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!

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: https://casetext.com/case/breslin-v-breslin-3

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.