30 Pages Posted: 29 Feb 2004
Interest in the use of mediation to resolve probate disputes has been growing. As part of the larger trend in American courts to encourage alternative dispute resolution ("ADR"), and following the successful adoption of mediation to resolve divorce and other family disputes, there now exist a number of court-sponsored mediation programs designed to encourage the mediation of probate disputes. Moreover, many jurisdictions are considering adopting their own programs designed to encourage mediation of such disputes.
Despite this trend, the use of mediation for resolving probate disputes has lagged far behind its use in other family matters. Many jurisdictions provide little or no formal opportunity for probate dispute mediation. Even where mediation is offered, judges and practitioners are often skeptical of its value in the realm of trusts and estates. Indeed, mediators themselves note that probate disputes are some of the most difficult to mediate. The following are some of the suggested impediments to the widespread adoption of mediation to resolve probate disputes:
1. Courts are not providing sufficient encouragement;
2. Probate disputes are relatively rare - particularly in comparison to divorce - and, therefore, it is not efficient to establish mediation programs specifically geared towards such disputes;
3. The number of qualified mediators with a good understanding of probate law is insufficient to handle probate disputes;
4. Estate planners already act as informal mediators in probate disputes and resolve many of the resolvable cases. If litigation is threatened, it is because the dispute is unlikely to be susceptible to successful mediation;
5. The probate bar lacks familiarity with mediation and is reluctant to embrace it;
6. The parties are unwilling to bear the costs of mediation;
7. In many probate disputes, at least one party's litigation expenses may be borne by the trust or the estate thereby reducing that party's incentive to settle;
8. The emotional nature of probate disputes makes the parties unwilling to settle through mediation; and
9. Probate disputes are difficult to mediate because the person whose views are most relevant, namely the testator in a will or the settlor of a trust, is dead and not able to participate in the mediation.
In some jurisdictions, courts have attempted to address these concerns directly. For example, to overcome reluctance by the parties to use mediation, some judges require that all disputes go to mediation before they can proceed in court. To reduce the costs of mediation, some court-sponsored programs use volunteer mediators or fund the cost of mediation directly. Finally, to fill the perceived need for mediators who understand the substantive law of wills and trusts, some programs provide mediation training for lawyers practicing in the wills and trusts area, and others provide probate law training to experienced mediators.
This Article examines six court-sponsored programs designed to encourage the use of mediation to resolve probate disputes in five jurisdictions: Texas, Florida, Georgia, California (Los Angeles and San Francisco), and Hawaii. Some of the programs are part of larger state-run programs designed to encourage the mediation of a variety of disputes, but all were studied in terms of their specific application to probate disputes. In discussing each of the programs, this Article focuses on the extent to which courts and practitioners either have addressed or proven false the suggested impediments to the use of mediation in resolving probate disputes.
Part II of this Article provides a general description of mediation. It discusses the role of mediation in our current dispute resolution system and describes the mediation process. Part III then describes the six court-sponsored programs designed to encourage the use of mediation in probate disputes and offers attorney feedback with respect to each program. Finally, Part IV examines common issues that arise in developing court-sponsored programs designed to encourage the use of mediation in probate disputes.
Suggested Citation: Suggested Citation
Madoff, Ray D., Mediating Probate Disputes: A Study of Court Sponsored Programs. Real Property, Probate and Trust Law Journal, Vol. 38, pp. 697-725, Winter 2004. Available at SSRN: https://ssrn.com/abstract=509624