Miscellaneous

Probate Mediation: What Are We Waiting For?

By Anne Skove, Esq.

Probate mediation is up there with glue dots and white popsicles as one of the greatest inventions ever. Yet, it seems about as popular as erasable ink.

Probate cases meet anyone's standard when it comes to "fitting the forum to the fuss." Most ADR folks agree that when the fuss involves family members, emotional issues (as opposed to legal novelty), and no-win stakes, it's time to call a mediator.

Less than a decade ago, when edited a report on court trends, we wanted to include something about probate mediation. Trouble was there were so few cases that the authors of one of the few studies in existence advised us to wait a few years for the trend to catch on.

We're still waiting.

Today at court-o-rama's satellite office (which is cleverly disguised as a coffee shop/chess haven/art gallery) we met a lawyer with a probate practice. She mentioned she was looking to get into another field. The conversation turned to probate mediation. Well, it turns out there isn't any of that going on in these parts. We're just too busy being wooed by various presidential candidates, too hot, or completely distracted by the new giraffe exhibit.

So where are all the probate mediation programs? A quick Google news search using keywords "probate" and "mediation" gleaned a breaking story about a dispute in Tonga, and it goes downhill from there. RSI's sublime Court ADR Research Library pops out a mere 30 titles, many of which predate Y2K.

Demographics suggest that probate mediation should be over the top by now, as popular as Ikea. Dissolution and parenting mediation have taken off like Crocs. Are more people getting divorced than they are dying? Of course not.

Even where programs exist, the cases are not exactly pouring in.

Love and Sterk have a theory: "To date, however, the 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." Love and Sterk "explore the opportunities available to a testator who seeks to be proactive -- to arrange for mediation of estate disputes before they arise." Their reason gets to the heart of mediation: "Well-advised testators might value mediation for multiple reasons, including its potential to preserve family harmony and avoid dissipation of estate assets."

Until estate planners start hyping mediation's benefits, the process will be about as popular as socks with sandals.

See Leaving More Than Money: Mediation Clauses in Estate Planning Documents, Lela P. Love and Stewart E. Sterk, W&L Law Review (2008); Mediation, Probate, and Estate Planning, Michael Moffitt, ADR ProfBlog (June 21, 2008); Lawyers Brace for Flood of Elderly, Leonard Post, National Law Journal (February 1, 2005); and the fine example provided by New Hampshire courts (yay, Peter!): Mediation in the probate Court.

UPDATE: Thanks to Doug, we realized the link to the Love/Sterk article was screwy. Thanks to the W&L Law Review, we found the TOC, which contains a link to the pdf article.

Full post as published by court-o-rama.org on July 22, 2008 (boomark / email).