THE NH PROBATE Court’s mediation program, which was instituted just over a year ago, has thus far proven a success, according to Probate Court Administrative Judge John R. Maher.

In its first year of existence, the probate court mediation program – one of only a handful of probate mediation programs in the country – took on about 120 cases, about 70 percent of which were mediated successfully, Maher said. And that success rate doesn’t even factor in the percentage of cases that end up getting resolved later: After an unsuccessful mediation, parties often – upon having an opportunity to step back and think about the case – return to mediation to resolve the case or to mediate additional issues.

"We’ve had a very positive response to the program so far," Maher said. "It has cut down dramatically on the number of contested cases litigated in the probate courts, as well as the length of contested cases."

The mediation program works as follows: During the structuring conference of a probate case, the judge and parties discuss the availability and possibility of mediation to resolve their matter. If the parties choose to try to have their dispute resolved through mediation, a mediator is chosen from a pool of 10 paid mediators contracted by the courts.

The program uses facilitated mediation, in which the mediator doesn’t assess the case, evaluate the parties’ positions or make any decisions, but helps the parties to communicate with each other, and, hopefully, come up with a mutually satisfactory resolution of their dispute.

If the mediation is successful, the mediator files a report with the court detailing the resolution achieved. If unsuccessful, the mediator simply notes that the mediation didn’t work, without explaining why, and the case goes back on the trial calendar.

The pool of 10 probate court mediators was chosen from a group of about 60 "top-notch" applicants, according to Maher. The mediators have undergone extensive training and have considerable experience in mediation, often in the probate area.

Concord attorney Connie Rakowsky of Orr & Reno is one of the mediators contracted by the probate court. Rakowsky said she has mediated 14 probate cases since the program began, cases involving petitions to partition, disputes over distribution of estates and trusts, and disputes over guardianship.

Rakowsky has found the probate mediation program quite effective at resolving cases that – unlike commercial cases, for example – involve highly personal issues and emotional parties. "Particularly in probate cases, the disputes are so personal, and the law doesn’t have nice, neat resolutions for such problems," she said. "Talking them out is a good way to resolve these situations."

"It also gives parties the opportunity to talk to each other without the screen of their lawyers, without confrontation and further entrenchment in their positions."

Rakowsky’s approach to probate mediation is to point out to parties that even if they resolve their issues, "they aren’t necessarily going to be eating Christmas dinner together afterwards."

"Putting it into that perspective takes some of the pressure off and breaks the logjams," she said.

"I have found that the parties are emotionally wrapped up in their positions, but are very willing to open up a bit and look at the issues and a way to solve them," she added. "Facilitative mediation is a perfect fit for probate cases because there are no hard and fast right and wrong issues."

Rakowsky said that most of the 14 cases she’s handled have been settled – if not all of the issues in the case have been resolved, at least the key issues have been dealt with. She considers the new mediation program "very successful."

"The advantages of the program are that it saves money, effort, turmoil, and stress, and allows people to get on with their lives. It’s a highly positive experience," she said.

Attorney and probate court mediator Frank E. Kenison of Cook & Molan, Concord, has mediated 10 cases through the program thus far, and says the most common disputes he has encountered have been between children or relatives over an estate. He agrees that the mediation program is a way to avoid long, costly litigation, and gives parties the opportunity to not only settle their cases, but to also address the underlying personal issues. "It would be a terrible waste of time to have cases that can be resolved through mediation go to trial. Litigation is an expensive, time-consuming process," Kenison said.

Maher cited an example of a case involving charitable trusts that would have taken about a month to try. But after just two days of mediation, the two sides were able to come up with an acceptable resolution of the case. "The lawyers were all stunned. They are embracing mediation," he said.

Kenison said that mediation also provides "a more conducive environment for addressing and resolving the relational issues than open court does."

"Problems develop in families and lie dormant for years, then someone dies and all those issues come out in probate. What’s unique in probate mediation versus superior or federal court mediation is that the underlying relationships are far more pivotal. You have to deal with them in order to come to some sort of resolution."

The probate mediation program encourages the parties to respect and recognize different points of view, positions and interests, Kenison said, which not only helps to resolve the case, but may also help prevent future litigation between the parties. "This kind of mediation has the potential to repair damaged family relationships, which may help to resolve further issues down the line," he said.

Kenison feels the benefits to the probate court mediation program are many. "Mediation is less expensive for the parties and furthers the purpose of the probate court, which is the expeditious opening and closing of an estate."

The probate court is to give the Legislature an annual status report on the mediation program, which is scheduled to sunset in 2006 or 2007. At that time, the Legislature will decide whether the program should continue as is, using a portion of filing fees collected by the court to pay mediators, or should be a program funded by the court system.

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