California Trust Mediation | What Was Your Life About?

California Trust Mediation | What Was Your Life About?

• January 31, 2019 - Trust Litigation,

I’m Mike Hackard. I lead the law firm, Hackard Law, in our mission to represent clients in estate, trust and elder financial abuse litigation. This mission often leads to mediation, sometimes shortly into the process and sometimes close to trial.

Whenever mediation occurs it is usually a day-long event – an event that often includes a “hard day’s night.” The process involves a neutral mediator that helps effectuate negotiation between the attorneys for estates, trusts, heirs, and beneficiaries. Clients are deeply involved in the process and are understandably swept with emotion as offers and counter-offers come in.

It is easy to forget the spirit of what the case is really about – a decedent’s life and their wishes to benefit their family, heirs and beneficiaries. We often start off, much like prizefighters, when the mediator enters the room and says in so many words “Let’s have a clean fight, touch hands, back to your corners” etc. We may go back to our respective rooms and wait for more instruction.

It is so easy for us as advocates to think of ourselves like prizefighters – aggressively seeking a win or knockout blow. So easy – and in many circumstances – so wrong. Successful mediators know this – they help parties and their attorneys calm down and move toward a compromise.

There is another aspect of mediation that is long forgotten or given short shrift.

If the decedent could somehow miraculously visit us, we might ask him “What was your life about?” Few would say that it was to create rancor and consternation between people that he loved on earth. This truth has been brought home to me in a few recent mediations – mediations subject to confidentiality agreements – so I cannot reference their specifics. That said, I’ll share their spirit- a spirit that strengthened as they went forward.

The mediator comes in. We are seated with our clients. Our room is peopled with those who are challenging the estate or trust. The mediator wants to hear about the decedent – she doesn’t want to argue law – she wants to know the person that this case is about. One daughter starts –

“He was a great father – a loving father, husband, brother and son. He ran his own business – was fair to his employees and customers – and set high standards for himself and others.

His life was one of caring – he wouldn’t raise rents on his tenants – he viewed them as people and not cash flow. He contributed to our educations and was forever faithful to our mom. He was lost when she died.

He had Alzheimer’s – it was tragic – he forgot our names – and lost his sense of time and place. His last days were not like him – he was isolated by his caregiver and somehow convinced that the caregiver was the only one who cared.

He changed an estate plan that was 30 years in place during the last two months of his life. The caregiver got everything. We didn’t even learn that he died until two days later.”

She breaks down. A nephew begins.

“He was at my high school graduation. He taught me to fish. We sailed together. He would drive me by a duplex that he owned and say that he wanted it to be mine after he died. I told him that wasn’t necessary. He insisted. He always remembered my birthday and really helped when my own dad died.”

The stories went on – stories of affection, generosity and personal connection. The mediator was with us an hour. The mediator visited the caregiver’s room.

The decedent helped her and helped her family. He wanted to change his estate plan because his family “abandoned” him. He knew what he wanted and he wanted to take care of her. The story went on. She is convinced of her position.

The mediator returns. This time the lawyers talk more. We have medical records and we have a neurologist’s report. The decedent had Alzheimer’s disease – a disease in this case easily documented. At the time he amended his trust, he couldn’t drive, he could barely see and he didn’t really remember who his relatives were. In essence, the scourge of Alzheimer’s, grief, loneliness and diminished cognition had done its sad work.

The mediator and the lawyers now know him – the decedent – a man that they’d never met. A man who for the lawyers when they began their tasks was just a financial vehicle. He was bloodless.

We now knew he was more. He was caring, and if we were really to serve him, we needed to act as human beings – not just as lawyers. The mediation went on.

Somehow the other side got humanized – yes, we felt there was wrongdoing – and the other side felt deserving. How could the gap be bridged?

Moving on hours later – the gap was bridged – all chose peace and resolution over uncertainty and continued institutionalized rancor prescribed by the rules of court and demands of litigation. We left that night with an agreement and even more than that a sense that a man who had been generous in life was not forgotten in the tumult of a financial tug of war.

Hackard Law represents clients is substantial cases where we believe that we can make a significant difference and there is a party who can be made accountable for financial wrongdoing.

We litigate in California’s major urban areas. This year, 2019, we see an increasing focus on California’s Bay Area – Alameda, Santa Clara, Contra Costa, San Mateo and San Francisco Counties. If you would like to speak with us about your case call us at Hackard Law (916) 313-3030. We’ll be happy to hear from you.