The Mediation of Probate Matters – A Different Kind of Conflict (Resolution)

1. The Mediation of Probate Matters – A Different Kind of Conflict (Resolution) Eric. K. Englebardt 17 November 2018

2. It’s a different kind of conflict

3. What makes it different? Emotion Grief Often about much more than money Often more of a civil war than a battle against the enemy

4. SO, WHAT IS MEDIATION? Alternative to litigation that is: • Informal • Friendly (as much as possible) • Confidential • Logical

5. WHAT MAKES IT WORK? A.) Puts the power in the hands of those with the most to gain or lose - Captain their own ship, including solutions that couldn’t happen in court - Gets rid of uncertainty - Their day in court with much less stress - Confidentiality is a huge factor

6. WHAT MAKES IT WORK? B.) Allows for emotional discussions - In private - With a neutral to help assess - With others there to support and talk

7. WHAT MAKES IT WORK? C.) Good communication by counsel - Before Mediation - With the mediator - With the client -At the Mediation -The Two R words

8. FIRST REASONABLE

9. SECOND RESPECT

10. Communication In Mediation Grandma always said…

11. WHAT KEEPS IT FROM WORKING A.) Emotion over actual analysis - Mama loved me more - I took care of him while you never visited - Daddy surely never meant to leave me out or leave you more - Grandma promised me Grandpa’s watch when she died

12. - Uncle Johnny didn’t need your help with his checking account. - Granny was perfectly able to transfer that land to me - I can’t believe you think Daddy needs 24/7 nursing care

13. - You’ve driven that trust into the ground and don’t know what you’re doing - The bank fees are what???? - You’ve paid yourself how much for your work managing this?

14. Ways to make it work anyway A.) Recognize, acknowledge, and validate the emotion - For mediators – extremely important - For practitioners - Talk directly to the party on the other side of the table - but beware of the reaction of clients

15. Ways to make it work B.) Focus on the costs and uncertainty - Financial Costs - Emotional Costs - Fact that in emotional issues like this, very difficult to predict what a fact finder will do. - almost always involves some sort of swearing contest

16. Ways to make it work C.) Point out ability to forge own solutions – - Court’s hands will be tied with solution - In mediation, can think outside the box, find ways to substitute or trade issues of importance that court can’t/won’t do - Airing of private issues/grievances in confidential forum, juxtaposed with the public nature of court

17. Ways to make it work D) The lawyers must - Be willing to change theirstyle case to case and situation to situation Be wary of negative labeling Beware of calling a spade a spade Take a deep breath before they speak – don’t be reactionary

18. Other Problems in Probate Mediation A.) Absent Decision Makers - Takers who aren’t there but are influencing the situation - Must draw them into the process or convince decision maker to - ignore them or - deal with criticism later

19. Other Common Problems in Probate Mediation B.) Client v. Client - Often develops in Probate mediations - Focus on resolution - Find common ground - Causes mediator to do cross- mediation, mediating within one room at times

20. How we do it in SC A.) Not Mandatory as it is in other state courts - all contested matters are eligible - usually done by agreement of parties, though some judges are more aggressive about ordering it - can be done by motion

21. How we do it in SC B.) Choice of mediator - Generally left to the parties - Court can appoint if no agreement - Mediator fee split by parties unless court finds that the mediation “significantly benefited the estate”, which can mean they are paid from the estate

22. How we do it in SC C.) Post mediation - Agreement reduced to writing, signed by parties, counsel - Mediator report to the court within 10 days - If settlement occurred, 30 days to seek approval through consent order or motion if necessary

23. Conclusion • Questions? • Comments? • War Stories?