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A will, trust or other inheritance dispute is one of the most emotionally challenging events you will encounter during your lifetime next to the death of a love one or next to a divorce. In a sense, such disputes are a “divorce” between family members.

While, unlike divorce, there are no emotional child custody issues, the parties are fighting over the custody of assets, bank accounts, or personal belongings of a love one who has passed away.

Many estate and trust lawyers and other professionals believe that these disputes are only over money or assets. However, many times, the root cause of these disputes relates back to issues the parties have dealt with for over 20, 30 or more years.

That is, these disputes are commonly between siblings, step-siblings, step-children and step-parents. The most disturbing disputes we see are the ones where child is suing parent, or parent is suing child.

These disputes are so divisive, so toxic, that they are crying out for serious intervention by professionals trained in family dispute resolution, and also experienced in will, trust, probate and tax matters.

The problem with law suits is that there will always be a winner and a loser. That, is the nature of a law suit.

The other problem with law suits is that vast amounts of money, time and emotions are expended. Poles taken after law suits are over indicate that even the winner in a law suit does not feel like a winner. The prevailing party is often drained emotionally and has spent well over $100,000 in legal fees to make their point and win their case.

Such costly victories are known as “Pyrrhic Victories”. The phrase is named after King Pyrrhus, whose Greek army suffered massive casualties in defeating the Romans around 280 BC. On the battlefield, the victorious King Pyrrhus had lost so many of his best warriors, it is said that he uttered the following words: "If we are victorious in one more battle with the Romans, we shall be utterly ruined."

Such ruinous victories line the battlefield of probate, trust and will litigation.

The courts across Southern California are replete with bitterly fought inheritance disputes.

Any client that has accompanied his/her lawyer to court knows that most of the time, nothing productive get accomplished at court hearings.

Lawyers and judges speak in language only they themselves understand.

Most of the time the judge refuses to make a decision and continues the hearing for another day, prolonging the pain and agony, and legal fees incurred by the parties.

At $250 to $550 per hour for lawyers specializing in such matters, the trips to and from the court alone can amount to thousands of dollars each time an unproductive hearing takes place.

Adding insult to injury, although the judges require the lawyers to be in court at 8 or 9 am, many times the judge doesn’t get around to calling the case until 11 am. And even then, the attorney is up before the judge for a mere 5 to 10 minutes.

So let’s do the math:

The lawyer leaves his home at 7 am to get to court by 8 am. The judge comes on the bench at 8:30 am and doesn’t call your matter until 10 am. Your lawyer is done by 10:30 and is back at his office by 12:00 pm. Before getting to court, the day before, your lawyer spent 2 hours preparing for the hearing; and, several weeks before the hearing, your lawyer spent 6 hours preparing and filing written legal arguments trying to sway the judge on a particular issue.

Now, around 12:00 pm your lawyer calls you and says the judge didn’t make a ruling and the matter got continued for 30 days to allow the other side more time to submit evidence or make arguments.

After the phone call, your lawyer writes you a letter summarizing what happened in court and the fact that you had a phone call. It is now 1:00 p.m. and your lawyer moves on to other matters.

So far you have incurred 14 hours of lawyer time at probably $350 per hour and nothing has been accomplished. That’s a whopping $4,900, plus out of pocket costs such as parking at $5.00 for every 15 minutes ($20 max.), copies at $0.25 per page, overnight charges at $50 per package, messenger services at $120 per delivery, court reporters for depositions at $1,500 per day or more, expert witnesses with minimum retainers of $7,500, and on and on.

Fast forward 30 days later, and the process repeats. In some courts, the judge takes the day off, or his backed-up with his/her cases and asks a senior lawyer to act as judge for the day. If you don’t want to put your financial life in the hands of this judge-for-a-day lawyer, you ask for another continuance.

Well, you just incurred another 4 hours of billable time, or $1,500 for the privilege of nothing getting done and having to come back another 30 days later. Ouch!!! How long can this continue? Don’t worry, this is just for starters.

In a recent probate case filed by the son of the deceased, the deceased’s step-daughter filed a competing probate case in another court in the County. Not knowing what to do, the judge continued the hearing. At the second hearing, still not knowing what to do, the judge transferred the case to the other court for that judge to decide who should keep the case. At the third hearing, the second judge, not being able to decide, kicked the case to the supervising judge to make the call.  The supervising judge then decided where the case would proceed, and now, at the fourth hearing the judge finally heard the parties in order to decide which of the two persons was more qualified to act as executor of their parent’s estate. At the fourth hearing the judge decided to schedule yet a fifth hearing date to take evidence and testimony as to the parties’ fitness to serve as executors.

So, again, let’s see how many hours went into this case before it even got out of the gate. Each of the five hearings took each lawyer out of his/her office for approximately 4 billable hours. The paperwork submitted by each lawyer likely took 10 hours to prepare. The preparation for the fifth hearing required 5 hours of time. That’s a total of 35 hours just to get the right to commence the probate case. That’s a remarkable $12,250 plus costs per litigant, or $24,500 if there are only two people fighting over the estate.

So if you think $100,000 in legal fees is a high estimate to get anything decided in the courts, you will be sorely surprised.

Many times $100,000 is a low estimate and is misleading.

A dispute that lasts 1 to 2 years can easily amount to $250,000 in legal fees and costs on each side.

These disputes are truly for the filthy rich. For those of us of most modest means, these disputes are financially ruinous.

There is rarely a worse feeling that starting a legal battle, only to realize a few months into it that due to the out-of-control costs, you have to withdraw, essentially admitting defeat or accepting a paltry settlement just to “walk away” with your tail between your legs.

Ask yourself, how does China, a nation of 1.3 Billion people avoid social disorder arising out of disputes between its citizens over such matters as marital and family problems, environmental and real property disputes, unpaid debts, wages disputes, contract disputes, accidents and other injuries? A system of courts, judges and lawyers such as ours would implode from the sheer volume of cases that would have to be handled.

The answer?

Mediation -- over 2000 years of formalized Chinese mediation keeps the peace!

What is Mediation?

Mediation is an informal, voluntary process in which the mediator first facilitates discussions, and then negotiations between the disputing parties, helping them to find their own mutually acceptable resolution.

What distinguishes mediation from other forms of dispute resolution is that the mediator does not impose the solution. Rather, the process helps make it possible for the parties to craft and accept their own solution to their problems.

Many times the solution can be based upon an outcome that is reasonably acceptable to the parties. An outcome that seems fair to both. Fairness does not necessarily mean equal from a financial point of view. Fair is what the parties can agree upon.

Lawyers and retired judge mediators often approach the problem purely from a legal perspective. That is, they try to get the parties to settle based upon each party’s likelihood of prevailing in court on the law and on the evidence. The problem with this approach is that each side, no matter how misinformed, thinks that they have the winning hand.

Try telling a child of the deceased that he/she will be disenfranchised by a step-child of the deceased that was never adopted. It’s not going to go over very well. If this mediation focuses only upon the legalities and the evidence and the chances of each side prevailing, there is very little hope for productive settlement discussion. Each side will dig in their heals.

However, as states, many times there is a non-legal approach that can help the parties craft their own solution. Perhaps the solution might be to allow a family member to live in a property rent free, or at a reduced rent until they can relocate. Perhaps once the property is sold, the relative bringing the challenge in the courts may be willing to accept 25% of the sales proceeds of the property and buy him/herself a substitute residence.

These types of compromises are not possible in trial. The judge will simply render a decision. It is winner take all (minus his lawyer’s fees). There is a winner, and there is a loser.

Mediation strives to achieve a win – win resolution. Only mediation can preserve the relationship of the parties, despite the dispute.

This is the problem with litigation: A judge renders a decision.

What does that mean? It means you have turned over your outcome in the case to a stranger, a 3^rd party that brings his/her own biases to the process.

How about arbitration? Arbitration usually involves a panel of three people or one retired judge or a lawyer who will, again, render a decision. The same problem, you have lost control over the outcome of your case. Arbitration, like court litigation is binding in the parties. Once the decision is made, you are bound. You must live with the outcome. Mediators do not render a decision.

Many of these cases have some issue that needs to be discussed between the parties. 70% of the cases in court are proven to benefit from mediation. In true mediation, attorneys do not take over; there is no cross examination. The dialog is between the parties that are in a dispute.

Often both people feel like the victim. Both of them or all of them have a fundamental need to be heard. Mediation is not a settlement conference.  The mediators should never cut the baby in half. True mediators don’t push the solution. Instead the true mediator draws out the solution from the parties. In the end, once the solution is reached, only then can the healing begin.