Mediating Probate, Trust, and Fiduciary Disputes
By Patricia L. Davidson, Mirick, O’Connell, DeMallie & Lougee, LLP
Probate, trust, and fiduciary litigation is usually contentious. Will contests, breach of fiduciary duty claims, objections to accounts, etc. are often fraught with simmering, often irrational, emotions. Litigation can dissipate family assets and perpetuate conflict, often across multiple generations. Because these disputes involve more than money, “family feuds” are well suited to mediation.
Mediators facilitate compromise. They try to problem-solve collaboratively and set expectations about the potential outcome of a trial. Trials are about winners and losers; mediation can help parties find creative resolutions.
Mediators assist parties to work through both economic and psychological issues, such as trusteebeneficiary power imbalances and sibling rivalries. Mediation provides a forum where parties can vent to an impartial person. Ultimately, parties must focus on the legal issues.
Lawyers should work with the mediator to help clients understand the benefits of a negotiated resolution and the uncertainty and expense of litigation. Mediators often engage with just the lawyers to discuss issues, narrow the disputes and vet potential settlement terms. But when lawyers emphasise advocacy over collaboration, lawyers can impede settlement. Lawyers should not channel clients’ emotions but should maintain objectivity and stress to their clients that a negotiated settlement provides control over the outcome of a legal controversy.
Mediators – and lawyers – can help parties understand that in family feuds, trials seldom bring vindication. Fact finders are rarely outraged and may not relate to parties sparring over wealth. Judges are often more concerned with the intent of someone who has died than the wants of the litigants.
In advance of the any mediation, lawyers should share the old adage that the mark of a good compromise is when no one is happy, and the old joke that if you have a perfect case you only have an 80% chance of winning. And of course, no one has a perfect case.
Patricia L. DavidsonGGI member firm
Mirick, O’Connell, DeMallie & Lougee, LLP
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Worcester (MA), USA
T: +1 508 860 1540
Mirick O’Connell is a full-service business law firm with offices in Worcester, Westborough, and Boston, Massachusetts, USA. Excellence in work. Excellence in client service. Excellence in value.
Patricia L. Davidson is a partner in the Probate, Trust and Fiduciary Litigation Group and the Business and General Litigation Group. Her practice focuses on helping families resolve issues involving wills, trusts, and real estate, as well as disputes involving family and closely held businesses.
Published: Trust & Estate Planning Newsletter, No. 05, Spring 2020 l Photo: SeanPavonePhoto - stock.adobe.com