Wednesday, August 26, 2015

Mediation, Mediators and Mediation Styles in Multnomah County Probate Mediation

The parties to disputes in Multnomah County protective proceedings (guardianships and conservatorships), estate administrations and trust cases are required to go through mediation before they can proceed to a court hearing. The requirement has been in effect for a couple of years now and Multnomah County’s probate judge assures me that it has been a success. A previous post on the Multnomah County mediation program can be found here.

I am approved as a probate mediator by the Multnomah County probate court. I took a forty hour course in mediation at Portland State. I took the shorter course in probate mediation and I did nearly two years of twice-a-month supervised mediation in the Multnomah County small claims department. These credentials qualify me to be on the list of approved probate mediators. I maintain my educational requirement by going to the annual two-day conference of the Oregon Mediation Association. I mediate cases and I represent clients who are having cases mediated by others. Thus, I offer you, dear reader, a brief guide to mediators and mediation styles in Multnomah County probate cases.

The lawyer who is a part time mediator.

This is me. I pay my mortgage being a probate lawyer and do mediation on the side. A lot of lawyers want someone like me to do mediation because, as a lawyer, I understand the law and the requirements of the local courts. If possible, I will move the parties quickly toward an agreement that can easily be turned into a court order.

I was trained in facilitative mediation. In that arm of mediation the mediator is to be non-directive and is there to assist the parties to the mediation in negotiating effectively. In a perfect mediation world, the parties will resolve their differences and leave the room hand in hand to live happily ever after. In this type of mediation, the parties are in the same room and face each other across the table. It is intense and difficult. Most part time lawyer-mediators quickly give up on it and move to the easier separate room/settlement conference style of mediation often used by judges. (More on that below.)

Several Multnomah County probate lawyers have taken the forty hour course and the shorter probate course in order to get work as a mediator. Not so many of them have done the supervised practice required for inclusion on the list of mediators approved by the court, but it is not required that you be on the list to be selected as a mediator. The parties to the dispute can choose any mediator they want. If the person making the choice is a Multnomah County probate lawyer, he or she is likely to prefer someone familiar. That will be another Multnomah County probate lawyer. In my cases, I am more often selected to mediate a case because of who I know rather than what I know.

The knock on lawyer/part-time-mediators is that they can’t take the pressure of same room mediation, all they care about is getting an enforceable judgment, and they manipulate rather than facilitate. For this reason they are mostly absent when the Oregon Mediation has its meetings and probably never finished the regimen of supervised mediation required for inclusion on the approved list of Multnomah County probate mediators. The advantage of having one of these mediators is that the mediation process will be shorter, less stressful, and more likely to result in a solution that is pleasing to the lawyers.

Retired Judges (and lawyers who thought they should have been judges)

In many courts today the parties to the case are required to go to a settlement conference as a condition of going to trial. The settlement conference is conducted by a judge. The lawyers go into chambers and a judge listens to the evidence that may be presented at trial and opines thereafter about what he thinks the outcome will be. With this input, the lawyers are encouraged to have their clients settle the case along the lines of what the judge thinks the ultimate outcome will be. Many judges like this process and, when retired, offer themselves up to help settle case just the way they did it when they were settlement judges. Sometimes, they are not judges, but experienced litigators who have given up the courtroom. In either case the experience is the same.

These mediators do evaluative mediation. They evaluate the strength of each side’s case using their own expertise and advise the parties on a settlement that approximates what might happen in court. They almost always separate the parties into different rooms and move back and forth between rooms nudging the litigants toward an acceptable settlement.

The personality characteristic that make a person want to be a judge, almost completely foreclose that person from doing facilitative mediation. Judge’s want to judge and direct because they believe they know, in the final analysis, the best outcome. These mediators, whether judges or litigators, never belong to the Oregon Mediation Association. They are most comfortable around lawyers and they advertise in the Oregon State Bar Journal. Lawyers like these kinds of mediators because they do something familiar.

The knock on the retired judge is that he is expensive and overly directive. You pay a premium price for the experience the judge brings to the mediation. And like the lawyer/part time mediator, a judge tends to see the solution as a court order that everyone can live with. It is a low bar with a high cost. If you are involved in a high emotion family dispute, you are allowed to set your goals a little higher than this.

Real Mediators

I call them “real mediators” because these folks mediate full time and make their livelihood doing it. They do not do it part time while their real income is from practicing law. They do not do it part time while collecting retirement pay from their career as a judge or a litigator. They mediate and only mediate. They are active in the Oregon Mediation Association and they spend a lot of time on the touchy-feely aspects of mediation. They go to courses on mindfulness.

These are the real facilitative mediators. They do not direct the parties or predict what the outcome may be in court. Instead, they facilitate the litigants in a search for a solution that works for them. It is tough and stressful business in which of the parties to the dispute face each other, say what they have to say, and hear what need to be heard. The theory is that the disputing parties then approach a solution that will be one of their own making and not one based upon a legal framework that has been imposed upon them.

These mediators are idealistic and hopeful. They don’t think much of lawyers and at the OMA conferences tend to belittle the very mindset of lawyers. Those who have practiced law in the past are inclined to introduce themselves as “recovering lawyers.” In mediation they put the parties to the dispute in the same room and expect the lawyers to keep quiet. The lawyers’ job, as they see it, comes at the end and consists of translating the settlement into a form acceptable to the court.

The knock on real mediators is that they fail too often. I don’t mean they fail to get a settlement agreement. Through tenacity alone they tend to get more agreements than the other types of mediators.  Often, however, those agreements are not truly facilitated agreements, but rather the same one you might have gotten from a retired judge or a practicing lawyer. Facilitative mediation can be long and stressful. It is simply not worth it if the result is no better than one could have gotten at a judicial settlement conference.

There are a whole lot of good things about having a real mediator. Being a hopeful guy, I am usually willing to go for the gold. In mediation that means a solution designed by the parties with little, if any, attention paid to the law, lawyers and judges. Mediators are cheap. They charge a lot less than either lawyers or judges and tend to bring far greater mediation skills to the table. Unless, you have a good reason not to, I suggest going with the real thing.


If you are involved in a Multnomah County probate dispute, the chances are you are going to mediation. In my experience, the local lawyers are still not all that comfortable with the requirement. They try to get it waived and if forced to mediate would rather hire a buddy to do the mediation than spend the time finding the best mediator for the case. My suggestion is to give it some serious thought and quiz your lawyer as to what considerations are going into the choice of mediator. If the lawyer is recommending against a “real” full-time mediator, make sure the reasons are clear and that the lawyer is not simply choosing the path that is easiest for the lawyer.

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