Mediation and Dispute Resolution/Martin Rosenfeld

Posted on March 30, 2013

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A recent article in the Wall Street Journal interviewed Attorney William Zabel, a lawyer who has practiced in the area of estates and trusts for half of a century. He discussed disputes that occur within families when will contests break out. At times, the disputes are over matters that are not even especially valuable. One solution regarding these disputes is to discuss as much as it feasible before the death of the parent. Information and open discussion is always a deterrent to many of the disputes that are inevitably going to develop in the future. Attorney Zabel decsribed how a lottery system in determining who gets e.g. which painting can be helpful. In such a system the child who picks the first selection in the first round, will then pick last in the second round, and so on.

In terms of mediation advice, Attorney Zabel has some interesting insights. When there is a mediation, it is quite helpful if the parties will ultimately choose attorneys, for review, who are able to work well together. Attorney who are not able to work well together can often undermine mediation agreements that have tentatively been made. In choosing a mediator, try to select someone who has a well-rounded life experience and who has an intuition about how to deal with people and their motivations, drives, etc. Mediation, it is submitted, always is worth the effort as the bitterness and enmity that often results from litigation can be long-lasting and quite toxic. A final thought that is offered is that divorce mediation might be easy in comparison with estate disputes. You can’t divide a rug into two segments but monetary disputes, often found in divorce matters, can be divided with the problem solving techniques that often emerge in mediation processes.

When a dispute is present or likely to emerge, litigation is often considered. The thoughts of Attorney Zabel reinforce what many already know; litigation makes sense if mediation has failed. It should rarely, if ever, preempt attempts at mediation.

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