When is the right time to mediate and what are the keys to a successful outcome? I asked lawyer Bette Epstein, who now mediates for ADR Services, to share her thoughts. Bette Epstein, Esq.
Bette grew up in the East Bay. She received a Bachelor’s degree in Psychology from the University of Southern California, a Master’s degree in Counseling from Cal State East Bay, and law degree from USF School of Law. She practiced in the San Francisco Bay Area, working at the law firm of Crosby Heafey Roach and May, which merged with Reed Smith. She is a fellow of the American College of Trusts and Estates Counsel and a co-author of the CEB publication on Capacity and Undue Influence.
Before law school I was a psychotherapist with a private practice and the director of a geriatric counseling program. My practice included working with individuals and families regarding a variety of issues but primarily involving discontent with the relationships in their lives. That experience gave me insight as to many of the struggles people face when they feel they lack control of their circumstances.
In particular, I worked with home-bound seniors who were generally isolated and in need of socialization and resources, and also with families caring for seniors with dementia – this was at a time when there was little understanding of such circumstances and few opportunities for support.
When I attended law school I thought I would practice family law but had the good fortune of being given the opportunity to become a trust and estate litigator, including handling contested conservatorship matters. My education and experience as a psychotherapist gave me great insight as to the issues family members are dealing with in these disputes. I worked as a litigator for 30-plus years before becoming a full-time mediator.
The time to mediate trust and estate disputes is when the parties are prepared to make binding decisions on the day of the mediation and to sign an enforceable agreement reflecting those decisions. That timing can range from nothing yet having been filed with the court, up to just a few weeks before a trial is to begin, or even after trial and before there is an appellate decision.
A key ingredient is having sufficient information on which to base the decisions being made.
Early mediations can work. I recently mediated a matter involving three siblings whose mother made a lifetime transfer of a 90% interest in the family home to just one of them, but did not disclose that transfer during her lifetime. The expectation was that all assets would be shared equally among the three. They came to mediation just a few months after their mother’s passing and prior to the initiation of any litigation. They were able to resolve their differences while maintaining the otherwise cordial relationship among them.
As the mediator, my goal is to end the mediation session with a written agreement reflecting the understanding of the parties. However, the terms of the agreement can vary significantly if, for example, the trust is terminated and assets need to be sold or distributed versus an on-going trust administration, in which case the agreement may reflect how assets will be managed going forward. In addition, with an ongoing trust administration, the parties may want to incorporate a dispute resolution process in the event issues arise in the future that may need to be addressed.
Not every mediation settles on the day of the mediation so in that case it is my practice to follow up with counsel by telephone to continue the settlement discussions. Cases often settle through those follow-up conversations. A case that involved several pieces of real property was resolved through this process after the parties obtained additional information about the respective values and upon further reflection as to the cost and likely outcome if the matter was not resolved.
First, it is essential that the parties have all the information available on which to base their decisions. This may include such things as appraisals or market analyses of real property; accounting back-up information, e.g. bank records and receipts; inventories of personal property; tax advice; and expert opinions as may relate to the interpretation of medical records.
Second, the parties should be advised that a settlement will necessarily involve compromise. Cases don’t settle with a party getting either all they want or nothing. There is almost always some compromise made by all parties.
Lastly, a resolution is more likely if all necessary parties are present in person at the mediation session. Although there are circumstances in which parties may only available by phone or Skype, actively participating in the mediation process in person if at all possible is definitely desirable. And if a party needs a non-party present (e.g., spouse, friend, family member) at the mediation to assist them in making decisions, I generally find that to be useful and not a hindrance to resolution.
Trust and estate disputes most commonly involve siblings or stepparent/stepchild relationships, oftentimes with decades of family history among them. I am a curious person so am always interested in what occurred that resulted in these family members being engaged in the dispute before me.
I also think it important as part of the mediation process that every participant have the opportunity to tell their story – whether or not legally germane to the actual dispute – so I am very patient in hearing their views. I can often gain insight during that process as to what the interests are of the parties and options for how to best address them.
Having litigated many cases, I enjoy the challenge and feel great satisfaction when I can facilitate the process by which the parties come up with their own solutions to their dispute, as opposed to decisions being made by a judge. One of my most rewarding experiences was a case in which I was the third mediator retained by the family to facilitate the parties’ eighth mediation session. I was very pleased to be able to assist them in resolving their long-running dispute.