It’s been said that estate mediation is like divorce mediation on steroids. Having experience at both, we concur. Although both are extremely emotional and personal for the parties, there are a couple of aspects that set estate mediation apart. Fortunately, there also are measures, identified below, for “special handling.”
The Process and Its Impact
In divorce mediation—and by “divorce” in this context we include unmarried couples as well as married ones—there are specific decisional goals the couples must achieve. Some decisions, such as who moves out and who gets the dog, they will have considered. Others, such as how they will divide retirement savings and who will get the kids to school in the morning, they probably won’t have considered in sufficient detail. Either way, no matter how heated or painful the discussion becomes, the mediator will be able to use these decisional goals as a means to keep the couple relatively focused and the discussion more or less on track.
By contrast, in estate mediation these focal points don’t exist. The court will have its goals, of course: An administrator must be appointed for the estate of someone who died without a will, or an accounting must be rendered by someone holding estate or trust funds, or a 17A guardian must be appointed for an alleged incapacitated individual. But that isn’t what the family members want to discuss. They want to talk about what happened at the funeral, or who took better care of Dad, or who was the favored child, or who has more effective parenting styles.
Oddly enough, it is the resolution of these seemingly peripheral issues that can lead to the resolution of the legal ones. In one dispute over who should be appointed as administrator, the discussion digressed into an argument over whether a particular family member should be given access to the decedent’s apartment, where another family member was living, to recover certain personal effects. By keeping the disputants focused on the specifics of granting access, and away from the more personal issues that were causing the family schism, the mediators were able to produce an agreement, which was incorporated into a written Stipulation. Ultimately this family, which had split into two warring factions, was able to agree on the appointment of one individual from each side to serve together as administrators of the estate. The Stipulation about access, being an integral part of the agreement in this case, became part of the court file.
The mediators subsequently learned that, when the Surrogate and law clerk later examined the Stipulation, they were surprised to see that it did not include the parties’ agreement about the legal matter at hand, that is, the appointment of administrators for the estate. This serves as a classic example of the utility of mediation as a means of dispute resolution. The court had no authority, in the context of the pending proceeding, to order the individual who was living in the decedent’s apartment to grant access to the individual seeking it. And yet the resolution of the access issue, among others also not before the court, allowed the legal proceeding—and the estate administration itself—to move forward.
This case also serves as an example of a basic tenet of mediation generally, which is that self-determination makes for better follow-through. An individual who has participated in the decision-making process is far more likely to adhere to the resulting decision than one who has had that decision forced upon him or her. Moreover, the participants are in the best position to know what solution will work best for them: in this case, when would be a mutually convenient date and time for the apartment access to take place.
Another advantage of the mediation process in the context of estate disputes is the relative facility and efficiency with which information can be exchanged, without resort to a discovery proceeding. One issue that arose repeatedly in the context of a compulsory accounting proceeding was the parties’ anger at each other for postings that appeared in the media and on social media. The mediators spent a good portion of one mediation session guiding a discussion between the parties about the postings. Having a safe place in which to converse, and an attentive listening audience, allowed each party to explain exactly what he or she was and was not responsible for. Thus each learned that the postings he or she found most upsetting or offensive had little, if anything, to do with the other party at all. While the exchange did not establish mutual trust, it did establish mutual credibility. This, in turn, led to calmer and more productive discussions of other matters.
In another case, the mediation process helped the parties realize that the best resolution of the case would be to have the Surrogate decide on the petition. Still, the parties left the mediation with meaningful non-binding agreements that detailed the steps for effective communication and for how to handle minor decision making and time spent with their adult developmentally disabled child.
Ultimately, mediation provides the parties in Surrogate’s Court the opportunity to be heard, the chance to gain clarity on the issues important to them and the room to make choices on how they will move forward with their conflict. Even in situations in which the underlying conflict has not been resolved, being heard, and being able to hear the other party’s position—even if not agreed with—is an accomplishment. This would not be possible in a judicial proceeding.
Helpful Tools Used by Mediators in Surrogate’s Court Cases
Co-Mediation Model Approach. Estate disputes often involve several parties. In addition to a spouse, a deceased individual may leave behind children of more than one marriage, out of wedlock children, individuals whose status as children is in question, or even frozen embryos. One or more of these children might be minors or otherwise legally incapacitated. The dispute may include parents, step-parents, unwed partners, siblings, grandchildren, and so on. The list is endless. Add to that the lawyers representing these parties, and other outside support persons and the list becomes even longer. There is a much better balance in the room when there are two mediators to help guide the discussion.
Co-mediation also is beneficial because these cases tend to be emotionally driven. It is helpful to have one mediator acknowledge feelings while the other focuses on helping the parties move forward. For example, even in a mediation that was not completely resolved, we heard one party express willingness to develop a relationship with the other party. One mediator repeated the invitation, thus reinforcing it, while the other ensured that the second party heard the invitation, and asked whether that party wanted to proceed differently, based on this new information.
These mediations can be exhausting for the mediators. Often one is swept into the family drama. Each party is convinced that his or her version of reality is correct, and the emotional underpinnings usually run back to childhood and are deeply embedded. Consequently, one hears years of grievances, often more than once. Moving the conversation forward while simultaneously acknowledging each party’s individual experience is challenging. Having another mediator helps each party feel doubly heard, and gives the fellow mediator some breathing room.
These cases are complicated and take time. Having a co-mediator is invaluable between sessions as they can debrief, assess what they have heard and where the parties stand, and discuss strategy for moving forward. Collaboration also enables the mediators to use their collective experience in managing the requisites of a multi-party mediation.
Conducting a Pre-Mediation Session. Cases mediated in Surrogate’s Court involve highly emotional issues that are unique to each family’s dynamics. The mediators are faced with the daunting task of addressing multiple layers of feeling—lack of trust, jealousy, rivalry—in the context of grief stemming from the death of a loved one. These deep and sometimes volatile emotions create significant tensions. It is helpful for a mediator to become acquainted with the particular dynamics of the family involved, and to consider how that relates to the matter at hand, before embarking on mediation.
As mediators, we have learned that it is crucial to establish trust and to avoid perception of bias with each participant early in the process. A pre-session with each party provides the mediators with uninterrupted time to connect with the party and understand his or her perspective of the conflict and his or her specific underlying needs and interests. It also is an opportunity to share goals and expectations of the process.
Procedural Matters. From the beginning, everyone agreed it was helpful to have the Surrogate hold an introductory conference or conference call. This provided a way to introduce the parties, the mediators, and the attorneys and other support persons where applicable, under the formal auspices of the court. At the same time, the Surrogate made it clear that the court would not be privy to the contents of the mediation discussions, except to the extent they were formalized in a written Stipulation. The Surrogate also took this opportunity to explain why she believed the case was appropriate for mediation, and to encourage the family to take advantage of the process.
It became apparent early on that both the parties and the mediators should be prepared to hold multiple sessions, and that the mediators in particular should consider whether to impose time limits on the session. Additionally, the mediators found it helpful to have a preparatory meeting with the court, to become familiar with the procedural background of the case, and with the names of the parties, their attorneys or other support persons, and their relationships to each other.
Families are complex systems. Mediation allows the parties to address emotional and inter-relational matters that cannot be addressed in the courtroom, but that might otherwise impede the settlement process. Providing a forum in which parties can feel heard, instead of having “to prove,” may allow them to move past these obstacles, leading to a more expedient and efficient resolution.
Leslie J. Wilsher is a solo practitioner with over 35 years of experience in the area of trusts and estates, and is a volunteer mediator with the New York Peace Institute. Hope Brock Winthrop has been mediating for over 25 years and is an adjunct professor of mediation at Cardozo Law School. JoAn Pangilinan-Taylor is the associate director of programs at the New York Peace Institute and co-founder of Orchard Mediation.