I am now an approved Probate Mediator for Multnomah County probate disputes. I started the process well over a year ago when I took the two-day probate mediation course sponsored by the Multnomah County Probate Department. That summer I took the basic mediation training from Stan Sitnik, professor in the dispute resolution department of Portland State University. Over the past few months I got practical experience in the Multnomah Small Claims Mediation program where experienced mediators held my hand and did what they could to impart to me the lessons they had learned over the years. The process has opened my eyes to new ways to looking at dispute resolution and made me reevaluate my own approach to negotiation and settlement.
I often refer to my probate practice as family law at the other end of life. In traditional family law parents fight over the custody of the kids. In my probate practice the kids fight over the custody of their parents. Emotions run high in my cases. Sometimes the cases are driven by a real legal dispute. In others, however, the law is clear, and the case is driven by sibling rivalries and family resentments that have festered for years. Litigation offers a solution--albeit one imposed on the family by a person in black robes. Mediation offers healing.
I recently spent a morning in a mediation in which six siblings faced the problem of how to care for an aging father. They brought with them decades of hurt feelings, suspicion, and festering resentments. I watched as a skilled mediator helped the group find a solution that worked for all of them and actually brought them together. It was not what a court would have ordered. It was a solution designed by the people who would have to live with it. My bet is that it will work better than any solution a court would have or could have fashioned.
Some lawyers are embracing mediation. Some are looking for any way possible to avoid it. The bulk of them, however, are supportive but confused. The procedures are new and kinks have to be worked out. We know that disputes in guardianships, conservatorships, and probates must go to mediation before they will be heard by the court. The confusion centers around when mediation notices must go out, what the notices must contain, how to choose the mediator, and how to schedule the mediation. These are not insurmountable issues but we lawyers--having gone to so much college to get to where we are--dislike learning new stuff. We will get over it and in five years mediation will be as accepted in probate as it now is in family law.
So here is mediation in a nutshell. If your lawyer files a paper that creates a dispute-- usually an objection to something another lawyer filed--then the dispute must go to mediation. The party who created the dispute must provide the other side with the names of acceptable mediators. The other side can object to mediation, accept one of the proposed mediators, or propose its own list of acceptable mediators. If the parties cannot agree on a mediator, the court will appoint one. The parties can pick any person they want (with some exceptions), but the court must pick from the list of court-approved mediators. I am on that list.
Once a mediator is selected the parties must mediate for at least three hours. If an agreement is reached the mediator will write it up. The parties then have seven days to repudiate the agreement. If no one repudiates, the agreement is rewritten as a judgment by the lawyers and presented to the court. If the parties do not reach agreement, or if one of them repudiates the agreement, the case goes to court.
My take on it is that if your lawyer says you have been ordered to mediation, celebrate. You have a chance to do something good. Good things do come from the court; just not as often.
Thanks for your great article discussing your postive experiences with Elder Mediation. Our courts have mandatory mediation of probate disputes in several counties in South Carolina, as well. Like you, I find that attorneys are often a bit skeptical but then become "sold" as they see the results of mediation. I do believe, however, that the skill of the mediator is crucial, particularly when dealing with complex issues and deep sibling dynamics. As your article points out, mediation keeps matters within the control of the family rather than having an imperfect solution imposed by an outsider. I only wish families would consider mediation first, before they've gotten so angry and antagonistic that lines are drawn in the sand and money has been poured into litigation! I use the illustration with my clients that the paradigm of court is like a battle: two parties hire gladiators to engage in litigation and then an outsider decides who "wins" and who "loses". One problem is that the outsider also has only a limited set of remedies that can be ordered. Another problem is that once we start building walls and offenses instead of bridges, it makes peaceful resolution so much harder. Mediation is an entirely different paradigm. Rather than doing battle against each other, people in mediation explore ways to meet common interests and concerns, recognizing that the problem is not necessarily the "other side," per se, but how to balance our competing interests and meet as many of our most important needs as we can. So, they do "battle" against the problem that's causing conflict, not against each other. For instance, perhaps child A's pressing concern is for safety but child B lives out of state and is unaware of how much Mom has slipped recently. Communication, and uncovering common interests, can go a long way to resolve conflict. But even in cases where parties are feeling very angry and combative, a mediated result is usually going to be more practical -- and a LOT less expensive -- than a litigated outcome. Great post! :-)ReplyDelete