Jul 04, 2019
From Preemptive Litigation to Mediation
Jul 04, 2019
By Robert Rosborough
In the trusts and estates world, stories of children suing their parents are, sadly, unsurprising. Stories of parents suing their children are rare. Andrew Verriere is not advocating the latter but he makes a good case that some estate plans could be well-served by settlors going to court to have a trust’s provisions declared valid while the settlors are still around to speak. As a family-conflict mediator, I can attest that many, most or even all of the arguments beneficiaries use could be swiftly preempted by a ruling on an inter vivos trust petition. While it may sound extreme, such an action could be a tremendous service to your heirs, not to mention ensuring your estate plan is actually carried out how you designed it. I would view the growth of this type of action not as the rise of yet another type of outrageous litigation (parents suing children!) but as a one more tool to reduce litigation that is bound to be even more acrimonious and protracted. Imagine a murder trial where the victim could testify! (Is that analogy too mean a commentary on trust conflicts?)
Continuing in the vein of reducing litigation, this month we bring you three articles about mediation. Many thanks to our guest editor, mediator Scott Buell, who, in addition to his service on MCBA’s board, co-chairs our ADR section. In the first article, Randy Wallace distills many years of experience as an advocate and a mediator into five pithy principles of successful mediation that together create, “The Magic of Mediation.” While aimed more at mediators, Randy’s article provides useful insight for attorneys in mediation as well. Patricia Prince’s article on invisible threats and rewards is aimed at attorneys as much as mediators. While grounded in the wisdom of Sun Tzu, it outlines a fascinating neuroscience-based model for identifying the invisible threats and rewards inherent in all conflict and explains how to use this knowledge to improve results in mediation and negotiation. And in our third mediation article, Mary McLain updates us on the lack of diversity in alternative dispute resolution and the work of the ABA and other organizations to address it. The problem is not only who becomes—or doesn’t become—a mediator or arbitrator but how attorneys choose them. Mary calls upon all of us to do something about this, including for the development of an MCBA diversity pledge.
I encourage you to read this month’s member profile of Daniel Rossi. He has agreed to reinvigorate MCBA’s Barristers section by accepting the position of section co-chair. Daniel talks about the experience of founding a personal injury firm with his wife and how welcoming he has found MCBA. And if you missed the always informative and entertaining Rory Little discussing the current Supreme Court term, read Scott Buell’s recap of the event, which includes Professor Little’s handout of major cases this term.
Rob Rosborough is Of Counsel to Monty White LLP. He mediates disputes where an ongoing relationship is at stake, particularly adult-family conflict such as disagreement over caring for an aging parent and HOA disputes. He maintains an estate planning, HOA and general advisory and transactional law practice focusing on personal and small business issues. Rob also teaches at USF’s Fromm Institute (conflict resolution and history of science) and helps lawyers cope with the practice of law by teaching them meditation skills as a certified iRest® meditation teacher.