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Bar Journal - March 1, 2001

Mediation in the Probate Court

By:

Mediation is rapidly expanding and gaining acceptance in probate courts across the country. The main reason for the proliferation of mediation programs in this area is that probate courts routinely handle cases where relationship issues predominate. Disputes over the disposition of decedentsí property involve issues associated with different views of fairness by family members, differences of power within the family, lack of communication between family members, and cases where the expected inheritance was lost to someone whose relationship with the decedent was viewed as inappropriate. Guardianship and conservatorship cases involve disputes among family members over how to care for their older relatives. Petitions to partition involve disputes between parties who jointly own property.

Cases involving personal and family relationships are ideally served by mediation. Litigated solutions ignore the complex emotional and relationship issues that underlie these disputes.2 Mediation helps parties avoid the emotional costs of litigation. It helps repair or improve ongoing relationships. Parties who choose mediation can develop a unique solution that meets their individual needs. Mediation also allows the parties to keep the details of their personal lives, their dispute, and the terms of the disputeís resolution private, rather than letting these matters become part of the public record.

Recognizing the benefits and possibilities of mediation, the New Hampshire Probate Court began the process of developing a formal mediation program. The first task was to articulate the following program goals and objectives:

increase access to justice; increase parties participation in Court processes and their satisfaction with the outcome; allow cases to settle more quickly with less expense to the parties; reduce future litigation by the same parties; reduce demands for judicial resources; and enhance the image of the Court.

These goals and objectives provided a road map for the development of the program.

In the near future, Bar members will have the opportunity to comment on this program. This article provides an overview of how the State of New Hampshire Probate Courtís program plans to achieve these goals and objectives. It begins with an examination of the benefits mediation offers, as compared with direct negotiation among the parties, and how these benefits were incorporated into the programís design. Next, it examines what parties want from a dispute resolution process, and how to meet these expectations. The article then looks at how mediators conduct a mediation proceeding. Mediation is not a fungible process and is conducted differently in various settings. For the Probate Court program to meet its goals, the appropriate process must be chosen. Finally, the article outlines the necessary qualifications of mediators participating in the program.

WHAT DOES MEDIATION OFFER OVER PARTY TO PARTY NEGOTIATION?

To understand how the Probate Court plans to achieve the goals of its mediation program requires a look at the benefits of mediation over direct party negotiation. This includes an analysis of the possibilities that mediation offers and an understanding its value:

The study of strategic and cognitive barriers suggests a powerful answer. First, mediators can help parties put more information on the table and ensure that it is reliable and less suspect than would be the case if the parties negotiated alone. As a result, parties can enrich their informational environment, gain greater clarity and then go ahead as they would in negotiation and make decisions for themselves.... Second, mediators can help parties perceive each other - including past and present actions, attitudes, motivations and positions - more fully and accurately.

This answer places a premium on the quality of information provided during a dispute resolution process. Impasse and sub-optimal settlements occur where there is inadequate or unreliable information. When negotiating directly, parties are reluctant to express their true objectives since doing so may severely disadvantage their position. Since everyone knows this, no one can rely on what the other side represents. As a result, there is not enough reliable information on the table to enable the parties to identify possibilities for a mutually beneficial exchange. Even though this strategic concealment results in sub-optimal outcomes, it is quite rational because openness and full disclosure - particularly where the other side does not reciprocate - can otherwise lead to outcomes in which one party receives less.5 This approach to dispute resolution leads to unnecessary deadlocks and, more important, to a failure to discover options or alternatives that can make each side better off.6

A second kind of informational barrier impedes the use of whatever information parties do manage to put forth. This occurs because of what negotiation scholars call "cognitive biases."7 "The insight here is based on psychological research showing that, in the cognitive process by which people assimilate information, there are regular and identifiable Ďdepartures from realityí that lead to distortion and misinterpretation of the information received."8 This means that information received by one party gets distorted as it is received and processed. Research shows that parties "feel the pain" of a loss more than they "feel the pleasure" of a gain.9 Therefore, if what is offered is perceived as a loss, that party will do anything to avoid the perceived loss even when an objective comparison shows that each side would gain more than it is giving up in the trade.10

The introduction of a mediator to the negotiation process improves the information flow and increases the sense of confidence in the reliability of the representations made by the parties. They no longer feel the need to mislead their counterparts as to their true objectives because the mediator acts as a buffer between opposing positions, protecting confidential information. The mediator helps the parties to maintain their negotiating positions, while allowing them to reveal information that is helpful in moving the process forward. A mediator also helps foster a problem-solving atmosphere and lessens the temptation to engage in unproductive strategic behavior. Lastly, the mediator can help parties re-conceptualize perceived losses, reducing the effects of loss aversion. Consequently, parties with higher quality information and less interpretive distortions will understand their situation and the various options available for resolution.

Other negotiation barriers include misunderstanding the opposing partyís motives, objectives, and their past and present actions. A mediator can focus on encouraging and supporting each of the "partiesí presentation to and reception from one another of their different perspectives."11 In this manner, the parties avoid responses in the negotiation that are based on false assumptions or perceptions. With improved understanding and recognition of each other, the partiesí communication is ultimately enhanced. In essence:

The central quality of mediation is its capacity to reorient each party towards each other, not by imposing rules on them, but by helping them to achieve a new and shared perception of their relationship, a perception that will redirect their attitude and dispositions towards one another.12

Differing perceptions amongst family members is one of the biggest impediments to resolving disputes in the Probate Court. Emotional issues or a breakdown in family communications may distort how the dispute is viewed. For example, disputes may arise when children of a first marriage contest property which is left to a second spouse; when an heir challenges the bequest because of expectations by that heir associated with the care of decedent; or when an heir contests a bequest because of an unspoken belief that decedent intended that heir to receive the bequest in question.

Probate Court disputes also reflect power and status within the family or the familyís views of what is considered appropriate.13  The mediator can assist the parties in addressing these differing perceptions by putting more reliable information on the table. This enables them to better discern each othersí motives and perspectives. The parties can then identify possibilities for a mutually beneficial resolution. This is the "value added" by the introduction of a mediator.

WHAT PARTIES WANT FROM MEDIATION

A well-designed mediation program takes into account what the parties want from a dispute resolution process in addition to what the mediator adds to it. We know that mediation can improve the efficiency of party-to-party negotiation, but what else do the parties want from the process? Participant evaluations conducted by various mediation programs offer some insights. Several studies have identified three basic themes reflecting what participants valued from the process. First, the mediator enabled the parties to deal with issues that they felt were important. Second, the process allowed them to present their views fully and gave them a sense of having been heard. Third, the process helped the parties to understand each other.14

Additionally, a second set of studies associated with "procedural justice theory" shows that parties usually prefer the consensual process even when the outcomes they receive in the processes are unfavorable.15 Both sets of research indicate that parties care more about how the process was conducted than about the result achieved. Parties submitting to mediation want to participate in the decision making, as well as have an opportunity to express themselves.

For the proposed Probate Court mediation program to be successful, these studies reveal that the mediators must focus on party participation and control. The mediators must create an environment in which the parties achieve a sense of empowerment over the outcome and in which their individual perspectives are recognized. When this occurs, the parties feel like they have control over the process. This increased party involvement and resulting control over the process produces self-determination, one of the critical components to a successful mediation process.16 It is also a foundation block of all codes of ethics used by mediators.17 

In addition, for a mediation process to meet party expectations, the mediator must focus on allowing the parties to express themselves. If the parties cannot fully present their views, then they will not listen to what is said by the other side. This process of allowing each side to hear what the other has to say is referred to as "fostering recognition." When encouraged, fostering recognition permits the personal exchanges necessary for each party to understand the other in a new light. When the New Hampshire Probate Mediation program focuses on empowerment and recognition, it will achieve what the parties want from a dispute resolution process.

HOW MEDIATORS LOOK AT THE PROCESS

The advent of courts venturing into the alternative dispute resolution arena has dramatically changed mediation. These changes have taken mediation and mutated it into a process that more resembles "litigation lite."18 The process is now largely controlled by mediators and court rules that offer the private sphere the evidentiary and procedural norms underlying our adjudicative system.19 In practice, court mediators tend to evaluate likely judicial outcomes when they feel it is necessary to move a case forward on a particular issue or to resolve the entire dispute.20 They also evaluate the partiesí dispute based on the belief or expectation that justice requires an outcome within the range of what litigation would produce.21

This style of mediation is referred to as "evaluative mediation." The evaluative mediator believes that participants want an assessment of their respective claims and guidance on the appropriate terms for settlement. To accomplish this objective, the mediator carefully looks at the pleadings, reports, and mediation briefs filed by the parties. The evaluative mediator tries to settle disputes in a manner that approximates the result that would be produced at trial.22 The most important issue tends to be the likely outcome of a trial.23 To accomplish this, the mediator proposes position-based compromised agreements. In order to get the parties to move to these positions, the mediator may predict court outcomes and try to persuade the parties to accept the mediatorís assessments of the strengths and weaknesses of each sideís case.

Some defend evaluative mediation on the theory that an evaluation is what the parties really want. Having already addressed what the parties want from mediation, and realizing that this evaluative approach may not achieve this, it becomes apparent that attorneys may choose this approach because they are more familiar with a process that is legally oriented. This explains why many lawyers prefer mediators who are litigators and have subject matter expertise but may lack mediation process experience. Attorneys are trained to focus on legal issues and positions. They are uncomfortable talking about feelings and perceptions. The result is that the potential of mediation is lost when the process no longer focuses on empowerment and recognition.

The opposite style of mediator is the facilitator who assumes the parties are intelligent and capable of understanding their situation,24 and who orchestrates the dialogue between the parties so that they may develop their own solution. These mediators encourage party empowerment and foster recognition of each party by ensuring that the parties are communicating clearly, that they properly understand the nature of the dispute, and that they perceive the interests and concerns of the other party.25 

The facilitative mediator seeks to help the parties define, understand, and resolve their dispute. This is accomplished by encouraging each party to understand the nature of the problem from the other partyís perspective. With this new understanding, the facilitative mediator assists the parties in identifying the underlying needs that each party must address. This process helps generate and assess proposals to accommodate those needs. The facilitative mediator helps the parties find ways to address the motivators behind their legal positions. The facilitator does not provide assessments or predictions about the ultimate outcome of the case.

In addition to mediating style, the mediatorís approach to resolving disputes is also very important. When court annexed mediation follows an evaluative model, the focus tends to lie on the partiesí legal positions as opposed to their interests. Focusing mediations merely on party positions is a "zero-sum game" with winners and losers, as opposed to finding a win-win solution. In the "zero-sum game," the dispute deals only with the allocation of money or property, or who gets what. In this situation, when one party receives more, the other gets less, so there is no way to satisfy all parties. This creates what is known as a "lose-less lose-less" situation. Some defend this approach in civil cases because the dispute may appear to involve only the payment of money or distribution of property. This is unfortunate, because even in civil cases a partyís concerns extend beyond money and property and are worthy of consideration.

Interests are the party motivators. They are the concerns that motivate all people: security, economic well-being, a sense of belonging, recognition, and control over oneís life.26 When these concerns are addressed, they will reveal the existence of more interests that are shared or compatible than ones that are not shared or incompatible.27 Focusing on interests allows the negotiation to increase the range of possible outcomes and results in "creation of value." In a will contest, interests may relate to a desire for confidentiality, for feelings of recognition, for power and status within the family, for fair treatment by other family members, for decedent acceptance, and for improved relationships. While the partiesí legal positions may be in conflict, these interests may not. Dealing with these interests may help meet the partiesí needs, making it easier to resolve their legal claims, allowing for a win-win solution.

The Probate Court favors an interest-based, rather than a position-based, approach to mediation. Interest-based mediation focuses on what the parties want, rendering it the most applicable way to handle multi-faceted probate matters. In an interest-based mediation, the mediator seeks to assist the parties in clarifying their needs and desires in order to facilitate a resolution. In many instances, individual party interests are the result of a deterioration of communications among family members and the resultant feelings of grief. By focusing on how to resolve these individual needs, the parties will find that they actually share many of the same concerns and interests.

Interest-based mediation looks to the future, seeks to restructure relationships, results in custom-made resolutions, and encourages client participation.28  Interests cannot be rejected, objected to, or disagreed with by the other side; in a sense, interests are like feelings; they belong to the parties.29 Interest-based mediation seeks to meet each partyís needs. It does not seek to vindicate legal rights.

Interest-based processes enable and encourage parties to resolve their own conflict.30 The disputants are thus able to retain more control over the outcome of the mediation. Additionally, an interest-based approach allows for creative solutions not available through a position-based approach. In this manner, interest-based mediation uses problem-solving techniques to address the perceived needs of the parties.31 When the partiesí needs have been addressed, they may have the opportunity to reach a working and lasting solution to their dispute.

Position-based mediation, on the contrary, focuses on the violation of legal rights and often involves the mediatorís views of the partiesí strengths, weaknesses, risks, benefits, and detriments.32 Generally, position-based mediation looks to the past, focuses on facts, and seeks to establish fault or liability. It appoints winners and losers, and is traditionally dominated by lawyers.33 It is associated with the evaluative style of mediation, where the mediator makes judgments about the partiesí case. The problem with using this approach in the Probate Court is that it fails to recognize what the parties want from mediation, which is empowerment and recognition. It also fails to increase the range of acceptable settlements because position-based mediation does not "create value" as does interest-based mediation.

Many attorneys believe that mediators must be attorneys with subject-matter expertise in order for mediation to be successful. This perception is at odds with research showing that mediators who were lawyers with subject-matter expertise did not perform better than non-lawyers in the same civil court program.34 The tension between the need for process skill versus subject-matter expertise revolves around what role the parties want the mediator to fulfill. Where the parties want the mediator to guide the parties toward a solution that reflects how a court might resolve the dispute, the need for subject- matter knowledge increases. On the other hand, if the process is geared toward meeting what the parties want from mediation and toward resolving their needs, then process skills become more important.

Research confirmed that "high conflict mediators were not viewed favorably by disputants."35  This finding is not surprising because parties really want empowerment and recognition from mediation. To achieve these goals, the mediator is required to focus on process skills, both general and specific to mediation. General skills include the ability to listen actively; use clear, neutral language; exhibit sensitivity to the strongly felt values of the parties; understand and address power imbalances; and identify and separate personal values from the issues under consideration. Skills specific to mediation include the ability to understand the negotiating process and the role of advocacy; earn trust and maintain impartiality; convert the partiesí positions into needs and interests; screen out non-mediable issues; help parties assess their non-settlement alternatives; help parties to invent creative options; and help parties make their own informed choices.36

QUALIFICATIONS OF PROBATE COURT MEDIATORS

The Probate Court mediators, including judges, attorneys and non-attorneys, must be capable of handling the specialized issues surrounding family disputes, for these represent the majority of disputes in probate courts. Specific guidelines were developed to help assemble the best possible group of mediators, whose backgrounds and mediation styles are in line with the Probate Courtís goals and objectives. These guidelines take into consideration such issues as professional experience, education, personality traits, prior training, and certification. The guidelines are based on recommendations from established dispute resolution resources, such as the Center for Dispute Settlement in Washington, DC, and the Society of Professionals in Dispute Resolution (SPIDR). The experience of established probate mediation programs in other states and the analysis and feedback from other New Hampshire State court mediation programs was also considered.

The National Standards for Court-Connected Mediation Programs were a useful resource for determining the guidelines for hiring mediators. These standards were published as a joint project of the Center for Dispute Settlement and the Institute of Judicial Administration in New York City. A team including judges, state and local court administrators, mediators, attorneys, academics, and officers of professional mediation organizations formulated a set of guidelines addressing all aspects of mediation, from party access and court responsibility to ethical standards, funding, and the selection of cases for mediation.37

In the section regarding Qualifications of Mediators, the Standards adopted the report of the SPIDR Commission on Qualifications.38 The SPIDR Commission states that "the most commonly discussed purposes of setting criteria for individuals to practice as neutrals are: (1) to protect the consumer and (2) to protect the integrity of various dispute resolution processes."39 The SPIDR Commission outlined a list of mediator qualifications it suggested "should be considered by courts and applied depending on the type of case involved."40 The New Hampshire Probate Court Mediation Program has adopted this list of qualifications. These qualifications include various skills, knowledge of dispute resolution processes, an awareness of legal standards, and an adherence to ethical standards.

In order to offer parties the best possible choice of mediators, professionals in many fields will be eligible to serve as neutrals in the Probate Court mediation program. All applicants must have completed at least forty hours of mediation training. Attorney mediators will be required to have five years of legal experience, with a substantial portion of their practice in the Probate Courts. Non-attorney mediators will be required to have five years of professional mediation experience, with a substantial number of hours in family-related issues. All applicants will be required to undergo a specialized training process designed to enable them all to be equally skilled in mediation and in issues specific to probate court disputes.

Mediators will be evaluated and re-evaluated on a regular basis to ensure that they are working to achieve the goals of the Probate Court program. The SPIDR Standards offer courts suggestions for maintaining their mediator rosters. Specifically, it is suggested that "[c]ourts should continue to monitor the performance of mediators to whom they refer cases and ensure that their performance is of consistently high quality."41  Additionally, "[c]ourts should adopt procedures for removing from their roster of mediators those mediators who do not meet their performance expectations and/or ensuring that they do not receive further court referrals."42 

CONCLUSION

Probate disputes often involve a history of failure by family members to express anger or resentments toward the deceased or relatives.43 To resolve these disputes, "one must understand the grieving process; family dynamics; the need for a forum to express resentment; refusal of family members to accept termination of the family; and their preference for continued conflict rather than abandonment, and timing of settlements within these processes."44  Mediations that focus solely on legal rights and positions do not address these issues. Successful resolution of disputes with these non-legal issues is only possible by (1) increasing the participantsí control over outcomes; (2) allowing them to understand the basis for differing perceptions; (3) emphasizing the importance of communication; and (4) teaching them new ways to deal with potential future conflicts.

Had the Probate Court decided its goal was solely the settlement of cases, the design would have included coercive techniques that foster settlement, including "arm-twisting" and evaluation. The problem with these approaches is that they ignore the potential offered by mediation. Recognizing this problem, the Probate Court has instead chosen a mediation process that will not only settle cases but will also achieve what the parties want most from mediation. The mediation process chosen focuses on increasing the informational flow between parties; allowing the parties control over decisions; addressing how the parties perceive each other; and using a process that addresses the relational issues and partiesí interests. If this approach is followed, the process will achieve the goals articulated by the Probate Court.

ENDNOTES

1. Susan N. Gary, Mediating Probate Disputes,13-AUG Prop. & Prop. 11, 14 (1999).
2. Id. at 11.
3. Probate Mediation Rule ____________ (to be codified at ___________)(proposed Jan. ___, 2001).
4. Robert A. Baruch Bush, What Do We Need A Mediator For?: Mediationís "Value Added" for Negotiators, 12 Ohio St. J. on Disp. Resol. 1, 15 (1996).
5. Robert H. Mnookin, Why Negotiations Fail: An Exploration of Barriers to the Resolution of Conflict, NIDR FORUM Summer/Fall 1993 at 24.
6. Id. at 24.
7. Bush, supra note 4 at 9.
8. See id. at 10.
9. Id.
10 Id.
11. Id. at 30.
12. Kimberlee K. Kovach & Lela P. Love, Mapping Mediation: The Risks of Riskinís Grid, 3 Harv. Nego. L. Rev. 71, 92 (1998).
13. Susan N. Gary, Mediation and the Elderly: Using Mediation to Resolve Probate Disputes, 32 Wake Forest L. Rev. 397, 421 (1997).
14. Bush, supra note 4, at 17.
15. See id. at 18.
16. See id. at 30.
17. See comments to Section 1 of the "Model Standards of Conduct for Mediators" adopted by the American Arbitration Association, American Bar Association, and the Society of Professionals in Dispute Resolution (stating "Self-determination is the fundamental principle of mediation").
18. Jack M. Sabatino, ADR as "Litigation Lite: Procedural and Evidentiary Norms Embedded Within Alternative Dispute Resolution, 47 Emory L. J. 1290, 1293 (1998).
19. Id. at 1292.
20. Kovach, supra note 12 at 75.
21. Id. at 95.
22. Leonard L. Riskin, Understanding Mediatorsí Orientations, Strategies, and Techniques: A Grid For The Perplexed, 1 Harv. Nego. L. Rev. 7, 9 (1996).
23. Id.
24. Leonard L. Riskin, The Represented Client in a Settlement Conference: The Lessons of G. Heilman Brewing Co. v. Joseph Oat Corp., 69 Wash. U.L.Q. 1059 (1991).
25. Arthur A. Chaykin, Selecting the Right Mediator, Disp. Resol. J. 60 (1994).
26. Roger Fisher and William Ury, "Getting To Yes," second edition 1991 at 48.
27. Id. at 42.
28. Id.
29. Id.
30. Id.
31. SPIDR Track I Committee, Guidelines for the Design of Integrated Conflict Management Systems Within Organizations, www.spidr.org.
32. Mark K. Schoenfield, Hidden Traps: The Philosophical Considerations in Choosing Mediators and Arbitrators, 61-DEC Or. St. B. Bukk. 17(Dec. 2000).
33. Id. at 51.
34. National Symposium On Court-Connected Dispute Resolution Research, edited by Susan Keilitz, published by the State Justice Institute at 162, (1994).
35. Id. at 163.
36. See Center for Dispute Settlement, et al, National Standards for Court-Connected Mediation Programs.
37. Id.
38. SPIDR Commission on Qualifications of the Society of Professionals in Dispute Resolution at 6-1. (1989).
39. Id.
40. Id.
41. Id. at 6-6
42. Id.
43. Dominic J. Campisi, Using ADR in Property and Probate Disputes, PROB. & PROP., May/June 1995 at 48.
44. Id. at 48.

The Author

Attorney Peter Y. Wolfe is Superior Court ADR Administrator as well as clerk of the Sullivan Superior Court.

The Author

Kelly R.A. Mullen is a third year law student, Franklin Pierce Law Center, Concord.

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