Mediation, Probate, and Estate Planning

Lela Love and Stawart Sterk recently published an article, Leaving More than Money: Mediation Clauses in Estate Planning Documents, 65 Wash. & Lee L. Rev. 539 (2008).

The abstract of their article reads:

When probate disputes arise, an increasing number of courts have been referring those disputes to mediation. Estate planners, however, have been less proactive about drafting wills to include mediation clauses that would anticipate estate disputes and channel them away from litigation. When a will mandates mediation, the will provides a dispute resolution mechanism designed to preserve family harmony, conserve estate assets, and avoid airing the family’s “dirty laundry”-objectives common to many testators.

Mediation clauses in wills are no panacea. They are of little value to testators who exalt control over estate assets above all other concerns, and they are unlikely to bind disappointed family members whose primary claim is “against the will” rather than “under the will.” Nevertheless, compared to other alternatives frequently employed by estates lawyers (including “no contest” clauses), mediation clauses present significant potential for reducing estates litigation, with its attendant financial and emotional costs.

The idea of introducing mediation to estate planning and probate processes, of course, is not new.  A decade ago, for example, my colleague here at Oregon, Susan Gary, published an article entitled Mediation and the Elderly: Using Mediation to Resolve Probate Disputes Over Guardianship and Inheritance, 32 Wake Forest L. Rev. 397 (1997) along with companion pieces exploring mediation in other probate contexts.  And a number of others have also provided insights about the opportunities and challenges to mediating these categories of cases.

Love & Sterk’s article, though, does a  service by providing not only the theoretical articulation of mediation’s potential benefits and costs, but also concrete suggestions about what it might look like for those involved in the front-end (estate planning) processes to do some real good.  Congratulations (and thank you) to them for their contribution.

Michael Moffitt

2 thoughts on “Mediation, Probate, and Estate Planning”

  1. Two problems immediately come to mind.

    First, can the testator bind his heirs or putative heirs without their consent?

    Second, it is frequently the case that most potential parties in probate contexts fail to enter an appearance and a mediation clause that implicitly requires their participation can impede settlement of the estate.


    Maryland: Going out of business?
    The Baltimore Examiner Newspaper

    If the slate of new income, corporate and sales taxes weren’t enough to deter business from the state, Maryland’s lawsuit climate should be. A new survey labels Maryland the ninth worst legal climate in the United States — dropping from 35th place in 2006.

    We chronicled one of the big reasons Directorship magazine and the American Justice Partnership decided to demote the state. A proposed law in the General Assembly earlier this year would have allowed plaintiffs to sue lead paint manufacturers without having symptoms related to lead poisoning and without knowing which paint manufacturer’s product covered their walls. It would have been the first such law in the country. Good sense prevailed and it failed. But it does not mean it will not come back next year. Nor does it mean that other bad ideas won’t be resurrected during the next session.

    One of those is legislation to raise the limit for “pain and suffering” damages in wrongful death malpractice suits against doctors, nurses and hospitals. Maryland already has 16 percent fewer practicing doctors per capita than the national average, according to a study from the Maryland State Medical Society and the Maryland Hospital Association. The liability climate is one reason the study expects that gap to widen and make it harder to attract and retain physicians in Maryland.

    Another bad piece of legislation was one that would have allowed vigilante trial lawyers to file “false claim” lawsuits against anyone doing business with the state. This would have opened up every contractor to legal trouble for even the smallest of billing errors in its business with Maryland.

    These bills — and individual lawsuits — may seem harmless. They are not. A hostile legal climate means “employers are less likely to expand jobs in our state, consumers pay higher prices for goods and services and patients’ access to affordable health care is threatened,” as Todd D. Lamb, executive director of Maryland Citizens Against Lawsuit Abuse, told The Examiner.

    Nationally, the “tort tax” is estimated to cost Americans about $865 billion each year.

    Maryland does not need to add to that bill. More importantly, it must not make it harder for its own residents to find doctors and purchase goods at a time of rising unemployment, ballooning energy costs and heftier taxes. The federal government’s large presence in Maryland may shield it from some of the economic malaise hitting other states. But we need business to thrive. Lowering “pain and suffering” damages in the next legislative session would be a good start in reversing the state’s negative image to onlookers and to reopening it for business.

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