May issue of CITATIONS - Ventura County Bar Association

MAY 2011 • CITATIONS 11MEDIATING PROBATE, TRUST & CONSERVATORSHIP DISPUTES:NEW APPROACHES TO OLD CHALLENGESBy Matthew P. GuascoProbate, trust and conservatorship disputesare challenging to successfully mediate. Thisarticle examines some of the techniques today’smediators use to help resolve these high-conflictdisputes.Pre-Mediation PreparationThe mediator’s pre-mediation preparation inprobate, trust and conservatorship disputesshould involve the following:(1) receiving and reviewing briefs concerning thenature of the dispute and the parties’ respectivelegal and settlement positions;(2) contacting the attorneys and anyunrepresented parties to gain more insightinto the conflict and information necessary tocrafting the mediation process;(3) reviewing petitions, oppositions, accountings,health care provider reports and declarations,and other information essential to betterunderstanding the perspectives of the parties.This preparation can reveal informationinvaluable to shaping a successful mediationprocess, including: the history and currentstatus of the relationships, if any, between theparties; issues of capacity; the parties’ tolerancefor face-to-face communication; whether themediation should begin in a joint session or inprivate session; the history of any settlementnegotiation; who made the last move in thenegotiation; who should make the first moveat the mediation; the material issues uponwhich the parties agree in principle; those issuesupon which agreement has proven elusive; thepersonalities of the participants; who the keydecision-makers are; what flashpoints to avoid;whether the participants previously enjoyed agood or bad relationship; any accounting issues;any fiduciary duty issues; care and placementissues concerning conservatees; court and trusteeapproval issues; and the participants’ objectivesand goals for the mediation.Effective Use of Joint SessionsSome mediations benefit from the mediator’s useof the private caucus/shuttle diplomacy modelof transmitting offers from one room to theother. This model has its virtues: It minimizesposturing and adversarial conflict between theattorneys; it makes competitive negotiatingeasier; it gives the mediator the opportunity toprivately challenge the participants’ unrealisticexpectations; it permits the parties to vent andshare their interests in a safe environment; andit gives the mediator control over the process.This approach to mediation, however, does notwork well with probate, trust and conservatorshipdisputes. Nearly all such disputes involve familyrelationships. Often, these relationships areongoing no matter how dysfunctional theyare. A completely private caucus approach tomediation may deal well with the legal andmoney issues to be negotiated, but it does notaddress the underlying emotions driving theconflict or the effect of that conflict on theparties’ ongoing relationships. Those emotionsfind a way of influencing the negotiation nomatter how vigorously the mediator and thelawyers may want to avoid them. If they areignored and not managed well, these emotionsscuttle settlements.Much of the emotional energy in probate, trustand conservatorship mediations can be ventedby the mediator meeting privately with thegroups of clients and attorneys, but not all ofit. Two adult children of the conservatee mayharbor very negative views of each other whichimpede their cooperation in caring for theirparent. There may be resentments which havefestered through avoidance. These two partiesmay want resolution of these feelings, includingacknowledgment or reassurance from each other,accountability, or an apology. They may look tothe mediation for that payoff. A private caucusmodel cannot give it to them.Instead, the two siblings may meet in jointsession with the intervention and assistanceof the mediator and in the presence of theircounsel. This meeting may get heated anddifficult. But it may need to occur in orderfor both parties to feel heard, vindicated, orreassured. This may need to play itself out beforethe siblings can move to rational negotiation oftheir differences. A mediator with the trainingand experience to help the parties through sucha joint session brings them closer to a negotiatedagreement by which they will both abide.There are, however, some simple rules mediatorsshould follow when conducting joint sessions:don’t spring them on the participants the dayof the mediation, prepare the participants aheadof time; don’t do them unless the participants,including all attorneys, are comfortable withthem; have a specific objective to be served bythe joint session and stick to it; do not signal,directly or indirectly, that one party’s position isstronger than another’s during the joint session;identify and enforce the ground rules (e.g., nointerrupting, polite and constructive language,no abusive language or behavior, the mediatorwill step in as needed to keep the process ontrack, the mediator will end the joint sessionin his or her judgment if needed); keep theparticipants focused on the ultimate goals andobjectives of the mediation; identify issuesupon which the parties agree and those uponwhich agreement has yet to be achieved; remindthe parties that conflict is normal and can bemanaged by them in a constructive way in orderto achieve resolution of the dispute; and alwaysend the joint session on a productive note.Participation of Non-DisputantsOften, probate, trust and conservatorshipdisputes involve a variety of complex issuesrequiring expert guidance, including thatpertinent to accounting, tax, financial,placement, and medical issues. Increasingly,mediators ask that accountants, professionalfiduciaries, investment advisors, guardians,and physicians be available either in personor by telephone to provide the participantswith information necessary to make informeddecisions during the mediation. This caneliminate disputes and provide the parties withinformation necessary to resolution.These are only some of the techniques mediatorsuse to help resolve today’s probate, trust andconservatorship disputes. They may not bespace-age, but they are effective departures fromthe old-style settlement conference approach.Matthew P. Guasco, apast president of the VenturaCounty Bar Associationand former civil trialand appellate attorney,is a full-time mediatorand arbitrator exclusivelywith Judicate West. Hehas extensive experience litigating and mediatingprobate, trust and conservatorship disputes.