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!

In conflict resolution, there are hard negotiators and soft negotiators. Hard negotiators are the ones who take very aggressive positions, demanding sometimes more than they’d get on their best day in court, and making only minor concessions as the mediation progresses. Hard negotiators often refuse to explain the reasoning behind their positions, and they rebuff discussion of any fairness standard in determining the possible terms of an agreement. They don’t discuss their BATNA (Best Alternative to a Negotiated Agreement), at least not with the other parties or, in most cases, the mediator. They will look you in the eye and say that an offer is their “last and best”, even when it may not be. They will sometimes make a show of threatening to leave the mediation. In one recent case, a hard negotiator refused to give us a lunch order, insisting that the matter would either be settled on his terms or impasse before lunch. (It wasn’t, and he was hungry.)

The mediation gurus will tell you that the way to deal with hard negotiators is to change the game. They warn against going toe to toe with hard negotiators, just as you would avoid trying to match move for move in jiu-jitsu. Instead, these top mediation professionals advise that you should redirect a hard negotiator by calmly and consistently engaging in “principled negotiation”, which contemplates that the parties are aligned in reaching a resolution based on a fair standard which satisfies the main interests of the parties.

Yes, principled negotiation is the ideal. But sometimes — perhaps more often than not — hard negotiators cannot be dissuaded from their tactics, even by very astute and experienced mediators. (Changing the game to principled negotiation will be discussed in its own blog post sometime soon.)

So what to do when faced with the intransigent hard negotiator? Here are a few ideas.

  1. Change the goal. In horse training, people have to accept that a human cannot overpower a 1200 pound horse. So if a horse refuses to, let’s say, move to the left, a horse trainer may instead work on moving the horse to the right, or even backwards. Once you get the horse moving, he is more likely to move in the direction you want to go, even if you have to circle around to get there. Dealing with hard negotiators can utilize the same approach; instead of trying with all your might to get direct movement, try getting movement in some other direction, i.e. on a different point, a different framework for resolution, or a different approach to resolution altogether.
  2. Focus on your BATNA and improve it if you can. Our last blog post discussed the importance of each side’s BATNA. You can only combat a hard negotiator by the knowledge of your Best Alternative to a Negotiated Settlement, and the better your BATNA, the stronger your negotiating position will be. In one recent case, a trustee decided that her BATNA was to resign as trustee, and when met with hard negotiators, she pulled the cord and jumped. Her BATNA was better than the terms of what she was offered.
  3. Adjourn mediation. Sometimes a hard negotiator needs to take some hits in discovery or motion practice. Sometimes you need some additional information, or an expert witness, or an accounting or appraisal, to be able to move the hard negotiator off an unreasonable position. There is no disgrace in adjourning mediation until a later date so that you are on better (more equal) footing.
  4. Ask a lot of open, genuine questions. Try to disarm the hard negotiator by digging to find out the reasoning behind an offer. While not all of your questions may be answered, just the act of asking questions changes the dynamic from one which is combative to one where there is renewed focus on what is behind the parties’ positions. This is part of the principled negotiation concept, but it stands alone as its own method as well.
  5. Enlist the mediator’s help. A skilled mediator should seek ways to help the parties progress toward settlement, not just act as a conduit of offers and counter-offers. Point out your concerns about the other side’s negotiating tactics to the mediator, and ask her if she has ideas to get the mediation on track. One possibility, if the timing is right, may be for the mediator to suggest a bracket, which is a range within which a settlement would be agreeable to both sides. Another is to think about some creative structures and options which move the negotiation down a different path. Or, the mediator may have to spend time engaging the party on the other side about the reasons why settlement is usually a better option than litigation. On rare occasions, the mediator may need to speak with the hard negotiating attorney to determine whether that attorney is intentionally blocking the settlement process.

Mediators and advocates often say at some point during mediation something like the following: A good settlement is one where everyone is equally unhappy. I admit I used to say this in my mediation openings. But that was before I became a student of mediation, and before I began to study the works of William Ury, author of Getting Past No and co-author of Getting To Yes. Now, instead, I say in my mediation openings that a good settlement is one that is better than the party’s BATNA.

BATNA stands for Best Alternative To a Negotiated Settlement. It is what you need to know in order to evaluate any settlement proposal. This is because you are not measuring a settlement proposal against your proposal — that is artificial and unproductive when your settlement proposal has been rejected. You are instead comparing any settlement proposal on the table to your BATNA — your Best Alternative To a Negotiated Settlement — so that you can decide whether to accept or reject that proposal. You must know your BATNA in advance, and put yourself in a position so that you have the strongest BATNA, in order to enter the mediation process with strength and negotiating power.

For example, if there is a mediation of a breach of duty case between a trustee and a trust beneficiary, the trustee may evaluate her BATNA as proceeding with a trial where she believes she has a better-than-fair chance of prevailing. She can do things in advance to improve her BATNA, such as hiring excellent counsel and making sure she has a good expert witness, if appropriate. But the trustee’s BATNA must include consideration of the cost, time and risks involved in litigation. It must include consideration that she may lose the case and face a surcharge damages award. When compared to her BATNA, the trustee may be willing to consider a settlement which has her paying a portion of her own legal fees, or giving up compensation, as a better option than her BATNA which includes significant personal risk.

The litigating beneficiary’s BATNA may also be to proceed with litigation, with the beneficiary acknowledging that if he prevails, the damages award will be paid to the trust and not to him personally. If the beneficiary’s real interest is in putting money into his pocket now, he may evaluate a settlement proposal which has him getting cashed out, even at a discount, as better than his BATNA. Or, he may view the trustee’s willingness to nominate her replacement (if the trust allows) as better than a BATNA where even if the beneficiary succeeds in removing the trustee, he is still stuck with an unfriendly successor fiduciary.

Evaluation of a party’s BATNA, and the opposing party’s BATNA, seems deceptively intuitive and basic. However, many attorneys and clients in trusts and estates mediation have not put any thought whatsoever into what their next best alternative to settlement might be. In one recent mediation, a discussion about a trustee’s BATNA lead her to reject an agreement which kept her tied up with the other parties, and instead to simply resign as trustee without an agreement. In another mediation, one party’s knowledge of his BATNA — a good chance at winning a summary judgment motion disposing of the entire case, but at great personal sacrifice for him to be able to afford the legal fees to get there — lead that party to be able to reach a favorable settlement.

Especially in trusts and estates mediation, identifying a party’s BATNA requires knowledge of the applicable law, understanding of the testamentary instruments, and experience in litigating T&E disputes. Spend the time before mediation to identify and discuss your client’s BATNA and the other side’s BATNA. This will give your client the ability to properly evaluate all settlement offers at mediation, and it will give you, the party’s attorney, an opportunity to contribute in a meaningful way to a positive outcome.

You have to love an appellate decision that starts off like this: “The legal historian Frederic William Maitland is reputed to have said, ‘The law is a seamless web.’ He didn’t.” Breslin v. Breslin, 62 Cal. App. 5th 801 (Cal. Ct. App. 2021)(footnote omitted). For a copy of the decision:

The Breslin case is alarming. In Breslin, a decedent, Don Kirshner (not the Rock Concert guy, who died in Florida with his own messy estate), left an estate valued at $3 to $4 million, no surviving spouse or children, and a bungled estate plan. The charities were named on an Exhibit A to the trust which couldn’t be found. However, there were notes in the estate planning binder listing 24 charities and what appeared to be handwritten percentages. The trustee, Breslin, filed a petition to determine beneficiaries of the trust, providing notice to each of the charities. Only a few of the charities filed responses to the petition. The probate court ordered all interested parties (including Kirshner’s intestate heirs) to mediation and issued a notice of mediation, which was served (by one of the charities) upon all of the interested parties. The notice included a warning: “Mediation may result in settlement of the matter …. Non-participating persons or parties who receive notice of the date, time and place of the mediation may be bound by the terms of any agreement reached at mediation without further action by the Court or further hearing.”

Only five of the charities and the intestate heirs attended the mediation. A settlement was reached which excluded the non-participating charities from receiving any portion of the trust. One of the charities filed a petition for court approval of the settlement, which was served on all interested parties. The non-participating charities objected.

The probate court approved the settlement over the excluded charities’ objection, and the Second Appellate District in Ventura County affirmed. The court also rejected claims that Breslin, as trustee, breached a duty to the excluded charities and that the order approving settlement was void due to extrinsic fraud.

So what is the takeaway? If you’re an attorney, you should make sure that your beneficiary or claimant client’s rights are protected and that legal proceedings which may impact those rights are closely monitored. Don’t assume that someone else with the same or similar standing will cover it for you or your client. As a mediator I have handled plenty of mediations where one or more interested parties sit it out; it appears that decision could have major consequences. You can’t win it if you’re not in it.