RESOLVING TRUST AND ESTATE DISPUTES UTILIZING VIRTUAL ADR
By Hon. Peter B. Skelos, J.S.C. (Ret.) | August 2020
The New York Law Journal Alternative Dispute Resolution (ADR) Special Report
Contested matters in the Surrogate's Courts of New York are part of the trend of increasing litigation in our society. They are no less burdened by the trend than the rest of our courts. The weight is all the more heavier following the closure of the courthouses and the limits placed on the reopened courthouses with the Covid-19 pandemic. There is a solution. Alternative dispute resolution (ADR), particularly mediation, is known-well to be an effective, efficient, less expensive, more flexible, and less volatile means of resolving contested estate matters. Nevertheless, historically, ADR in the contested estate arena has been woefully under-utilized. The coronavirus pandemic has significantly impaired access to the courthouse. The pandemic should be the catalyst to forward thinking attorneys to help their clients obtain closure of contested estate and trust matters. The pandemic and the limited reopening of the courthouses call for a renewed look at ADR as means of servicing the needs of clients engaged in contested estate and trust matters.
The emotionally charged and highly personal nature of estate and trust disputes lend themselves well to ADR, particularly mediation, because neutral mediators use their interpersonal skills in a confidential venue to help the parties resolve their differences. In those instances where exclusive jurisdiction of the Surrogate's Court is not an impediment and resolution of the dispute cannot be accomplished by mediation, arbitration can be a quicker and more cost-effective means of obtaining an objective, informed and binding determination of the issues in the dispute rather than by full-blown litigation. This article will focus on the benefits of submitting trust and estate disputes to mediation before an experienced neutral who will focus the parties on resolving their dispute.
ADR is fully endorsed by the leaders of our state judiciary. In May 2019, as part of Chief Judge Janet DiFiore's Excellence Initiative, Chief Administrative Judge Lawrence K. Marks announced the implementation of a program dubbed “presumptive ADR” as a statewide initiative designed to provide a “more efficient, affordable and meaningful civil justice process” for litigants in the state of New York. See New York State Unified Court System Press Release, Court System to Implement Presumptive, Early Alternative Dispute Resolution for Civil Cases, at p. 3, May 14, 2019. Our judicial leaders recognized that ADR was under-utilized and determined that it should be expanded to the “broadest possible range of civil cases”. Id. p. 2. The program was to be designed and implemented by the statewide administrative judges and district administrative judges in cooperation with trial court judges and the practicing bar. Id. Unfortunately, like the rest of the court system, the implementation of court-sponsored presumptive ADR was throttled by the Covid-19 pandemic. Although the Chief Judge, the members of the judiciary and the non-judicial staff are making great strides to bring a sense of normalcy to the court system, even in those instances where the courts are open to the public, persons entering the courthouses will be required to wear masks, undergo Covid-19 screening, including temperature checks and maintain proper physical distancing. See New York State Unified Court System, Press Release, Grand Juries to Resume Next Month in the City's Five Boroughs; New York City Courts to Expand In-Person Criminal Proceedings, at p. 2, July 7, 2020. These precautions are as necessary in the courthouse, as they are globally, to fight the spread of the pandemic. But they also present a stark reality: the regularity of trials and hearings, whether they be jury or non-jury, is very much in the distant future.
It is incumbent on the practicing estate and trust bar to engage alternative means of resolving contested matters. Alternative dispute resolution – mediation using state-of-the-art videoconference technology is the answer. Videoconference technology allows participants in remote locations to “appear” in a confidential “venue” to conduct secure joint conferences or individual caucuses with a neutral mediator. Videoconferences have long been an option for parties and or counsel in remote locations. With the hurdle of the coronavirus pandemic upon us for the foreseeable future, videoconference mediation sessions should be part of the new normal and utilized by the bar to assist their clients in reaching a resolution of contested estate matters.
Understandably, there may be some reticence to engage opposing family members or fiduciaries in videoconferences. However, statistically, videoconference mediations are no less capable of creating a venue for mediated settlements than mediation sessions conducted with the parties physically present at the same location. Since the start of the pandemic, I have conducted more than 185 videoconferences in a wide variety of litigated matters. The success rate is substantially the same as achieved with in-person mediations. Some weeks are better than others. But it is now clear, the videoconference mediation platform works and it works well.
Although it may seem counterintuitive to some, I have found the use of video technology to be particularly suited to the resolution of emotionally charged disputes. The platform of the video screen allows the mediator to make, and keep, eye-to-eye contact with the party with whom the mediator is engaged in discussion without the intimidation that sometimes comes from in-person, across-the-table contact with the mediator. The mediator has the ability to keep the parties in separate breakout rooms. The agility of moving from room to room with the click of the mouse is more efficient than in-person mediation which requires the physical movement of parties, attorneys and or the mediator from room to room. The parties seem more at ease and speak directly with the mediator. My experience is that they are more conversational.
The videoconference venue gives the parties one of the most important benefits of mediation – the empowerment of self-determination. The parties are working with a neutral person who is facilitating a resolution of their dispute. In the end, it is the parties who control the outcome. With the aid of a creative mediator, the parties enjoy the flexibility of crafting a result that may not be attainable in a court where the judge is confined by the structure of the law.
There is a savings associated with speed and efficiency. Videoconference mediations can be set up faster than in-person mediations as they avoid the need for travel arrangements and to more easily fit the parties' and attorneys' schedules.
Estate litigation opens the family's dirty laundry. The pleadings and affidavits are part of the public record. Videoconference mediations, no less than in-person mediations, provide a private, secure, and confidential environment that fosters a willingness to resolve disputes. As with early in-person mediations, if counsel can convince their clients to engage in early video mediation before their positions are inflamed by the written word of pleadings and competing affidavits, and the inflammatory spoken word of depositions, and other litigation tactics that tend to add fuel to the fire of the dispute, there is a better chance of repairing a broken relationship or preventing the further deterioration of a familial bonds. The mediator, without playing armchair psychologist, may be able to tease out the interpersonal root of the dispute and can then creatively help the parties fashion a remedy – perhaps one that they could not attain in court.
To be sure, not every case can be resolved by mediation. Some disputes (parties) require an adjudication. Notwithstanding the best efforts of the judiciary, the queue to the courthouse is long and will be getting longer. Arbitration is another viable alternative to the court-adjudicated resolution so long as it does not usurp the exclusive jurisdiction of the Surrogate's Court. Videoconference technology allows for a full hearing to be conducted before a single arbitrator or a panel of three arbitrators so that the parties may obtain a final and binding determination. The technology permits counsel to securely transmit and display PowerPoint presentations, documents, photographs, and other forms of demonstrative evidence and to share same on the video screens of all or some of the participants in the hearing.
Chief Judge DiFiore's laudable objectives can be accomplished outside of the venue of the courthouse. Early videoconference ADR of estate and trust disputes deserves a new look by the practicing bar. Videoconference mediations and arbitrations are viable alternative to court-adjudications of estate and trust disputes during the pandemic and in a post-pandemic world.
Reprinted with permission from the August 10, 2020 issue of The New York Law Journal © 2020 ALM Media Properties, LLC. Further duplication without permission is prohibited. All rights reserved.
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Hon. Peter B. Skelos, J.S.C. is a retired Associate Justice of the Appellate Division of the State of New York, Second Judicial Department. He is a member of NAM's (National Arbitration and Mediation) Hearing Officer panel and is available for mediations and arbitrations nationwide. Judge Skelos is also Of Counsel at Forchelli Deegan Terrana LLP.
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