Practical Suggestions From the Trenches for Trusts and Estates Mediations
By Jeffrey N. Thom, Q.C., and edited by Amanpreet Sran
In this article, the author discusses the suitability of mediation as a very effective dispute resolution tool in litigation involving wills, trusts and estates. Mediation can resolve even the most emotion-filled disputes. The author provides practical suggestions from his decades of experience on topics which include the versatility of mediation, factors to consider when choosing a mediator, client preparation for mediation, and the role at mediation of legal counsel.
I recently completed a marathon multi-day mediation of a lawsuit among family members involved in closely held corporations, where the patriarch had become incapacitated and was now represented by my client under a power of attorney. In that mediation, all parties involved in the family dynamic were involved, some to a greater or lesser degree, in many diverse issues that had arisen over many years. That complex mediation reminded me again that alternative dispute resolution, including mediation, arbitration, and med-arb (collectively “ADR”) can be used in virtually any dispute to obtain a quicker and more flexible resolution than what might be achievable in a more formal Court context.
How I became an ADR Advocate
My initial introduction to ADR was in the 1990s while I was practicing in British Columbia, and those experiences as counsel at many mediations convinced me that the ADR process was valuable in resolving all sorts of disputes. I then became an ADR convert, took mediation and arbitration training, and have in the last two-plus decades used ADR as often as possible in my legal practice, which includes a large component of litigation involving trusts, estates, powers of attorney, and fiduciary matters.
Versatility of Mediation
Trusts and estates litigation is usually full of emotion – it is not (only) about the money. I like to tell folks that in my experience there are only three types of disputes where a client will spend their last nickel on a lawyer – one is criminal law (to stay out of jail), the second is divorce (because it is worth it to get rid of him/her), and the third is estate litigation. The ADR process is well-suited to resolve such disputes, as it has an interest-based approach which is absent from more structured and rules-based litigation.
An example is one of my first estate litigation cases in B.C. The father had died, and I represented the son and daughter from the first marriage against the second wife. We agreed to mediate shortly before the trial over the disposition of the father’s estate. When I walked into the mediation, the wife asked my client, the son, “do you know the last thing that your dad said to me before he died?”. My client was somewhat taken aback (my clients did not get along with the wife as step-mom) and answered “No, what?”. The wife’s next statement was “That he never really loved you”. Yes, that was how the mediation started. And the mediator managed to settle that case (although she immediately moved the parties into breakout rooms and did a shuttle mediation, for obvious reasons).
Choosing a Mediator
There are several components to choosing a mediator. Ideally, I want a mediator who (1) has formal mediation training; (2) has past experience, preferably extensive, in conducting mediations; (3) has legal expertise in the subject matter involved in the dispute; (4) is familiar to me so I have had past experience with their style of mediation (factors such as being more evaluative or more facilitative) in order to assess if that style is well-suited for this particular dispute; and (5) will be an acceptable choice to the other counsel to the dispute. It is rarely possible to obtain all five. My job as counsel is to critically assess the current dispute to be mediated, and then decide (from a roster of the available mediators) which one satisfies the most important of those five factors in this particular dispute.
Generally, while I prefer to have a mediator who knows the fine points of law involved in the particular dispute, my experience is that it is far more important to have a mediator trained and experienced in the mediation process, to be able to navigate the emotional land-mines placed there by positional parties. My choice of a style of mediator is usually guided by whether I think that the opposing party (counsel and client) needs an evaluative mediator who will be seen as authoritative in the law and thus be able to guide them to review and revise illogical positions, or rather a facilitative mediator who will take a softer approach to shaping settlement positions.
Client Preparation for Mediation
Counsel should take steps to properly prepare clients for mediation. In my ADR training, I learned about BATNA (best alternative to a negotiated agreement) and WATNA (worst alternative to a negotiated agreement). Essentially, going into the mediation your client needs to know their upside and their downside, in the event of no mediation settlement. That clarifies at the beginning just what concessions and considerations need to be kept in mind by the client during the mediation process. At the end of a long and grueling mediation day (or days, as in my most recent three-day marathon) it is a useful reference for whether the proposed mediated agreement is neither giving away too much (just to get it over) nor being too inflexible (where a little bit more compromise might push the mediation into a settlement).
The client preparation must consider not only the legal position, but also the effects of continuing with litigation, including the non-monetary factors of further delay in resolution and how it will affect the client’s personal life. There is also a potential benefit to mediation (not available in litigation) to rebuild fractured family and personal relationships, which is especially compelling in some (perhaps most) wills, trusts and estates disputes.
Role of Counsel
I find that it is best if I mostly stay out of the way during mediation. If I have properly prepared my client for mediation, it is for my client (not me) to decide whether he/she wishes to settle. I am present at the mediation to advise my client on the legal issues/exposure, and if necessary to try to help the mediator with supplying facts and legal arguments which would convince the other side to recognize their downside. However, it is my client who needs this dispute to resolve (or not) and to decide the terms on which they are comfortable doing so. I can assist my client by reminding them that a settlement where nobody is happy, is most often the only settlement which is possible.
Jeffrey Thom Q.C. is licensed to practice law in the provinces of Alberta and British Columbia, and is now provisionally licensed in the State of California. His 42 year legal practice has been devoted to litigation, with his current focus being dispute resolution in the areas of wills, trusts, estates, fiduciary and business disputes.
Amanpreet Sran is an associate in the Wills, Trusts & Estates group of McLeod Law where she assists clients with contentious estate issues. She works closely with senior estate litigation lawyers in their team, to ensure clients are well served.
