Wednesday, January 27, 2010

Mediation Comes to Multnomah County Probate

Alternative Dispute Resolution--mediation and arbitration--has been used by the courts in Oregon to help resolve civil cases for a long time. If you sued somebody, you didn't get at trial before a judge or jury unless you first went through arbitration or mediation. That was everywhere except in the probate courts. As of February in Multnomah County that changes.

The new local court rules now provide that the judge or any attorney in the case may put a contested matter into mediation. The new rules set out the general procedure for mediation and who may serve as a mediator.

While lawyers outside of the probate world are comfortable in mediation, we who practice in Oregon elder law have not embraced mediation eagerly. I have attempted to talk other lawyers in disputed elder law cases to hire an elder law mediator (such as Pat Medford) but have had minimal success. One of the problems I faced in convincing other lawyers to embrace mediation is that court time in probate is not that hard to get. The probate world has no jury trials. Most issues can be heard and decided in a few hours. Mediation, on the other hand, can be a lengthy process. It often entails more than one meeting, any one of which can last several hours. Mediation, I believe, leads to better results; it does not however, in probate, necessarily lead to cheaper results.

I have know for some time that this was coming. In preparation, I took a course in mediation put on by the Multnomah County Court system and then a longer mediation course taught by Stan Sitnik at Portland State University Department of Conflict Resolution.

Stan's course completely changed my views on several subjects. Two of them are important.

First, I misunderstood mediation. I thought of mediation as being something like a judicial settlement conference where the mediator would listen to both sides, offer suggestions for settlement, and opine on the value of each side's argument from the vantage point of someone who had been doing probate law since Cain killed Abel. This kind of "evaluative" mediation does exist, but it is not exactly in the forefront of current practice. Mediation being currently practiced is a process whereby the mediator steers the parties toward effectively negotiating a resolution themselves. The parties--not the wise mediator--create the solution.

In my class, one young woman opined that she did not think she could be a mediator, because in the role playing she could clearly see how the parties should resolve their differences. She was unable to keep quiet about her solution while the parties struggled to arrive at an obviously inferior answer. Stan suggested she get over it.

Second, before attending Stan's course I thought I was a reasonably competent negotiator when it came to settling cases. In fact, I sucked. My idea of negotiation was to try to get the other side to take a position; I would take a position somewhere away from that and then we would grimly compromise toward a middle. It is a lousy technique that lacks intelligence, stifles creativity, and makes people mad at each other. I am still fairly embarrassed that for so long I went to work every day to deal with conflict resolution and had so little understanding of how to effectively negotiate. Mediation helps people become effective negotiators for those own interests. Those who deal with conflict a lot owe it to themselves to develop negotiation skills on their own.

I am currently a quiet member of the Oregon Mediation Association. One section in the association deals with elder mediation. I suspect that as mediation begins to play a greater role in probate litigation, those elder law mediators will see a lot more work. How this will work out for litigants remains to be seen.


  1. Thanks for putting it out there with some candid talk about mediation in probate matters. I wish you had said that mediation is (of course) much less expensive than litigation! However, here's another way to look at it: it genuinely provides a better result. In a court case, the parties are stuck with whatever an outsider decides and generally based purely on legal considerations. In mediation, parties have opportunity to craft carefully tailored solutions to complex problems, resulting in the possibility of true win-win solutions, preserving family relations, and achieving agreements that people actually buy into so that future enforcement actions and sour feelings are less likely. I'm enclosing a link to my own blog post on Elder Mediation, please feel free to comment as I'd love any feedback as well!

  2. I suspect that as mediation begins to play a greater role in probate litigation, those elder law mediators will see a lot more work. How this will work out for litigants remains to be seen.