Mediating a multi-million dollar probate case dispute often brings the neutral Mediator into contact with parties tempted by avarice, selfishness, and convenient memory.
Often there are many people attending the Mediation. There are usually the named parties of the lawsuit and their respective attorneys, and people not named in the suit but attend in supportive roles for the named parties.
In this case, there was a will, but it was considered to be poorly written and containing legal “flaws”. There were five parties named in Granddad’s will but two grandsons were left out of the will without mention. Granddad had passed about a year earlier at the age of 83.
The named parties attending the Mediation of this Probate case were:
- A live-in female companion of approximately 10 years and her attorney, (her two grown daughters were with her for support).
- Granddad’s niece and nephew who were named beneficiaries attended, as did their attorney.
- An independent Executrix of the will and her daughter were named beneficiaries in the will, though they were not related to the deceased. They attended along with their lawyer.
- There were two grandsons, only survivors of a previous wife, who were left out of the will and were contesting the will. They also had an attorney who, incidentally, had found them through an Internet prospecting service that finds unknown heirs.
The lawsuit was filed because of contentions between the named parties.
Also the two grandsons, who were left out of the will, threatened to “break” the will.
Probate cases such as this come to Texas Mediation Group, Jerry Cosby, often through an Order to Mediate from the probate judge. When cases come before judges such as this one, he/she has three options:
1). Go to trial, (very expensive financially, emotionally and time consuming)
2). Throw it out “for cause” or,
3). Order the case to Mediation.
We believe Mediation to be a much better solution in terms of saving finances, preserving family relationships, and bringing closure and resolution. The families themselves could also choose to bring the matter to Mediation rather than filing a lawsuit.
In the opening session of this case, the three lawyers representing the named parties quickly expressed to the two “left out” grandsons and their lawyer that they had no chance to “bust” the will.
As Jerry Cosby moved the parties to caucus (separating each party and their lawyer to a different room), the first order of business was to negotiate how much money the estate would be willing to give to the grandsons for them to disappear and not continue contesting the will.
It took many hours of going back and forth between the parties, conveying their separate positions, to reach a compromise to give the two grandsons a six figure sum to withdraw their objections to the will. An agreement was written up, every body signed it and the two grandsons went home.
The next many hours were spent with the three attorneys and their clients focusing on the other parties’ perceived mistakes and shortcomings. The attorneys always bring up the weaknesses of the other parties’ case and argue their position from that perspective.
It is Jerry Cosby’s job as a neutral Mediator to very carefully, smoothly, and sometimes slowly move all the parties step by step toward a compromise. As he moves from room to room, conveying the positions of all the parties to each other, he very skillfully brings new light and thoughts on the matter. He cannot make the decisions for them but presents a rational stance and perspective in order to bring the matter to a desired and acceptable resolution.
Each Mediation has its’ own unique set of details and issues. As a very talented Mediator, Jerry Cosby has, time after time, been able to facilitate compromise and settlement, even in the face of hard-nosed “no compromise positions” held by the parties and their attorneys.
As each case reaches settlement, the attorneys write up a “Rule 11 Settlement Agreement” detailing the specifics of the agreement. Everyone signs the document and then is able to go home after a long, but successful session.
Jerry Cosby, as Mediator, conveys the signed agreement to the court. The attorneys create settlement documents to bring before the judge for execution. This will bring the case to a legally binding conclusion.