Advantages and Disadvantages of Mediation in Probate, Trust, and ...

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hearing, while generally not open to the public, involves the exposure of theputatively incapacitated person and other family members to the strain of testifyingin front of strangers about intimate matters. Privacy is an advantage ofmediation that may be of particular importance in cases of this type. 5 Probate,trust, and guardianship matters often involve family secrets and disputes thatare embarrassing to the parties. The confidentiality of a mediation may encouragefamilies to speak more openly and allow the true reasons for the disputesto emerge more quickly. Privacy is particularly important to those partieswho value "not airing the family's dirty laundry" in public. 6Additionally, parties who will continue to live or operate in the same socialor business community may benefit from a "discreet conclusion" to theirproblems. 7Common law does not guarantee privacy or confidentiality in settlementdiscussions. However, it is not uncommon for state statutes to prohibit the introductionof evidence that the parties have tried (unsuccessfully) to reach asettlement. 8 Many state statutes and ADR rules require that mediations andother ADR proceedings be kept confidential. 95. See generally, Susan N. Gary, Mediation and the Elderly: Using Mediation to ResolveProbate Disputes over Guardianship and Inheritance, 32 WAKE FoREsT L. REV. 397, 424 (1997).6. Ms. Schmitz notes that this preference is particularly prevalent among the current generationof senior citizens. Suzanne J. Schmitz, Mediation and the Elderly: What Mediators Need toKnow, MEDIATION Q., Fall 1998, at 71, 74.7. Nadine DeLuca Elder, A Mediation Primer for the Solo or Small Firm Practitioner, 4GA. BJ.. 38 (Dec. 1998).8. See, e.g., IND. R Evo. 408.9. For example, the Indiana ADR rules provide that "ADR processes will be subject to thesame degree of confidentiality as is set out in Evidence Rule 408, supra n. 174," and stateadditionally:Mediators shall not be subject to process requiring the disclosure of any matter discussedduring the mediation, but rather, such matter shall be considered confidential and privilegedin nature. The confidentiality requirement may not be waived by the parties, and anobjection to the obtaining of testimony or physical evidence from mediation may be madeby any party or by the mediators.IND. R. A.D.R. 2.11. The Texas ADR Procedures Act requires that party communications duringADR process be kept confidential and that none of the participants (including the mediator/facilitator) may be called upon to testify in court concerning the ADR proceeding. TEx. Civ.PRAC. & REM. CODE ANN. § 154.073 (West 1997). Hawaii's rules provide:The mediator shall not communicate any matters discussed at the conference to any court.Likewise, parties and attorneys are pro-hibited from informing the court of discussions oractions taken at the mediation. This rule does not require the exclusion of any evi-denceotherwise discoverable merely because it was presented in the course of the mediation.This rule also does not require exclusion of evidence that is offered for another purposesuch as proving bias or prejudice of a witness, negating a contention of undue delay, orproving an effort to obstruct a criminal investigation or prosecution.HAW. R PROB. 2.1, App. A. RULE 7
[Vol. 1: 241, 2001]PEPPERDINE DISPUTE RESOLUTION LAW JOURNALSpecial problems of confidentiality may arise in a mediation if one ormore parties is represented by a guardian ad litem. In many probate or trustcases, a guardian ad litem is appointed to represent parties who are unborn orunknown.' 0 Additionally, guardianship statutes in many states require or encouragethe appointment of a guardian ad litem in place of or in addition tothe appointment of an attorney to represent the interests of the proposedward." The court appoints the guardian ad litem, who is thus often obligatedto report back to the court on the progress of the case.' 2 Thus, although themediation may take place in a private setting (which is advantageous in andof itself), the confidentiality requirement may not offer the same protectionshere that it does in cases that do not include a guardian ad litem.B. Dealing with Emotional Aspects of CasesBoth the confidentiality and informal nature of mediation give the partiesthe opportunity to deal with the emotional issues of a case.' 3 Disputes in thecontext of probate, trust, or guardianship law may result in the tangible manifestationof long-standing family problems (e.g., sibling rivalry, perceived favoritism,jealousy over or disapproval of a marriage or other relationship)."Parties in these cases may sometimes seek no more than an "emotional" resuit-an apology perhaps, or an opportunity to vent anger over a situationthey perceive as unfair.In the context of a guardianship, emotions such as fear, jealousy andgreed may underlie the legal dynamic. A dispute over who should serve asguardian may reflect deeply entrenched emotional issues. For example, questionsover which child should be an elderly parent's guardian may maskdeeper suspicions as to who should have easy access to the parent, and thusan opportunity to garner his or her favor. This emotional dimension couldmake mediation in such cases much more challenging than in "stranger vs.stranger" cases. On the other hand, it is this dimension that requires an alternativeto a court hearing. The judge in a guardianship hearing is relatively10. See, e.g., GA. CODE AN. § 53-11-2 (fichie 1997). which requires the appointment ofa guardian for parties in a probate case who are not sui jurs, are unborn, or unknown.11. See, e.g., ID'. CODE ANN. § 29-3-2-3 (Michie Supp. 1997).12. See Schmitz, supra note 6, at 78.13. See generally, Gary, supra note 5, at 426-27; see also, Brian C. Hewitt. Probate Mediation:A Means to an End, 40 Rss GEsrA., 41 (1996).14. See Gary, supra note 5, at 426-27.
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