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

limited in terms of possible result. More importantly, the courtroom is not theappropriate arena for the airing and potential resolution of the underlyingemotional issues.'"The emotional context should be considered when planning the timing ofa mediation. Typically, early mediation is recommended.' 6 However, the partiesto a will contest may still be in the process of grieving over the loss of afamily member.' 7 Similarly, the parties in a guardianship case may still beconfronting the shock of the visible decline in capacity of a loved one. Thestrong emotions surrounding a death or pending disability may well hamperthe parties' ability to think clearly, either in the context of litigation or ofmediation. 8C. Preservation of RelationshipsPreservation of the family and other ongoing relationships is another advantageto mediation.' 915. Professor Gary writes that another benefit of using mediation in guardianship hearingis that it "gives the older adult a voice," thus "the older adult will benefit from the chance tohear and be heard." Id. at 426. She also notes, "The litigation process itself can be traumatic.The process creates stress and anxiety for the participants-even more so when the opponent is afamily member. In litigation, even the winner may feel that she has lost." Id. at 428.16. See Faryl S. Moss, Mediating Fiduciary Disputes, app. A at A-4 (1998) (unpublishedmanuscript, on file with author). Moss describes the advantagesof early mediation as follows:Disputes are usually more likely to be settled through mediation when mediation is recommendedearly. For example, when a dispute arises between a fiduciary and a beneficiaryinvolving interpretation of the trust agreement, there is a high probability of success ifthe parties attempt to have their disagreement mediated before a lawsuit is filed. The partiesshould be able to compromise before either side becomes too inflexible in the "rightness"of their position.Id.Even though early mediation is recommended as a time and money-saver, Moss points outthat it can also be quite successful when litigation has run for such a protracted period of timethat the parties have become frustrated. Also, she notes that a second mediation may be successfuleven if an earlier one was not. Finally, a mediation, even if unsuccessful, may serve a benefitby facilitating the collection of information in a way far less costly and time-consuming than formaldiscovery. See id. at A-5.17. Professor Gary states "grief may be a factor in the dispute itself, since the desire toblame someone for the death of a loved one may lead to a lawsuit." Gary, supra note 5, at 432.She continues that anger is "a common by-product of grief" that may be "redirect(ed] towardfamily members and friends of the decedent." Id. at 399, n.6.18. See id. at 421. "If the mediation process is commenced too early in [the grieving process,the parties may be ill-equipped emotionally to make rational decisions that will permit settlementof the controversy." Hewitt, supra note 13, at 41.19. See generally, Gary, supra note 5, at 428.244