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.