Keeping Dirty Laundry Where it Belongs: A Move to Court-Ordered Mediation for Will Contest Disputes
| Author | Jessica M Pagano |
| Position | JD Candidate 2018, The University of Alabama School of Law; BS 2015, Trinity University |
| Pages | 384-407 |
© 2018 Jessica M Pagano and Dublin University Law Society
KEEPING DIRTY LAUNDRY WHERE IT BELONGS: A
MOVE TO COURT-ORDERED MEDIATION FOR
WILL CONTEST DISPUTES
JESSICA M PAGANO
Introduction
In 1980, John Lennon, world-famous musician and founding member of the
Beatles, was murdered. His will placed all of his assets in a trust and
appointed his second wife, Yoko Ono, as trustee.
1
The beneficiaries of the
trust were Ono and Sean, Lennon’s son from his second marriage.
2
When the
will was admitted to probate, Sean stood to inherit the entire estate while
Lennon’s eldest son from a previous marriage, Julian, was left with nothing.
Lennon left an estate worth about £220 million, or around €354 million.
3
This
particular situation had ‘all of the ingredients of a spectacular fight: [a]n
enormous amount at stake, a disinherited child, a new wife who [was] not
JD Candidate 2018, The University of Alabama School of Law; BS 2015, Trinity University. The
author would like to thank the editors and members of the Trinity College Law Review for their
thoughtful feedback and skilful editing. Finally, the author would like to dedicate this article to
her parents, Nick and Patty, for their unfailing support, faith, and encouragement.
1
Andy and Danielle Mayoras, ‘Celebrity Legacies: Yoko and Julian Battled Over John Lennon’s
Estate’ (The Probate Lawyer Blog, Famous Fortune Fights!, 3 September 2014).
john-lennons-estate.html> accessed 14 January 2018.
2
Elizabeth Grice, Interview with Julian Lennon, The Telegraph (23 May 1998)
peace-and-love-to-the-world-but-he-could-never-show-it-to-his-wife-and-son.html> accessed
14 January 2018.
3
Mayoras (n 1); The Great British Pound (GBP) to Euro (€) calculation was determined using
an exchange rate of 0.62 GBP/ 1 € from the year 1999 found at
rates/gbp/GBP-to-EUR-1999#charts > accessed 6 February 2018.
385 Court-Ordered Mediation for Will Contest Disputes [Vol 21]
the mother of [all of] the children. “That’s the kind of case where you [w]ould
say, ‘Anticipate a will contest’”.’
4
A will contest is an objection to the validity of a will on the grounds
that that the person executing the will was not acting of his own volition.
5
The ability to contest a will comes from the underlying substantive law of
wills, which aims to effectuate the testator’s intent in distributing property.
6
Often, when a family member does not receive an inheritance from a
deceased relative, or receives an amount that he feels is less than he is owed,
he will bring a will contest claim against the estate. There are several different
causes of action that fall under the umbrella of will contests: mental capacity,
7
insane delusions,
8
undue influence, duress,
9
and fraud.
10
Undue influence is
generally the most common ground for a will contest. Although the exact
definition is vague, undue influence essentially attempts to protect against
coercion or an overwhelming influence by another person on the testator.
11
Predictably, Julian did not accept being written out of the will. He filed a
claim contesting the will on the grounds that Ono had improperly influenced
Lennon to alter his wishes, depriving him of his rightful share of the estate.
12
Eventually, the dispute was settled, but not until 16 years after Lennon’s
death.
13
Julian ultimately felt that a settlement was ‘preferable to the
4
Carol M Cropper, ‘She May Have the Last Laugh, and a Fortune’ The New York Times (3
October 1999)
and-a-fortune.html> accessed 14 January 2018.
5
Jesse Dukeminier and Robert H Sitkoff, Wills, Trusts, and Estates (9th edn, Aspen Publishers
2013) 265.
6
Victoria J Haneman, ‘The Inappropriate Imposition of Court-Ordered Mediation in Will
Contests’ (2011) 59 Clev St L Rev 513, 526 (‘Facilitating the testamentary intent of the decedent
is therefore pivotal to respecting foundational property rights at death’).
7
An individual brings a will contest for mental incapacity when he believes that the testator
(or the person writing the will) was not of sound mind when the will was executed;
Dukeminier (n 5) 266.
8
An insane delusion action is appropriate when the testator is suffering from a false concept of
reality that directly affects a particular disposition of the will; Dukeminier (n 5) 275.
9
Duress is a facet of undue influence that often rises beyond coercion to threats of violence in
order to convince the testator to make a disposition of property that he does not agree with;
Dukeminier (n 5) 313.
10
Fraud is defined as deceit by misrepresentation. This misrepresentation is made both with
the intent to deceive the testator and with the purpose of influencing testamentary disposition;
Dukeminier (n 5) 317.
11
Dukeminier (n 5) 283.
12
Mayoras (n 1).
13
ibid.
386 Trinity College Law Review [Vol 21]
alternative – facing a lengthy court battle against Ono when she had a
wealthy estate behind her’.
14
The procedure of resolution for will contests
generally begins by filing a claim in court. A litigation procedure commences,
and parties begin to prove their claim to win the portion of the estate they
believe they deserve.
15
Then, one of two things might happen. The case might
be decided on the merits, and a court opinion is published in books and online
for all to see, read, and discuss.
16
This outcome leads to the publicising of
inherently private family quarrels, airing a family’s dirty laundry in front of
any and all that choose to peruse a legal periodical.
17
The other potential
outcome, as considered in the Lennon example, is that parties might enter
into a settlement agreement before the court can come to a resolution on the
merits.
18
Though parties may not be completely happy with this solution, the
second approach is especially common in both the modern Irish and
American judicial systems.
19
Even if the claim begins in litigation, it often
ends with an extra-judicial remedy.
20
In the US, as the Baby Boomers age, more and more estates are making
their way through the probate system, and commentators are looking to
economise an inefficient system at a time when the threat of backlog is at its
peak.
21
This attempt at efficiency has led to the introduction of several forms
of alternative dispute resolution (hereinafter, ADR) procedures in lieu of the
14
ibid.
15
Ronald Chester, ‘Less Law, but More Justice?: Jury Trials and Mediation as a Means of
Resolving Will Contests’ (1998) 37 Duquesne L Rev 173, 175 (noting that ‘[i]n a will contest, the
will is presumed to be legitimate if the proponent proves that the execution of the will was in
compliance with the applicable statutory requirements. The contestant, on the other hand, has
the ultimate burden of proof on the issue of the will’s legitimacy’).
16
Melissa M Serfass and Jessie Wallace Cranford, ‘Federal and State Court Rules Governing
Publication and Citation of Opinions: An Update’ (2004) 6 J App Prac & Proc 349 (giving an
update on Federal and State Court Rules governing publication of opinions).
17
ibid.
18
Jim Hartnett Jr and Christopher Nolland, ‘How to Reach a Settlement Agreement: Using
Mediation and Other Techniques’ (21 January 2000)
19
ibid; Courts Service of Ireland Annual Report 2016, 41
2/$FILE/Courts%20Service%20Annual%20Report%202016.pdf> accessed 9 February 2018.
20
Hartnett (n 18) (noting that most probate and trust cases usually settle); Courts Service of
Ireland (n 19) (the majority of civil cases (which includes probate disputes) do not proceed to
trial, they are typically settled among the parties).
21
Katherine C Clark, ‘A Duty to Reform: Updating Connecticut’s Filial Responsibility Statutes’
(2015) 29 Quinnipiac Prob LJ 45, 45.
387 Court-Ordered Mediation for Will Contest Disputes [Vol 21]
traditional path of litigation.
22
Ireland has witnessed a similar movement
towards mediation as an alternate method of resolving disputes, and has
introduced legislation in this regard.
23
This article will argue that although
litigation has been a traditional forum for these disagreements, a move to
court-ordered mediation is ultimately the best way to resolve will contest
disputes.
Part I will discuss and introduce the concept of court-ordered mediation
with both a definition and an illustration of the general procedures and
process. Part II will compare mediation to litigation and highlight its unique
advantages that make it particularly suitable for contentious will contest
disputes. Part III will survey several jurisdictions and their methods for
introducing ADR into the field of probate law. Finally, Part IV will respond
to critical scholarly analysis on the topic and discuss why court-ordered
mediation is ultimately the best option for tackling the specific issues
presented in will contest disputes.
I. What is Court-Ordered Mediation?
Court-ordered mediation occurs where parties file a claim with a probate
court, but, by order of a judge, the parties are sent to mediation.
24
Before the
dispute is allowed to proceed to litigation, parties must make a good-faith
effort to resolve their dispute in mediation.
25
While attendance is mandatory,
the outcome of the mediation is ultimately up to the parties, as they are free
to leave at any time. The implication of a judge mandating mediation through
the court-ordered process makes it particularly advantageous for resolving
will contest disputes. Scholars have debated whether mandating parties to
attend mediation leaves the ‘voluntary’ element of mediation intact.
26
This is
discussed further in Part IV, below. However, for purposes of the definition
and process of mediation discussed in this Part, court-ordered mediation and
regular mediation are synonymous, and thus the two terms will be used
interchangeably.
22
Ray D Madoff, ‘Mediating Probate Disputes: A Study of Court Sponsored Programs’ (2004) 38
Real Prop Prob & Tr J 697, 700.
23
Mediation Act 2017.
24
Haneman (n 6) 517.
25
ibid.
26
ibid.
388 Trinity College Law Review [Vol 21]
Mediation is an ADR technique in which a neutral third-party, or
mediator, oversees and aids in the resolution of a dispute.
27
It is a voluntary
process in which the parties have exclusive control over any decisions.
28
Mediation differs from other resolution methods in that the mediator does
not actually impose a decision on the parties.
29
‘[A] mediator [merely]
facilitates communication, promotes understanding, focuses the parties on
their interests, and seeks creative problem-solving to enable the parties to
reach their own agreement.’
30
He does not decide who is right or wrong.
31
Mediators bring value ‘to the dispute by introducing techniques that enable
the negotiators to settle their differences more readily’.
32
A. Role of the Mediator
The appropriate amount of influence that a mediator can exert on the
negotiation process is a subject of disagreement among academics.
33
Professor Riskin, for example, creates a visual framework of potential
mediator techniques.
34
While not explicitly favouring any one approach, he
discusses techniques in which the mediator acts both as a ‘hands-off’
facilitator of communication between the parties, as well as a ‘hands-on’
evaluator of the strengths and weaknesses of the parties’ claims.
35
According
to Riskin, the evaluative mediator acts under the assumption that parties need
direction as to what is appropriate in settlement.
36
In contrast, the facilitative
mediator assumes parties are intelligent enough to work out a solution
27
Madoff (n 22).
28
ibid.
29
ibid.
30
Mary F Radford, ‘Is the Use of Mediation Appropriate in Adult Guardianship Cases?’ (2002)
31 Stetson L Rev 611, 617.
31
ibid.
32
Edward Brunet, Charles B Craver, and Ellen E Deason, Alternative Dispute Resolution: The
Advocate’s Perspective Cases and Materials (4th edn, LexisNexis Group 2011) 211.
33
Madoff (n 22) (stating that ‘[a] great debate rages within mediation circles about the extent
to which a mediator to evaluate, as opposed to facilitate, the resolution of disputes’); Leonard L
Riskin, ‘Understanding Mediators’ Orientations, Strategies, and Techniques: A Grid for the
Perplexed’ (1996) 1 Harvard Negot L Rev 7, 9 (noting commentator’s views on different
mediation techniques while stating that ‘[t]he largest cloud of contention and confusion
surrounds the issue of whether a mediator may evaluate’).
34
Riskin (n 33) 25.
35
ibid 17.
36
ibid 24.
389 Court-Ordered Mediation for Will Contest Disputes [Vol 21]
without much oversight.
37
Riskin looks both to the role of the mediator
within the dispute as well as the scope of the problem under advisement to
illustrate the many ways in which a mediator can aid parties in coming to a
decision.
38
Ultimately, though the role of the mediator is disputed, in order to
conform to the broad range of disputes that are likely to present themselves
over a mediator’s career, he must be able to employ any and all of these
techniques.
39
In one dispute, a mediator may be dealing with very
knowledgeable parties that only require his facilitative influence, while in the
next dispute, he may have parties in their first mediation that would benefit
from a more evaluative approach.
40
‘[T]here are good reasons to think that
most mediators best serve the parties and process by using approaches
reflectively and strategically – that is, as a deliberate response to specific
circumstances and expectations.’
41
B. The Process of Mediation
‘[O]ne of the most attractive features of mediation is that it is a process that
is not fully formed’, and thus may be shaped in a party-specific manner.
42
Though not subject to rigid procedural requirements or an established
structure, mediation typically consists of four stages: (1) the mediator’s
introduction; (2) parties’ opening statements; (3) caucus; and (4) settlement.
43
37
ibid.
38
For a more in-depth discussion of the different mediation techniques and problem-solving
approaches, see generally, Riskin (n 33).
39
Often, however, certain personality traits that the mediator possesses will affect what type of
mediation style he chooses to use. For example, those that are more analytical often gravitate
toward evaluative styles, while those that are more emotional may prefer a facilitative
approach. Sam Glover, ‘How to Pick a Mediation Style’ (Lawyerist, 3 June 2016)
40
Kenneth M Roberts, ‘Mediating the Evaluative-Facilitative Debate: Why Both Parties Are
Wrong and a Proposal for Settlement’ (2007) 39 Loyola U Chicago LJ 187, 191 (discussing the
facilitative versus evaluative approaches to mediation and arguing that to be an effective
mediator, one must embrace both approaches).
41
Thomas J Stipanowich, ‘The International Evolution of Mediation: A Call for Dialogue and
Deliberation’ (2014) 46 Victoria U Wellington L Rev 1191, 1203.
42
Haneman (n 6) 516.
43
Madoff (n 22) 700-1; the stages of mediation mentioned do not take into account the
preliminary process of choosing and meeting with a mediator before the actual mediation
begins. For a more comprehensive discussion of this stage, see Brunet (n 32) 244.
390 Trinity College Law Review [Vol 21]
The mediator will begin the process by describing how mediation
works.
44
Generally, the mediator emphasises that he does not have the
authority to impose a settlement, and that the parties are free to leave the
mediation at any point.
45
The mediator also discusses his presence as an
intermediary to encourage bargaining amongst the parties.
46
Lastly,
mediators typically discuss the evidentiary rules that imply confidentiality in
mediation, as this encourages parties to be more candid in their discussions
with one another.
47
The mediator may also approach the parties about
signing a non-disclosure agreement, to extend confidentiality outside the
bounds of potential subsequent litigation.
48
After the mediator finishes his introduction, the parties are given the
opportunity to summarise their positions.
49
This particular part of the
mediation process is important for both the mediator and the parties. For the
mediator, it provides a chance to fully understand the underlying issues for
resolution. For the parties, it provides what might be the first opportunity for
an uninterrupted dialogue regarding their feelings about the conflict. Often,
‘conflicts escalate because one or both of the parties feel that they have not
had the chance to tell their side of the story.’
50
Next, the mediator works with the parties in an attempt to reach a
settlement.
51
The mediator may do this through correspondence with both
parties in the direct negotiation, or through individual, private meetings with
each party.
52
These private meetings are called caucuses.
53
The mediator will
attempt to ‘frame the issues to be resolved and generate options’ for the
parties to resolve these issues.
54
Through the caucuses, the mediator gains an
insight into the desires of both parties. He obtains a fuller picture of the
emotional and legal underpinnings of the dispute, allowing him to resolve
44
Brunet (n 32) 245.
45
ibid.
46
ibid.
47
ibid; Fed R Evid 408 (disallowing compromise negotiations from being admitted as evidence
in subsequent litigation); Fed R Evid 410 (disallowing things said in failed civil or criminal plea
deals from being admitted as evidence).
48
Fed R Evid 410; this confidentiality aspect will be further examined in Part II, below.
49
Brunet (n 32) 246.
50
Madoff (n 22) 701.
51
ibid.
52
ibid.
53
ibid.
54
ibid.
391 Court-Ordered Mediation for Will Contest Disputes [Vol 21]
misunderstandings, and act as a neutral sounding board to help parties come
to an acceptable resolution.
55
Lastly, the parties may enter into a settlement agreement.
56
Generally,
this will be a compromise that resolves the dispute in a way that appeals to
both parties. It is a uniquely crafted solution that takes into account both
parties’ issues and desires. Given that both parties have a hand in shaping
this solution, they are likely to view the result as fairer, and thus take less
issue with following its terms. Reaching settlement is not mandatory,
however, as both parties are free to leave the negotiation at any time.
57
Once
a settlement is reached, the mediator will put the resolution in writing and
have it signed by the parties so that the agreement becomes binding upon
termination of the mediation.
58
Ultimately, the voluntary, procedurally flexible characteristics of
mediation are what distinguish it from other ADR procedures. Julian, as an
upset, disinherited son bringing a will contest claim, would likely have
benefited from a chance to air his grievances in an environment facilitated
by a mediator. Part II, below, discusses the inherent advantages that these
unique characteristics grant mediation over litigation, specifically in the
context of will contest disputes.
II. Advantages of Court-Ordered Mediation Over Litigation
Sabine Walsh, the President of the Mediation Institute of Ireland, has stated
that:
Mediation is a fantastic method of resolving disputes. Mediation is fast,
cost-effective, confidential and involves direct input from the parties
themselves. In my experience mediation is an incredibly effective tool
for resolving even the most bitter disputes.
59
55
ibid.
56
ibid.
57
ibid; while the fact that mediation can break down or end in stalemate could be seen as a
disadvantage of this method, court-ordered mediation is simply the first step. In the event of
breakdown, the parties are free to continue their lawsuit as if the mediation never happened.
58
ibid.
59
Paul Kirkwood, ‘Should Scotland have a Mediation Act? The Irish Experience’ (Scottish Legal
News, 4 December 2017) < http://www.scottishlegal.com/2018/02/05/blog-scotland-mediation-
act-irish-experience/> accessed 6 February 2018. These benefits have also been recognised by
392 Trinity College Law Review [Vol 21]
Furthermore, given that mediation empowers parties to reach their own
solutions, they may gain emotional as well as legal benefits from the process,
and those emotional benefits may render them capable of continuing an on-
going relationship with the other party.
60
Finally, given the procedural
flexibility of mediation, parties are often able to craft unique solutions to
problems by compromising and creating resolutions that all parties can live
with.
61
A. Cost-Efficiency of Mediation
One benefit of mediation is its cost-efficiency.
62
There are two different costs
under consideration when contemplating the cost-efficiency of mediation.
63
The first is the actual cost of the dispute. Susan Gary notes that ‘research in
family law has shown that mediation costs less than litigation in resolving
divorce cases’.
64
It has similarly been noted that mediation saves money in
child custody cases.
65
The informal process of mediation allows meetings to
occur on a schedule most convenient to the parties, and decisions to be
finalised almost immediately following, if not during, the mediation
process.
66
Not only that, but ‘[t]he costs of litigation, particularly if a case
goes to trial, may be disproportionate to the amount at issue’.
67
The amount
of money involved is not always as considerable as in the Lennon case;
usually ‘family disputes involve property issues of relatively small financial
value’.
68
The ability of mediation to resolve the dispute at a lower cost
preserves the assets within the estate to be distributed among the parties. If
academics; See Susan N Gary, ‘Mediation and the Elderly: Using Mediation to Resolve Probate
Disputes Over Guardianship and Inheritance’ (1997) 32 Wake Forest L Rev 397, 431 and 425.
60
Gary (n 59) 428.
61
Mary F Radford, ‘Advantages and Disadvantages of Mediation in Probate, Trust, and
Guardianship Matters’ (2000) 1 Pepperdine Disp Resol LJ 241, 247.
62
Gary (n 59) 431.
63
ibid.
64
ibid.
65
Jessica Pearson and Nancy Thoennes, ‘Mediation Versus the Courts in Child Custody Cases’
(1985) 1 Negot J 235, 241–42.
66
Radford (n 61) 249.
67
Gary (n 59) 431.
68
ibid.
393 Court-Ordered Mediation for Will Contest Disputes [Vol 21]
litigation costs consume the entire monetary value of the estate, a will contest
dispute would be moot, as there would be nothing to inherit.
The second cost to be considered is the societal cost in relation to the
backlog of the court system. Courts are notorious for their onerous
workload.
69
Probate courts in particular have become increasingly
overwhelmed in the US, as the Baby Boomers approach the end of their
lives,
70
and in Ireland wait times can be as long as 12 months for access to the
Circuit Courts.
71
Court-ordered mediation as a solution will decrease the
docket load of the probate courts, thereby increasing their efficiency.
Academics have noted this benefit of mediation as ‘a means to reduce court
expenses and delays while not increasing costs or time for the parties’.
72
B. Confidentiality
Another benefit of mediation is its confidential nature.
73
In litigated matters,
disputed issues become public as soon as the parties file a complaint.
74
In
contrast, mediation creates a private sphere for parties to speak openly about
their disputes. ‘Privacy benefits probate disputants in two ways: first, by
avoiding public discussion of a family’s “dirty laundry,” and second, by
encouraging disputants to speak freely.’
75
Without privacy and
confidentiality, parties will not speak candidly regarding the emotional
grievances at the heart of the dispute, as the discussion may extend beyond
the initial mediation to subsequent trials, or even become public knowledge.
While in the US, the Federal Rules of Evidence protect anything
discussed in a settlement conference from being admitted as evidence in
court,
76
this does not prohibit parties from discussing the contents of
mediation with family members or other third parties. This dialogue would
undermine the privilege granted by the rules of evidence and result in the
publicising of personal family issues, completely negating the privacy benefit
of mediation. A mediator may thus propose a non-disclosure agreement.
69
Clark (n 21).
70
ibid.
71
Court Services Ireland (n 19) 74.
72
Nancy H Rogers and Craig A McEwen, Mediation: Law, Policy & Practice §5:04, 18.
73
Gary (n 59) 425.
74
Radford (n 61) 241.
75
Gary (n 59) 424.
76
Fed R Evid 410.
394 Trinity College Law Review [Vol 21]
Ireland also sought to combat this problem through the Mediation Act 2017,
which mandates confidentiality in all communications, notes, and records
relating to the mediation.
77
Any of these communications ‘shall not be
disclosed in any proceedings before a court or otherwise’.
78
The Act provides
a limited set of circumstances in which this confidentiality protection will not
apply, such as when disclosure is necessary to implement or enforce a
mediation settlement.
79
Radford has noted that under common law, confidentiality was not
always guaranteed in mediation.
80
However, most states in the US have, like
Ireland, recognised these confidentiality protections as vital, and as a result,
many ADR and state rules mandate confidentiality in mediation and other
ADR proceedings. For example, the Texas ADR Procedures Act mandates that
party communications during the ADR process be kept confidential, and
prohibits testimony regarding the proceeding from any of the participants.
81
Hawaii also provides that ‘[t]he mediator shall not communicate any matters
discussed at the conference to any court. Likewise, parties and attorneys are
prohibited from informing the court of discussions or actions taken in
mediation’.
82
There may be situations in which parties would benefit from the public
forum that litigation provides. For example, when a plaintiff brings a fraud
claim against a large corporation based on underhand or unscrupulous
business practices, the general populace would likely benefit from this
information. However, the issues in dispute in will contest claims are often
private, personal, and even embarrassing. Difficult familial relationships, like
in the Lennon example, may further complicate proceedings.
C. Emotional Benefits
Mediation also provides an opportunity for parties to gain emotional, as well
as legal, resolution from a disputed issue.
83
In the context of will contest
disputes, a court will determine the legal ramifications of lack of capacity, or
77
Mediation Act 2017, s 10(1).
78
ibid.
79
Mediation Act 2017, s 10(2).
80
Radford (n 61) 242.
81
Tex Civ Prac & Rem Code Ann §154.073 (West 1997).
82
Haw R Prob 2.1, App A, Rule 7.
83
ibid 425-26.
395 Court-Ordered Mediation for Will Contest Disputes [Vol 21]
the degree of undue influence that may void certain provisions of the will,
based on statutes.
84
However, there might also be an emotional aspect to the problem. It
has been commented that ‘people [are] often very emotional, especially very
angry, when talking to interviewers about family disputes over
inheritance’.
85
Radford has noted that ‘[d]isputes in the context of probate,
trust, or guardianship law may result in the tangible manifestation of long-
standing family problems (for example sibling rivalry, perceived favouritism,
jealousy over disapproval of a marriage or other relationship)’.
86
Sometimes
these emotional issues are the only reason parties bring these claims in the
first place.
87
Often, the legal issues are a means to an end in airing the
emotional grievances.
88
In mediation, parties are given the opportunity to summarise their
positions.
89
Often, this is the first time parties have been able to present their
unfiltered, uninterrupted opinion on the disputed issue.
90
Permitting each
party to tell his side of the story to a mediator and the other party allows for
a free and open discussion of emotional issues that is not present in the
procedural confines of litigation. In a trial, the judge may only hear from
counsel representing either party, unless the plaintiff or defendant choose to
take the stand as witnesses. Even then, parties are limited in the amount they
are able to speak emotionally about the issues, as their responses are based
on questions asked by either counsel. Responding to directed questions is
completely different, and less emotionally fulfilling, than presenting an
unfiltered opinion on the disputed issue.
Admittedly, these procedural aspects of court may come with their own
benefits. For example, there is no possibility, as there is in mediation, of a
breakdown in communication or deterioration into conflict. However, court-
ordered mediation embraces those benefits as well. In instances in which
there is such a breakdown, parties can proceed with the case as initially filed,
84
John S Kiely, ‘Litigating a Will Challenge of Undue Influence or Lack of Capacity’ (2015)
NJLJ or-
lack-capacity> accessed 10 February 2018.
85
Sandra L Titus, ‘Family Conflict over Inheritance of Property’ (1979) 28 Fam Coordinator
337, 343.
86
Radford (n 61) 243.
87
Radford (n 61) 243.
88
ibid.
89
Brunet (n 32) 246.
90
ibid.
396 Trinity College Law Review [Vol 21]
with all the benefits litigation has to offer. Court-ordered mediation, if
successful, simply offers the parties the opportunity to avoid litigation.
In the context of the emotional benefits of mediation, utilising court-
ordered mediation is vital, given the emotionally vulnerable state of those
bringing will contest claims. Parties bringing a will contest claim are likely
still grieving over the loss of their family member.
91
‘The strong emotions
surrounding a death ... may well hamper the parties’ ability to think clearly,
either in the context of litigation or of mediation.’
92
Therefore, angry parties
may be quick to file a claim in court, hoping that a lawsuit will resolve the
grief of their loss, and avoid or overlook mediation. Court-ordered mediation
is necessary to force parties to stop, think, and discuss the emotional issues
present in will contest disputes (such as grief, anger, and frustration) through
mediation before placing them in an adversarial climate. With court-ordered
mediation, parties will be able to avail themselves of the emotional benefits
even when their grief blinds them to its advantages. The method is more aptly
designed for dealing with, and ultimately resolving, the potential emotional
underpinnings in will contest cases.
D. Desirability of an On-Going Relationship
Often, will contest disputes ‘involve families whose lives together could be
irreparably shattered by bitter and prolonged litigation’.
93
Mediation has the
ability to maintain ongoing relationships in a way that is not often present in
litigation.
94
It is a more collaborative process in that the parties work together
to come to a solution, facilitated by the mediator.
95
This allows parties to
communicate directly with one another about their issues, rather than
through the judge or counsel. Also, resolving a present dispute through
91
Radford (n 61) 244.
92
ibid.
93
Radford (n 61) 245.
94
Donald T Saposnek, Mediating Child Custody Disputes (Josey-Bass Inc Publishing 1983) 17, 19
(noting an increased degree of cooperation among the parties after mediation); Gary (n 58) 428.
95
Gary (n 59) 428 (stating that working together leads to two main beneficial results, first ‘the
process increases communication between the parties’ and second, ‘the parties may be better
able to work with each other to solve future problems’).
397 Court-Ordered Mediation for Will Contest Disputes [Vol 21]
mediation may put the parties in a mind-set to compromise in the future,
which may repair, rather than ‘exacerbate existing fissures in the family’.
96
E. Flexibility in Procuring Unique Solutions
The last major benefit of mediation is the ability to form unique solutions.
97
‘Mediation allows parties the opportunity to design solutions that meet their
needs, while not necessarily adhering to technical legal principles.’
98
These
solutions might include division of property, monetary compensation, or
consideration of parties’ non-legal interests.
99
The flexibility in developing a
solution satisfies the parties, in that they perceive any resolution agreed upon
in mediation as ‘fair’. According to Susan Gary, will contests are brought
because the scheme of the will does not conform with the contestant’s
concept of ‘fairness’, not necessarily because he sincerely believes that the
testator was unduly influenced.
100
Therefore, this element of fairness, while
not easily delineated, is adequately addressed through mediation, a forum in
which both parties have a hand in crafting the outcome, unlike in litigation,
which ‘assumes a result in which only one party is successful’.
101
III. Current Solutions Promoting Mediation in Probate
Some US states and other countries, such as Ireland, have already realised the
benefits of mediation in probate, and established systems with which the
litigation procedure can either be complemented or completely superseded
by mediation in the broader probate context. The jurisdictions discussed
below are Ireland, which provides for an optional court-referral mediation
programme; Texas, that has implemented a court-referral mediation
programme similar to Ireland’s; Georgia, that has implemented a court-
ordered mediation programme for all probate disputes; and finally, Florida,
that has opted for a combination mediation-arbitration approach.
96
ibid (stating that mediation promotes cooperation while ‘[l]itigation, in contrast . . .
encourages parties to become entrenched in their positions and to view a successful outcome
as a win for one party and a loss for the other’).
97
Radford (n 61).
98
ibid.
99
Gary (n 59) 429.
100
Gary (n 59) 416–417.
101
Radford (n 61).
398 Trinity College Law Review [Vol 21]
A. Mediation under Irish Law
In 2017, Ireland enacted legislation which provides a framework and formal
mechanism for solving disputes through mediation.
102
The Act is ‘reflective
of “an evolving State and judicial policy which seeks to encourage the
increased use of ADR wherever possible.”’
103
The statute has three main
objectives: (1) to protect the welfare of consumers of mediation services; (2)
to utilise mediation as an efficient way to administer justice; and (3) to ensure
the essential characteristics of mediation are preserved.
104
The Act itself provides a comprehensive description of the mediation
process and imposes various duties and obligations on solicitors and, where
appropriate, barristers. Under the statute, solicitors are required to inform
their clients that mediation is a reasonable alternative to litigation, and advise
them of its benefits and voluntary nature.
105
The Act also empowers the court
to ‘invite the parties to consider mediation as a means of attempting to
resolve the dispute’.
106
Even before the 2017 Act, mediation had become the preferred method
of ADR in Ireland.
107
It has been noted that there was an increase in litigation
in Ireland during the Celtic Tiger years.
108
The increased demand on the civil
courts resulted in further congestion, and mediation was used as an
alternative to alleviate backlog in the courts.
109
Passage of the Mediation Act
102
Mediation Act 2017.
103
Garret Sammon, ‘The Mediation Act 2017’ (2017) 58 Irish Jurist 106, 120 (noting that The
Act ‘seeks to subsume mediation within the civil justice system and legitimise it as just another
equally legitimate, if not preferable, dispute resolution mechanism’).
104
ibid.
105
Mediation Act 2017, pts 2 and 3.
106
Mediation Act 2017, pt 4.
107
Caitriona Heffernan, ‘Mediation in Ireland: Current Trends, Future Opportunities’
(Continuous Professional Development Seminar, 1 April 2011) <
https://www.cpdseminars.ie/mediation/mediation-in-ireland-current-trends-future-
opportunities/#_ftn3> accessed 6 February 2018.
108
Eoin Pentony, ‘The Development of Mediation in Ireland: Lessons from Other Jurisdictions’
(Continuous Professional Development Seminar, 15 June 2010) <
http://www.cpdseminars.ie/articles/mediation-ireland-lessons-from-other-jurisdictions/>
accessed 6 February 2018.
109
ibid; Doug Jones, ‘Looking Back – Moving Forward’ (2016) 1 CEELJ 26 ([Mediation] was
approached by counsel with scepticism in its early years, but its effectiveness in resolving
disputes and the high levels of party satisfaction associated with the outcomes has led to a
399 Court-Ordered Mediation for Will Contest Disputes [Vol 21]
2017 simply codified and clarified the practice of promoting mediation ‘as an
alternative to the adversarial nature of litigation’.
110
However, it is important to note that the scope of Ireland’s statute does
not extend beyond mere encouragement to participate in mediation. The
obligations of solicitors and the court under the statute are simply to inform
the parties involved of the benefits of mediation. The decision to enter
mediation remains with the parties themselves. It has been commented that,
while the purpose of the legislation is ‘to promote mediation as a form of
dispute resolution, [t]he Act does not rewrite the rules on mediation’ to make
it mandatory. It simply provides some innovations, ‘which can encourage
mediation to exist alongside litigation’.
111
While it is clear from this comprehensive mandate that Ireland
recognises the benefits inherent in mediation, the issue is that the system
implemented is generally informational and not obligatory. In the context of
will contest cases, emotional parties may petition the court enough as a result
of their grief that the court will choose to ignore mediation as an alternative
in favour of trial. Thus, in order to ensure emotional parties are able to take
advantage of the benefits of mediation, they must not only be encouraged,
but mandated to at least attempt mediation before the court will consider
their dispute through litigation.
B. Mediation in Texas
In 1987, the Texas legislature passed the Alternative Dispute Resolution Act
(ADR Act) in an attempt to ‘encourage the peaceable resolution of
disputes’.
112
This framework gives judges the ‘discretion to refer a case to one
of several ADR procedures, including a county-established ADR system, a
private dispute resolution organisation, or other non-judicial and informally
conducted forums’.
113
Due to this ‘state-wide effort to encourage mediation’,
the Probate Court in Dallas, Texas created ‘one of the first formal
willingness amongst counsel to respect the integrity of the process and to consider mediated
outcomes wherever possible’).
110
Heffernan (n 107).
111
William Martin Smith, ‘The Mediation Act’ (2017) 22 The Bar Review 163.
112
Tex Civ Prac & Rem Code Ann §154.002 (West 1997).
113
Madoff (n 22) 702.
400 Trinity College Law Review [Vol 21]
programmes encouraging the mediation of probate disputes in the
country’.
114
However, the scope of Texas’ programme, like Ireland’s, does not
extend beyond mere encouragement to participate in mediation, at least in
the probate context. Although a general ADR statutory scheme exists in
Texas, no laws or court programmes are geared specifically toward the
resolution of probate disputes.
115
The widespread acceptance of ADR
procedures in Texas has, however, resulted in the regular referral of probate
disputes to mediation.
116
The statutory scheme of the ADR Act allows courts
to dictate fees as a result of the services of the mediator, but does not integrate
the mediation and the litigation process.
117
According to Professor Madoff,
who conducted a survey of state ADR programmes, the parties and mediator
generally develop a payment plan that involves a flat daily fee, ‘which can
range from $750 to $2,500 per side’, much more than programmes in which
the court orders mediation, and therefore has a monetary compensation
agreement with the mediators.
118
Texas, through its comprehensive system of mediation and other ADR
referrals, gives parties multiple options to solve disputes without ever
entering the court system. However, these systems are truly just referrals, or
optional methods open to the judge’s discretion. Although this approach lays
out viable ADR options for parties, it spans too broad a scope, at least in the
will contest context. Arbitration is a more formalistic process that resembles
litigation in its rigidity. Mediation is particularly apt for will contest disputes
in its flexibility in negotiating unique solutions, something that arbitration
lacks. Parties may also petition the judge, and be adamant enough in their
efforts as a result of their grief that the judge will ignore ADR alternatives in
favour of trial. The final issue with Texas’ approach is that it is not cost-
efficient, both in the forms of monetary costs, as well as the time invested by
the judge to determine the proper procedure for the case moving forward
(whether to refer it to arbitration, mediation, etc).
114
ibid.
115
ibid.
116
ibid.
117
Civ Prac & Rem §154.054.
118
ibid; Madoff (n 22) 702. See below for a discussion of an integrated court-ordered mediation
system in Fulton County, Georgia.
401 Court-Ordered Mediation for Will Contest Disputes [Vol 21]
C. Court-Ordered Mediation in Georgia
Atlanta, Georgia, is known for the Fulton County Probate Court. This Probate
Court has mandated mediation for all disputes in probate since 1990.
119
In the
early nineties, the Georgia Supreme Court created a Commission to research
the beneficial effects of ADR, and as a result of the research, established the
Alternative Dispute Resolution Rules.
120
These rules place the responsibility
on the court to maintain the integrity of the mediation process.
121
Therefore,
mediators are ‘chosen from [those] registered by the Georgia Office of
Dispute Resolution’.
122
The programme in Fulton County handles a broad expanse of probate
disputes, including wills, estates, and guardianship of adults, and ‘sends all
will and estate disputes to mediation’.
123
Parties file a claim with the court
and are immediately sent to mediation with an order stating that they must
attempt negotiation in good faith.
124
Parties are generally threatened with
dismissal of their case if they refuse to attempt mediation at all.
125
Unlike
Texas and Ireland, Georgia truly mandates that individuals air their
grievances in mediation before the court will ever consider their claim in
litigation. However, parties are always free to litigate should settlements
break down, provided there has been a good-faith attempt at mediation. This
method is the most appropriate for addressing will contest disputes.
Once the parties have participated in mediation, the court is sent
written confirmation that they have fulfilled their obligation.
126
Given the
public funding of mediation in Fulton County, the courts have a relationship
with the Justice Centre of Atlanta that provides mediation at no cost to the
119
ibid 707.
120
Ga Ct R & P, ADR R I-VII (enacted on 17 Jan 1993, effective 22 Oct 1992, as amended by the
Georgia Supreme Court, 24 May 1999); Georgia Court-Connected Alternative Dispute
Resolution Act, Ga Code Ann § 15-23-1 (2002).
121
Ga Code Ann, app A §9.1.
122
ibid.
123
Madoff (n 22) 708 (stating that guardianships are not generally subject to mediation because
of a concern in protecting the adult subject to the guardianship).
124
ibid.
125
ibid.
126
ibid.
402 Trinity College Law Review [Vol 21]
parties who have filed a dispute.
127
‘Against a backdrop where either judicial
or jury making is available when mediation fails, Fulton County reports a
sixty-five percent success rate in mediating settlements of all contested
matters.’
128
This court-ordered mediation programme allows parties unfamiliar
with mediation to avail themselves of the benefits of ADR just by filing a
claim in court, which is the traditional avenue for resolving disputes. It
creates efficiency in that it does not overload the courts, as probate cases are
immediately referred to the Justice Centre of Atlanta. It is also of no cost to
the parties involved, given the integrated relationship of the court with the
mediation services at the Justice Centre.
Attorneys that practice in Fulton County also comment that the most
positive aspect of this programme ‘was that mediation gets the parties
communicating, and this alone may settle some disputes’.
129
Given that will
contest disputes ‘often involve complex family dynamics and personal issues
that are not effectively handled or resolved via the court system’, the
negotiation and communication that stems from the court-ordered mediation
is vital.
130
D. Mediation-Arbitration in California, Los Angeles County
The California legislature, in 1997, implemented a statute to provide a more
formal mechanism of solving probate disputes through ADR.
131
The rules
state that once parties have their first hearing in court, they must also submit
a statement discussing their willingness to undergo some form of ADR in the
event that the issues are not solved through an initial mediation process.
132
There is the possibility of sanctions if the parties do not comply with the
initial referral to mediation, but Professor Madoff in his interviews with
practising attorneys confirms that the threat of sanctions is rarely ever
127
While this does not apply to any person who has a probate dispute, any party that files first
with the court in Fulton County will be referred to the Justice Centre for Atlanta and no longer
have to find and pay a private mediator; ibid.
128
Chester (n 15) 182.
129
Madoff (n 22) 710.
130
ibid.
131
Cal LA Super Ct R 10.200-10.210.
132
ibid.
403 Court-Ordered Mediation for Will Contest Disputes [Vol 21]
enforced.
133
Once the parties have mediated and failed to resolve the dispute,
the court may then recommend ‘(1) schedule[ing] the matter for a mandatory
settlement conference, (2) assign[ing] the case for one of the binding ADR
methods contemplated by the parties in their [initial] statement, or (3)
schedul[ing] the matter for trial’.
134
Through this method, Los Angeles County provides an outlet for
parties to initially mediate, and then, assuming the parties have agreed to it,
engage in binding arbitration. This hybrid form of ADR is known as ‘med-
arb’, and attempts to combine the benefits of mediation explained in Part II,
above, with the binding and definitive aspects of arbitration. Those that argue
in favour of med-arb advocate that the threat of imposition of a binding
decision will incentivise parties to come to a solution through negotiation.
135
Ultimately, however, med-arb does not provide any increased
incentives to settle than a mediation procedure followed by traditional
litigation (which also imposes a binding decision), as is the case for court-
ordered mediation. It merely increases costs and specialisations by requiring
a mediator, an arbitrator, and a judge that must refer the parties to mediation
at the outset. Although this approach lays out viable ADR options, it, like
Texas, also spans too broad a scope. The ability to engage in many different
forms of ADR only serves to exacerbate the increased cost to find specialised
parties that can field these types of disputes. To some degree, Ireland solves
this problem, by outlining claims that should be exempted from mediation,
thus narrowing its application.
136
However, Georgia’s programme ultimately
provides the most tailored application, identifying will contest and probate
disputes as particularly apt for mediation, and ensuring parties take
advantage of the benefits described above.
IV. Advocating for Court-Ordered Mediation in Will
Contest Disputes
Even though other jurisdictions have implemented court-ordered mediation
programmes, and scholars have identified multiple benefits in its methods,
there are still those who criticise the implementation of court-ordered
133
Madoff (n 22) 710.
134
Madoff (n 22) 712.
135
ibid.
136
Mediation Act 2017, pt 2.
404 Trinity College Law Review [Vol 21]
mediation for will contest disputes. By responding to scholarly criticisms of
court-ordered mediation, below, this article aims to rebut any further
concerns as to the best method for resolving will contest disputes.
A. Responding to Criticisms of Court-Ordered Mediation
Victoria Haneman denounces court-ordered mediation as inappropriate in
the context of will contest disputes. Her arguments against court-ordered
mediation are those advocated by most scholars: (1) forcing parties to
mediation through a court-order undermines the ‘consensual and
cooperative nature of the process’ and (2) the process of mediation
undermines the underlying substantive law of will contests, which aims to
effectuate the testator’s intent. She comments that ‘[o]ur concept of
inheritance is built upon freedom of testation, namely, the right to control
the disposition of one’s life possessions and wealth at death’.
137
The first criticism is addressed through the inherently emotional nature
of will contest disputes. Parties that are fraught with grief will not always be
aware of the benefits of alternatives to litigation like mediation. Therefore,
when parties are in too much pain and overwhelmed by their grief to take
advantage of this outlet, establishing a court-ordered mediation programme
will allow judges and mediators to present the benefits and aid the grieving
parties. The emotional nature of these disputes is exactly the reason they are
so well-suited for mediation, and forcing parties to initiate the process merely
opens a forum for dialogue. Once the parties are sitting at the negotiation
table, they are completely in control of any discussion, resolution, and
compromise that results from the mediation.
Also, assuming parties make an effort in good faith to negotiate a
settlement, they are free to leave the process at any time, and continue
seeking a remedy through litigation. The decreased cost that would result
from parties resolving their dispute in mediation is worth the extra step of
litigating if parties are unsuccessful in mediation. If nothing else,
communicating and creating an open dialogue in the mediation may allow
parties to limit the scope of the claims that end up at trial, contributing
further to the cost-efficiency of court-ordered mediation.
To the second point, while effectuating the testator’s intent is the noble
and presumed goal of the law of wills, ultimately, even the court may not
137
Haneman (n 6) 521–26.
405 Court-Ordered Mediation for Will Contest Disputes [Vol 21]
always measure up to that standard.
138
For example, most will contest
disputes settle, engaging in compromise in the same way as a resolution in
mediation. The reality is that these out-of-court settlements manifest the
same disregard for the testator’s intent that concerns Haneman in the context
of mediation.
139
Further, application of rigid evidentiary rules, while in place
to protect the credibility of information, may lead to the denial of extrinsic
evidence directly declaring the testator’s intent.
140
It is true that the testator
cannot sit at the negotiating table, and thus the parties and the mediator may
never know exactly what the testator desired. Ultimately, however, a judge
with no relationship to the testator encounters the same difficulties in
discerning testator’s intent.
Haneman’s argument rests on the fact that other forms of resolution
would take into account the testator’s intent in a manner that is more
consistent with the law of wills, which is simply not the case. Will contest
claims like undue influence or insane delusion are often abused by courts in
order to come to what the court determines is the most ‘logical outcome’,
rather than the outcome that most effectuates the testator’s intent.
141
Courts
have been critiqued for contorting the doctrines in order to award property
to close family, regardless of testamentary evidence to the contrary, rather
than adhering to a true and impartial application of the doctrine.
142
For
example, in the case of In re Estate of Reid, a seventy-eight year old widow,
Ms Reid, befriended a twenty-four year old man of no relation, Mr Cupit.
143
They grew close, saw each other frequently, and Reid ultimately adopted
Cupit, telling everyone in her community that he was a good son to her.
144
She later executed a deed and will in Cupit’s favour.
145
Upon her death, the
138
Martindale v Bridgforth 98 So 800 (Ala 1929).
139
Johnathan D Glater, ‘Study Finds Settling Is Better Than Going to Trial’ The New York Times
(7 August 2008) accessed 14
January 2018.
140
Martindale (n 138); The Court held that Alabama will not consider extrinsic evidence of a
testator’s intent to reform a will unless it is resolving a latent ambiguity, or an ambiguity that
is present in the application of a will.
141
Here, ‘logical outcome’ refers to the general assumption that a parent wants his children to
inherit everything, or that a person generally wants his family to inherit his property; Carla
Spivack, ‘Why the Testamentary Doctrine of Undue Influence Should be Abolished’ (2010) 58 U
142
143
ibid 3-4.
144
ibid.
145
ibid.
406 Trinity College Law Review [Vol 21]
court ignored all evidence that her bequests were legally sound and
invalidated the adoption, the deed, and the will.
146
The judgment made clear
that the court disapproved of the relationship between Cupit and Reid, yet all
witnesses to the relationship who testified before the court spoke only of how
Reid cared for Cupit as the child she never had.
147
Even though Reid was
advised by independent counsel when she executed the adoption, will, and
deed, the court determined that she was unduly influenced into making the
decision, simply because she chose not to bequeath her property to other
family members of close friends.
148
Given all of these issues, it is likely that effectuating the testator’s
intent is a goal in principle, but perhaps not always in practice.
Conclusion
This article concludes that court-ordered mediation is the best method for
resolving all aspects of will contest disputes. Will contests are particularly
apt for resolution by mediation rather than litigation given the (1) cost-
efficiency, (2) confidentiality, (3) emotional benefits, (4) ability to sustain
relationships, and (5) flexibility in procuring unique solutions that mediation
offers. Ultimately, however, given the highly emotional climate that
surrounds a will contest dispute, providing mediation as an option for parties
to affirmatively avail themselves of is not enough. A court-ordered mediation
programme is necessary to grant families and parties that are potentially
angry and grief-stricken the ability to stop, think, and process the emotional
issues inherent in the legal disputes, ultimately allowing them to come to a
resolution all parties deem ‘fair’.
Abraham Lincoln once said ‘[d]iscourage litigation. Persuade your
neighbours to compromise whenever you can. Point out to them how the
nominal winner is often a real loser—in fees, expenses, and waste of time’.
149
Julian Lennon recognised the futile effort of fighting a long court battle with
Yoko Ono, but not before initiating a suit that made his family’s private
affairs a topic of public discussion for years to come. State implemented
146
ibid.
147
ibid.
148
ibid.
149
Peter Lovenheim, Mediate, Don’t Litigate: How to Resolve Disputes Quickly, Privately, and
Inexpensively—Without Going to Court (McGraw-Hill 1989) 3.
407 Court-Ordered Mediation for Will Contest Disputes [Vol 21]
court-ordered mediation programmes would have saved him the time,
money, and grief, keeping his dirty laundry in the hamper where it belonged.
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