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The Closer
A Mediation Newsletter 
May 2010
Probate and Mediation
by James Rainwater
By their nature, probate matters can be one of the more convoluted areas to mediate. The parties are trying to determine, in their own minds, the exact wishes of the decedent. For the mediator, trying to keep the parties focused on that and not the hostilities the parties have for each other is no easy task. Assuming the attorneys have a general expertise in probate, the mediator's main job is to get the disputing parties to agree to something.
Since the estate has reached this level of legal action, the parties have some latitude in interpreting the desires of the deceased. An experienced attorney can get the client to make some concessions in order to the resolve the bigger picture. Few parties would be completely happy with the ruling of a judge, and here they have that chance to agree to something of their own devices.
To prepare for such a mediation, ask your clients to write a list of what they believe the decedent intended, what the decedent could have reasonably intended otherwise, and what minimum share of the estate the clients would be truly willing to take. By doing some pre-mediation "negotiating" with your clients, you can give them some ongoing reality checks that will better prepare them for the actual mediation conference.
Conducting a probate mediation can be a test of patience for any mediator, as well as a time of anger mixed with sadness for the parties. Oftentimes, the parties have not spoken or seen each other for long periods of time, and this is not likely to be a pleasant "family reunion." However, by focusing on completing the wishes of the deceased, the mediator can show the parties that some closure can be obtained and, possibly, some relationships mended. The mediator can help the parties realize the final best interest of the decedent.
