Mediation Process

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I.  Initial Confidential Conversations

The process begins with a call or e-mail to the mediator from one or more possible parties or their counsel, after which the mediator will schedule a brief (15 minute), confidential telephone conversation with each party or counsel.

The purpose of each initial call is for the mediator to (a) briefly describe the mediation process used by the mediator, (b) confirm that the party understands that the mediator's purpose is only to facilitate a process and not to provide legal advice or decide how the dispute should be resolved, (c) hear a brief, confidential summary of the party's or counsel's position and interests to be addressed in a mediation, including any court orders or referrals for mediation that may pre-define the scope, and (d) ascertain whether the party or counsel considers the process would be helpful in addressing those positions and interests.  There is no charge for the Initial Confidential Conversations.

II. Capacity Determinations Are 

Beyond the Scope of Mediation  

 The role of a mediator is to facilitate communications and understanding among competent parties, not to make determinations of the capacity of a party to enter an agreement to mediate, participate in a mediation, or enter a settlement agreement on completion of the mediation.  If capacity of a party emerges as a central issue during the Initial Confidential Conversations, the mediator will decline mediating the dispute until capacity has been legally determined, or the party is represented by counsel or a Guardian ad Litem (GAL).  

III.  Agreement to Mediate

If each party, counsel or GAL has agreed during the Initial Confidential Conversations that the mediation process is likely to be helpful in addressing the interests in dispute, the  mediator will send to each party, counsel or GAL a draft Agreement to Mediate, for review and signature by each party, counsel, or GAL.  

(If any one party or counsel does not agree to mediation following the Initial Confidential Conversation, or the mediator declines to mediate until capacity of a party has been legally determined, the mediator will send a confidential e-mail to each party or counsel simply stating that all proposed parties and counsel did not agree to the proposed mediation, and the mediator's file is therefore closed.) 

When all Agreements to Mediate have been returned to the mediator along with each party's portion of the retainer, the mediation will be scheduled, and the mediator will send to each party and counsel a Pre-mediation Questionnaire, requesting each party and counsel to specify their goals, concerns, and specific issues they want to address, and return the Questionnaire to the mediator seven (7) days prior to the scheduled mediation.

IV.  Defining the Scope of Mediation

The first collaborative, consensual step in the Mediation Process is to involve all necessary parties in defining the scope of the mediation, with the mediator's concurrence, in order to provide a structured framework for the mediation to begin.  This step is particularly crucial in estate and probate matters, in which various parties and interests may be involved, and the parties may agree that some, but not all, of the issues are to be included within the scope of mediation.  For example:

• The parties may agree that financial accountings and distributions of real property are not at issue, but disagree over distributions of particular heirlooms or other real property.

• Some parties may think or feel that the Personal Representative of an Estate is not providing all the information they need, or may disagree with the information they have been provided.

•  Wounded feelings and lack of information are often bigger barriers to resolution than financial interests.  Facilitated communication among parties, may go a long way toward improving present and future relationships among family members.  

V.  The Mediation

The mediation session usually begins in joint session with an introduction of the process by the mediator. Each party is then given an opportunity to express their positions and interests, in either the joint session or individual private meetings (called caucuses), as preferred by the parties.  During this process, the mediator assists the parties in clarifying interests, discussing areas of disagreement, identifying options for possible solutions, and if appropriate, developing a Settlement Agreement.

Throughout the process, the mediator will focus on the parties’ perceptions, their interests, and concerns. Because the mediator’s emphasis is on the parties and not the law, attorneys (if present) can be helpful in discussing legal principles and rights that may be involved. A common understanding of what is likely to occur if the case is litigated can have a positive influence on the mediation.

There are a few potential outcomes of a mediation:

• Full Agreement: If a settlement is reached on all of the issues, the mediator may assist the parties in drafting the Settlement Agreement.

•  Partial Agreement: If a settlement is reached on part of the issues, the mediator may assist the parties in drafting a Settlement Agreement on those issues.

• No Agreement: If no agreement is reached, your matter will be in exactly the same position as it was prior to the mediation.

• Additional meetings: If additional mediation sessions are needed, the mediator will assist the parties in scheduling those meetings. 

VI.  Online Mediation

The onset of the COVID-19 pandemic rendered in-person mediations impractical for various reasons, and accelerated the adoption of online mediation across all areas of practice, including estate and probate mediation.  Post-pandemic, an estimated 70% of persons still prefer online over in-person mediation, for several reasons.  

• Multi-party convenience: Estate cases often involve multiple family members or beneficiaries who may be geographically dispersed. Online mediation makes it easier to bring everyone together without travel.

• Cost-effectiveness: Online mediation can reduce costs associated with travel, venue rental, and time off work for participants.

• Flexibility in scheduling: Online sessions can be more easily scheduled around participants' work and personal commitments.

• Comfort and reduced tension: Many parties feel more comfortable and less confrontational when participating from their own spaces.

• Document sharing: Digital platforms facilitate easy sharing and reviewing of documents, which can be particularly useful in complex estate cases.

• Recording capabilities: With consent, sessions can be recorded for later review or for absent parties.

• Breakout rooms: Online platforms allow for private caucuses in virtual breakout rooms, which can be particularly useful in multi-party mediations.

• Accessibility: Online mediation can be more accessible for elderly or disabled participants who might find travel challenging. 

• Intergenerational comfort: Younger generations may prefer the tech-savvy approach of online mediation. 

VII.  In-Person Mediation

Until 2020, mediations typically occurred in-person, in a location with sufficient physical space for each party and the mediator to have a private room.  Due to the expense and inconveniences of providing in-person mediation, Legacy Mediation will consider the possibility of in-person mediation under appropriate circumstances.