Professors Lela Love and Stewart Sterk of Cardozo Law School have written a paper which addresses the use of mediation clauses in estate planning. The highlights are as follows:
- In recent years, a number of states have developed mediation programs for resolution of probate disputes. Measured by surveys of participant satisfaction, these programs have been successful. To date, however, use of mediation in probate disputes has largely been reactive; once a dispute arises, courts offer mediation as an alternative, or, in some states, require the parties to try mediation. Mediation clauses in a will may not be advisable in all cases (a decedent who wants to maintain firm control; a bully or wimp among the beneficiaries)
- In the context of disputes connected to wills, where family members are disputing in the shadow of a
traumatic event—the death of a loved one—and where the long-term relationships of family members are being reconfigured in light of the death, the relationship benefit of mediation may be particularly important.
- In the Probate Mediation Program in the District of Columbia Superior Court statistics for the month of October, 2006, indicate that parties are “satisfied” or “very satisfied” with the process in 80% of the cases, with the outcome of mediation in 73% of cases, and with the neutral’s performance in 86% of the cases. In a New Hampshire survey of parties and attorneys involved in probate mediation, 94% of respondents agreed or strongly agreed that the mediator was able to facilitate discussion successfully; 86% agreed that the mediator helped explore different options to resolve the dispute; 80% agreed that mediation saved time and/or money; and 97% reported overall satisfaction with the mediation process.
- In the Fulton County Probate Court in Atlanta, Georgia, one of the pioneering courts in mediating
probate disputes, the settlement rate is approximately 65%.
- Why mediate a probate case? (Enforce testator’s wishes; maximize value of assets passed on to beneficiaries; preservation of family privacy; preservation of family harmony)
There are many reasons why wills are contested from validity to undue influence to capacity to enter into a will to unclear wishes of the testator. Family disputes ruin relationships. The decedent may not be aware of family rifts at the time the will is drafted. These family rifts may have their causes in the childhood eras of the beneficiaries. Mediation can help heal these family rifts. And it can be helpful during any phase of the estate planning process — pre-drafting, pre-death, post-death as well as during the probate process.
If you would like to discuss how mediation can help you and your family, please feel free to contact me.