Probate Mediation: Helping Families Make Good Decisions in Difficult Disputes
Probate disputes can be unusually difficult to resolve. A disagreement ostensibly about money, property, a will, or administration of an estate may also involve decades of family history, perceptions of favoritism, grief, distrust, and competing ideas about what a deceased family member intended.
That combination makes probate cases particularly well suited for thoughtful mediation—but simply scheduling a mediation session does not guarantee a productive process. Good preparation and careful attention to the parties’ decision-making can make a major difference.
The Dispute May Be About More Than the Estate
It is tempting to analyze a probate dispute primarily in terms of legal claims and dollars. Those obviously matter. But parties may care deeply about things that are difficult to put on a balance sheet.
For example, a party may want recognition of years spent caring for a parent. Siblings may have very different memories of promises made by a deceased family member. Someone may feel that another relative received preferential treatment for decades. Family members may worry about preserving—or ending—relationships with each other.
These intangible interests can affect parties’ decisions just as significantly as litigation expenses and predictions about court outcomes.
A useful mediation process therefore considers both tangible and intangible interests. These may include legal fees, delay, privacy, stress, reputation, family relationships, control over the outcome, risk tolerance, opportunity costs, and the desire for closure. An experienced mediation will explore interests such as privacy, stress reduction, preservation of relationships and reputation, risk reduction, opportunity costs, acknowledgment or apology, and closure.
Preparation Should Begin Before the Mediation Session
Much of the most valuable work in probate mediation can occur before everyone enters the mediation room or joins the video conference.
Attorneys can help clients clarify what matters most to them, identify their priorities, understand the relevant law, consider the other parties’ perspectives, and realistically evaluate what might happen if the case continues.
The preparation should go beyond asking, “What number would you accept?”
Parties and attorneys might consider questions such as:
- What outcomes are realistically possible in court?
- How confident are we about the important factual and legal assumptions underlying those predictions?
- How much additional litigation expense is likely?
- How long could the dispute continue?
- What effect will continued litigation have on family relationships, stress, privacy, and the administration of the estate?
- Which interests matter most to the client?
- Are there possible agreements that would address important interests without simply dividing money differently?
Asking these questions emphasize precisely the preparation necessary for a productive mediation: identifying tangible and intangible interests, establishing priorities, assessing possible outcomes if there is no settlement, considering process choices, anticipating counterparts’ perspectives, and planning possible mediation strategies.
Evaluate the Litigation, Not Just the Settlement Offers
Parties need a realistic basis for comparing a proposed agreement with continued litigation.
One useful approach is to evaluate the risk of continued litigation. This is a process for helping people analyze expected court outcomes, tangible costs, and intangible interests of continued litigation. These are combined to develop a “bottom line.” This helps people plan strategy and decide whether to accept an offer or continue negotiating.
That analysis should not be reduced to a confident prediction that someone will “win” or “lose.” Litigation involves uncertainty. A more disciplined assessment examines factual assumptions, legal uncertainties, plausible court outcomes, their probabilities, litigation expenses, and the nonfinancial consequences of continuing the case.
The goal is not mathematical perfection. It is better decision-making.
Look Beyond a Simple Division of Money
Probate mediation also may create opportunities that a court proceeding does not.
Depending on the dispute, parties might consider agreements concerning particular family property, timing or structure of payments, disposition of a residence or family business, confidentiality, administration of the estate, allocation of expenses, future communication, or other matters important to family members.
Some possibilities may have substantial value to one party while imposing relatively little cost on another.
This is one reason mediators and attorneys should resist assuming that every probate mediation eventually must become a sequence of monetary counteroffers. Exploring interests and options first may reveal solutions that the parties would otherwise miss.
The Mediator’s Process Matters
There is no single correct way to conduct every probate mediation.
Some cases may benefit from substantial joint discussion. In others, family dynamics may make private meetings more productive. Some parties want an opportunity to speak directly to relatives; others strongly prefer communication through the mediator and attorneys.
Similarly, parties differ in what they want from a mediator. Some want mediators to focus principally on communication and negotiation. Others may want a mediator, when appropriate and with the parties’ consent, to suggest options, or make proposals.
The important point is to make these choices intentionally rather than automatically.
Before the session, the mediator and attorneys can discuss the participants, family dynamics, important interests, prior negotiations, information needed for informed decisions, potential barriers to agreement, and ways the mediator might be most helpful.
Success Should Be Measured by the Quality of the Process and Decisions
Settlement is often desirable, but it should not be the only measure of a productive probate mediation.
A party may reasonably decide not to settle after carefully considering the available information, risks, costs, interests, and alternatives. Conversely, an agreement reached because a party is exhausted, confused, inadequately prepared, or pressured is hardly an ideal outcome.
A better objective is to help parties become as knowledgeable, confident, and capable as possible in making their own decisions.
Probate mediation can provide an unusually valuable opportunity to do that. With careful preparation, realistic assessment of litigation, attention to tangible and intangible interests, and a process tailored to the particular family and dispute, mediation can help people make deliberate decisions about both the estate and what comes next.
