In around 2008, I became certified as a “Circuit Civil Mediator” by the Florida Supreme Court, intending for mediation to be an additional component to my trust and estates litigation practice. In the years since, I have successfully mediated cases in Florida and other states for very many trust and estate colleagues and their clients. As my mediation practice has grown, my interest in “getting deep” into mediation dynamics has grown with it. To satisfy my need to develop real mediation skill, I have engaged in a course of self-study, immersing myself in books, articles, blogs, videos, courses, and conversations regarding mediation, negotiation, and various approaches and techniques to achieving resolution, specifically in trust and estates disputes.
In this blog, I will share with you my insights on all topics related to trust and estates mediation, from the practical to the philosophical, and everything in between. I hope that you, in turn, will share with me thoughts, concerns and questions related to mediation of trust and estate matters, and that we may all continue to learn from each other as well as the published experts.
For my very first blog post, I am going to start with what I always thought was an obvious point: attorneys must come to mediation prepared to succeed, i.e. to settle the matter. For an agreement reached at mediation to be binding on the parties, at least in Florida, the parties and their counsel must sign a written settlement agreement. If that is the goal (and the trophy of a successful mediation), then attorneys representing clients at mediation should (1) have thought through what documents need to be signed, what steps need to be taken, what tax information needs to be ready, in order to implement settlement; (2) have a shell or draft settlement agreement ready for revision; (3) have a means for clients to print, sign and return the agreement. For example, if parties are fighting over a securities account, and the settlement approach contemplates distributing the proceeds in certain percentages, the attorneys should have worked through whether their clients are better off taking assets in kind or in cash, and what the tax ramifications of each might be. If the parties are fighting over ownership of a parent’s house, and the settlement approach is for one of the parties to buy the other out, both sides’ attorneys should be armed with a current appraisal. This seem like simple and common sense advice, but I can tell you from experience that many lawyers treat mediation as an unimportant step in the process undeserving of any advance thought and preparation. Since better than 80% of cases settle before trial, my view is that mediation should be taken just as seriously.
I am looking forward to embarking on this project with you. Let’s see where it takes us!