Is this a feud or a crusade? How do you recalibrate the discussion to get to a reasonable value for an asset? There are sticky issues and elusive answers in any mediation. Brian Hewitt, AlerdingCastor Hewitt, LLP, is here to offer Law Tips readers his pointers gleaned from 20 years of experience in negotiating. Following are his tips on finding the sense of fulfillment your clients need in probate mediations.
Don’t Negotiate in 5′s or 10′s:
When you negotiate in 5′s and l0′s (such as in $5,000 or $10,000 increments) you will often give up ground by the end of a negotiation. Negotiate in 2′s or 3′s or 7′s and 8′s and you can grab two or three thousand dollars on each volley, especially on the last two or three volleys before a settlement.
“Invoke the Timeout”:
After the mediation has gone on for a while it is sometimes helpful to slow it down. If the other side is getting overly aggressive put them in “time out”; take a break, let them sit for a while. This can indirectly communicate you are there for the long haul or give them time to cool off if negotiations have become heated. You don’t have to announce you are invoking a timeout; just take one. This can also give your client a chance to collect his or her thoughts and take a deep breath.
Is this a Feud or a Crusade?:
Virtually every probate mediation involves either a nasty feud between long warring relatives or step-relatives or a crusade on the part of one party. Determine which it is. If the dispute is a feud, both parties have an ax to grind and an agenda that may cloud their vision and, in fact, lead to poor decision-making. If your client or your opponent’s client is simply on a crusade, you won’t change that thinking during the course of the day. Try to structure conversations and proposals that have the appearance of fulfilling whatever mandate that crusader seeks to accomplish. A crusader needs a sense of fulfillment. Find a way to provide it.
Particularly when asset values are disputed, turn the tables on an offer. If, for example, your opponent offers you a piece of real estate as a part of an offer at a certain high value, flip the offer and offer it to them at the same value. This will quickly recalibrate the discussions so a reasonable value can be assigned to assets, the division of which is being negotiated.
I have to Have It:
In many probate mediations, there is at least one asset that at least one beneficiary “has to have”. I am consistently amazed when a beneficiary and their counsel actually announce they have to have that asset. When you announce you have to have a specific asset, you better open your checkbook. It seems like common sense that insisting you have to have a certain asset will increase the price, but many parties miss this seemingly obvious point. Instead of announcing you have to have an asset, avoid drawing attention to it. Try to get a value of that asset established for purposes of negotiation along with other estate assets so you don’t draw attention to the asset you want.
Demands are Not Offers:
Sometimes offers have been made before a mediation and sometimes they have not. At a minimum, each party should communicate their best case to the other parties before the mediation. Remember, however, a best case proposal is a demand, not an offer. It is not productive to begin a mediation that merely restates your best case or demand. That is not a negotiation and sets a horrible tone for compromise. If you want the other party to show some movement, show some movement yourself.
Beware the Condition Precedent or Subsequent:
Many final mediation agreements include either a condition precedent or subsequent. If you need to include such a provision, make sure of two things.
First, make sure that condition is a hill your client is willing to die on, because once it is made a part of the contract, a condition can be used either as a weapon or a shield.
Second, make sure the condition precedent or subsequent is carefully drafted into the settlement agreement. Unfortunately, I have seen several mediated settlement agreements fall apart later because of an unfulfilled condition or a poorly drafted one. Consider a penalty provision that increases the cost of settlement in lieu of a condition precedent or subsequent.
I appreciate Brian Hewitt providing his insights on important strengths and weaknesses to be aware of in probate mediations. Hopefully, you have some new strategies in mind as you begin solving your next communications dilemma for a client. Brian is a faculty member in ICLEF’s popular seminar, 120 Hot Tips in Estate,Trust & Probate Practice. If you could use 115 more tips, you’ll want to schedule this CLE either as an On Demand Seminar or Video Replay Seminar in your locale.
About our Law Tips faculty participant:
Brian C. Hewitt is a partner in the Indianapolis and Greenwood, Indiana law firm of AlerdingCastor Hewitt, LLP. He concentrates his practice in estate, death tax and business planning and representation, probate, trust, guardianship, commercial and civil litigation, the representation of financial institutions and mediation. He is a registered civil mediator, board certified Indiana Trust and Estate Lawyer by the Trust and Estate Specialty Board and a Fellow of the American College of Trust and Estate Counsel.
About our Law Tips blogger:
Nancy Hurley has long-standing connections with Indiana lawyers. She was formerly a member of the ISBA and IBF staffs for over 30 years. Nancy’s latest lifestyle venture is with ICLEF. We are utilizing her exceptional writing and interviewing skills while exploring how her Indiana-lawyer background fits with ICLEF’s needs. When she isn’t ferreting out new topics for Law Tips, her work can be found in our Speaker Spotlight blogs, postings on the ICLEF Facebook and Twitter pages, and other places her legal experience lends itself.
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