorney? How can you assist the mediator in "reaching" the other side?
  4. Remember, in mediation we are not there to try the case. The attorney does not have to convince the mediator of the righteousness of his/her client's cause. Focus on what it will take to find common ground. In a trial, you don't care about common ground. You are trying to reach the jury and/or the judge. In mediation, you are trying to reach the other side.
  5. Do not hesitate to acquaint the mediator ahead of time with your view of potential obstructions and concerns. This can be done in your position paper when you mail the mediator copies of pleadings, etc. If you have suggestions for the mediator on how to approach your client and/or the other party(ies) and attorney(s), communicate those suggestions.

• The professional task of attorneys as PROBLEM SOLVERS and CONFLICT MANAGERS is never more apparent than in mediation.
  1. Litigation is win-lose.
  2. Mediated settlement is win-win. Both sides need to realize that "resolution" is a neutral solution in which winning or losing are immaterial.

• Mediation advocacy
  1. Preparation (there's that word again) includes having enough documentation and discovery up-to-date and in-hand to make informed settlement decisions. Just as no attorney will leave any part of the file back at the office when the case is in trial, the prepared attorney will come to the mediation session just as prepared, with all relevant paperwork in hand.
  2. Is the client prepared to negotiate? Does he/she know why he/she is there? Is the client's grasp of the case realistic enough to enable the client to be a positive factor in the mediation process? If not, then the client will be an impediment. This presents another preparation challenge for the advocate.
  3. Creativity is a hallmark of a good trial lawyer. The same type of creativity should be applied in the mediation setting. Remember, the parties and attorneys are not limited to the law of remedies in structuring a settlement.

• The mediation proceeding
  1. Joint session/opening statements----Consider the tone of your opening statement. Are you going to approach the opening statement the same way you approach the opening statement in a trial? What will the type of aggressiveness demanded by trial advocacy do to encourage settlement? Will an aggressive opening statement help or hinder the mediator in dealing with the other side? Are we in mediation to be adversarial in the litigation sense, or open-minded in an effort to find common ground? Is it possible to make a non-adversarial and non-aggressive opening statement while, at the same time, demonstrating that you are well-prepared? Is it not possible to advocate your client's case in a convincing yet non-threatening way, showing both preparedness and open- mindedness? By taking these rhetorical questions to heart in your opening, perhaps the case can be settled and the settlement reduced to writing in time for us all to be home for supper. Do not handicap the mediator by the tone of your opening statement. Sometimes an aggressive approach may be appropriate. But consider carefully.
  2. Caucuses----Once again, there is no need to try the case. The caucus is the time to be candid with the mediator. Whatever you say is privileged. If your case, which was so promising at first, has started consuming Alpo, acknowledge the fact and let the mediator help deal with it. Anything you do not want the other side to know will be kept confidential. Further, is the client stubborn and unwilling to hear what his/her attorney has been trying to convey concerning weaknesses in the case? If the mediator is an attorney-mediator, a "lawyer to lawyer" talk between the mediator and advocate, with the client listening, will many times cause the client to see what his/her attorney has been trying to convey.
  3. Be prepared to assist the mediator. Feel free to make suggestions. The caucus is the ideal time for the advocate to help the mediator deal with the other side. What do you and/or your client know about the other side and his/her/their particular interests? Be alert to interpersonal dynamics at work in the process and how they can be used to achieve resolution. Do you need help with your client? Does your client need help with you?

• Papering the agreement
  1. Part of the advocate's preparation for the mediation should involve some forethought on what should be included in the written agreement. If there are potential problems even after an agreement has been reached and documented, are there ways to alleviate or prevent such problems with proper language in the written agreement? Giving this some study ahead of time will avoid subsequent problems and expedite the drafting and signing of the agreement itself. For example, the need for confidentiality is many times known ahead of time, regardless of what the agreement is. Or, if the agreement is to involve a payout of some kind, should the debt be secured? If it is to be secured, what asset(s) should be considered for collateral?
  2. Litigation of mediated settlement agreements are basically being treated as any contract litigation; i.e., any alleged breach of such an agreement is tried as a breach of contract. However, keep in mind the possibility of summary treatment where performance of a mediated settlement agreement is brought up in the midst of pending litigation.

The mediation session can be just as intense as a trial, and the attorney who is well-prepared for the mediation is serving the best interest of the client just as much as the well-prepared trial lawyer.