Mediation in Probate and Trust Matters:  A Far Better Approach

As any lawyer who has handled probate and trust litigation knows, the emotional turmoil destroys families, the disputes become intractable, and the assets at issue are often substantially eroded, if not exhausted.  Mediation is a far better alternative, and the earlier it is commenced, the greater the likelihood that a solution can be reached without causing irremediable damage.

The formality of a contested judicial proceeding inhibits frank and non-adversarial communications.  This exacerbates the family problems that are typically at the root of the underlying dispute, whether it be jealousy, rivalry, favoritism, or disapproval.  And the longer the dispute festers, the more suspicion is aroused, positions harden, and legal fees mount.

Mediation offers an early opportunity for parties to identify and discuss the underlying issues.  The mediation provides a controlled forum in which the emotional factors in the case can be managed.  Although not a decision maker, the mediator is a third-party neutral who will not only hear and consider what each party has to say but more importantly, provide the structure and control to ensure that reason and fairness are not lost in what can sometimes be an emotional maelstrom.

Where appropriate, an expedited and informal exchange of critical documents can frame the boundaries of the dispute, and provide the parties with sufficient knowledge to make decisions.  Mediation also offers the parties confidentiality. Once incendiary charges are filed in court, the perceived need to achieve vindication becomes a formidable barrier to settlement.  By avoiding the inherently adversarial nature of litigation, family relationships that would otherwise wither may survive.  

Moreover, the flexibility that is not available in a contested estate proceeding can be achieved in mediation.  The court is often limited in the type of remedy that it may implement, and it is always constrained to apply the law.  Mediation allows the parties to explore solutions that may not be achievable in a litigation.

Mediation can also provide an expedient and cost effective resolution, when absent exceptional circumstances, the average litigation will consume several years, together with ever increasing legal fees.  For example, I recently mediated a Surrogate Court proceeding in which two sisters challenged the accounting by their brother, the executor named in their mother’s will.  After four years of litigation, each of the three parties was on their second set of lawyers.  Total legal fees for all parties were in the low six figures, and the siblings had not conversed in years.  But after six hours of mediation, with all three siblings at the table, the case settled.  The hostility among the family members has ameliorated, when absent mediation, the internecine war would have continued indefinitely.  Cousins now gather for family holidays.

In sum, for the same reasons it has become a preferred alternative in commercial disputes, mediation should be the first option in trust and probate matters.

Joe DiBenedetto recently retired from Winston & Strawn LLP, after spending 46 years in its Manhattan office as a capital partner specializing in commercial litigation. He formed JDB Mediation LLC to further develop his mediation and arbitration practice, which is centered in Manhattan and its surrounding counties (including Westchester, Nassau, and Suffolk). Joe DiBenedetto’s experience, training, and other credentials are more fully described at