Volume 12, Issue 2 - June 2014

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The Use of Alternative Dispute Resolution in Will Interpretation in Probate Courts

Nicholas Uzl*

I.          Introduction

In the age of increased litigation costs and the significant backlog of cases in courts, the use of alternative dispute resolution (ADR) mechanisms for resolving cases has become more popular. This general trend of an increased backlog of cases has proven true in probate courts as well as courts of general jurisdiction. To illustrate the significant backlog in probate courts, Judge Milton L. Mack Jr. noted that in the late 2000s and early 2010s the Wayne County Probate Court in Detroit, Michigan had 14,000 new filings every year, and had 37,000 open and active decedent estates, trusts, guardianships, and conservatorships in 2011; he went on to note that “long lines and multi-hour waits were common.”[1] To deal with the backlog, some courts have employed alternative dispute resolution mechanisms for helping alleviate some of the backlog. However, a quicker disposition of cases is not the only justification for the use of ADR processes.

Commentators have explained the justification of the use of ADR processes as varied: lower caseloads and expenses, faster resolution of the claim, improved public satisfaction with the justice system, flexible resolutions, increased compliance with the terms of the final disposition of the claim, and accessible forums to resolve disputes.[2] These justifications apply with equal force in probate court, specifically in will interpretation cases.

The use of ADR processes can also be useful when a particular case involves an emotional issue. This is so, because ADR processes can help address underlying emotional issues that are driving the litigation that adjudication might not be able to do as successfully. For example, oftentimes parties just need the opportunity to vent frustrations when they bring lawsuits, which can be accomplished via a more appropriate mechanism such as mediation. The interpretation of an ambiguous will can be a divisive and emotional undertaking. Such an undertaking usually occurs after the death of a loved one, in which emotions are already running high.[3]

If the will is not clear about the distribution of property, the possibility of familial conflict is high. The use of ADR processes could be most helpful in this context of allowing flexibility to deal with emotional issues as well as inducing a speedy resolution to the case. In order to show the usefulness of ADR processes the traditional approach to will interpretation must be analyzed, the current use of ADR processes in will interpretation cases, an examination of the possibility of employing different processes, and finally the recommendation of arbitration as a specific ADR process as the best suited for use in will interpretation. 

II.        Traditional Will Interpretation in the Courts

Before examining whether ADR should be in use and what the most appropriate ADR mechanism is for use in will interpretation, the traditional approach of probate courts must be examined. The primary purpose of probate courts in the administration of an estate is determining the testator’s (the decedent whom executed the will before his/her death) intent, and administering the estate to give effect to that intent. It is important to note that courts will ordinarily not question the reasonableness of the terms of a will. Typically, the only time a court will not enforce the terms of a will is if the terms call for breaking the law, they violate public policy, or are unconstitutional.[4] Unfortunately, the intent of a testator is not always immediately apparent from the document itself. In order for a probate court to be able to give force to a testator’s intent, the court must sometimes engage in interpretation of the terms of the will.

 The traditional approach of judges when it comes to interpreting the terms of a will has been to look to the plain language of the instrument. However, this has not always been the case. Historically judges have been heavily rule bound; dating back to the late 1800s, judges were instructed to interpret wills according to ultra-specific rules of construction, designed to interpret the usage of any number of combinations of words.[5] These rules allowed for little judicial discretion in interpretation. This mechanical application of the rules tended to lead to dissatisfaction with the process, so the law has gradually shifted away from mechanical application of rules.[6]

The dissatisfaction with the mechanical application of the rules, has led courts to adopt an inquiry into the intent of the testator. Courts today use a more flexible common sense approach to determine the intent behind the instrument and how best to give that intent force. The newer approach to will interpretation has been a positive shift for giving force to the testator’s wishes; it has been problematic from the point of view of interpreting ambiguous statements in a will. When an issue is ambiguous courts often turn to precedent for guidance in how to interpret a specific issue or to provide an example of how another court has disposed of the issue. This typical approach by courts has not proven to be useful in probate courts.

 The focus on each individual testator’s intent has diminished the role of precedent in determining will interpretation issues, and “although [courts] may be aided by previous cases, the meaning of each will is determined by its own particular facts.”[7]  Another court has put it this way: “prior cases are normally of limited value in will-construction cases…[since] each will-construction case normally involves a fact situation peculiar unto itself.”[8] So if courts do not rely on precedent to help interpret ambiguous terms, what do the probate courts rely on? The starting point for probate courts is almost always the plain language of the instrument.

The interpretation of ambiguous wills is a unique undertaking, because a will is a unique legal instrument. What makes the science (or perhaps more appropriately the “art”) of will interpretation is that the subject of the instrument (the testator) is not available to testify about his/her intent concerning particular language located within the will. Faced with this fact, the traditional approach of courts (and an approach still utilized today by numerous states) has been to utilize the “plain meaning” rule (also called the “no extrinsic evidence” rule)[9]. The substance of this rule dictates that extrinsic evidence[10] “may be admitted to resolve some ambiguities, but the plain meaning of the words of the will cannot be disturbed by evidence that another meaning was intended.”[11] Another commentator has explained that “only when the meaning of the will is so ambiguous that a court might reasonably interpret the will’s language in multiple ways may courts look to extrinsic evidence.”[12]

Courts have also used a second rule to assist in the interpretation of ambiguous wills that is closely related to the plain meaning rule, called the “no reformation” rule. The no reformation rule “[compels] courts to interpret the words that the testator actually used, not to interpret the words the testator is purported to have intended to use.”[13] Reformation is an equitable remedy that is available to probate courts to correct a mistaken term in the will to reflect what the testator intended the will to say.[14]  The no reformation rule dictates that courts should not engage in this equitable remedy, perhaps out of fear that courts could mistakenly manipulate the testator’s intentions in a way that results in unintended disposition of the testator’s property. The more probable concern is case backlog:  “to allow for reformation … would open the flood gates of litigation and lead to untold confusion in the probate of wills. It would essentially invite disgruntled individuals excluded from a will to demonstrate extrinsic evidence of the decedent’s ‘intent’ to include them.”[15] The nexus of these two rules for will construction was summed up by the Supreme Judicial Court of Massachusetts by noting

Courts have no power to reform wills. Hypothetical or imaginary mistakes of testators cannot be corrected. Omissions cannot be supplied. Language cannot be modified to meet unforeseen changes in conditions. The only means for ascertaining the intent of the testator are the words written and the acts done by him.[16]

This traditional approach to will interpretation has not been without its critics. As one might imagine, this approach can be inflexible and result in unintended consequences, such as an intended devisee or legatee being disinherited due to a simple mistake in language on the part of the testator or the lawyer who drafted the will.[17] As a result of the possibility of such a harsh result there has been a push by commentators to loosen the harshness of the traditional approach. In fact, the plain meaning rule has been expressly rejected in two states: Connecticut and New Jersey.[18]

It is important to note that there are two different types of ambiguities: patent ambiguities and latent ambiguities. A patent ambiguity is one that appears on the face of the will.[19] An example of a patent ambiguity is A leaves a piece of real property to B and while also stating she leaves her entire estate to C.[20] Under the traditional approach “extrinsic evidence is not admissible to clarify a patent ambiguity, and the court is confined to the four corners of the will.”[21] However, they note further that more often courts are allowing in extrinsic evidence in order to interpret patent ambiguities.[22]

The other type of ambiguity is a latent ambiguity, which “manifests itself only when the terms of the will are applied to the testator’s property or designed beneficiaries”.[23] There are two types of latent ambiguities: The first type is called equivocation is when two or more persons or things fit the description in the will (e.g. a devise “to my lover ‘Dave’” when the testator has more than one lover named “Dave”).[24] Courts have been more accepting of the admission of extrinsic evidence when this type of latent ambiguity existed.[25] Courts reasoned “extrinsic evidence merely made the terms of the will more specific without actually adding to the will’s terms.”[26] The second type of latent ambiguity is when the description in the will does not exactly fit any person or thing. An example of this type of ambiguity is a devise to “O.S.U.” The gift is ambiguous because it could mean a gift to Ohio State University, however, it could also mean a gift to Oregon State University, or another “O.S.U.” As time has passed, courts have become accepting of admitting extrinsic evidence for latent ambiguities as well.[27]

One approach used by courts to blunt the sharp edge of the traditional rules has been to adopt a “doctrine of probable intent”.[28] The New Jersey Supreme Court outlined this doctrine in Fidelity Trust Co. v. Robert:

The judicial function in construing [a] will [is to] ascertain and give effect to the ‘probable intention of the testator’ … in ascertaining the subjective intent of the testator, courts will give primary emphasis to his dominant plan and purpose as they appear from the entirety of his will when read and considered in the light of the surrounding facts and circumstances.[29]

The Robert Court went on to note that “so far as the situation fairly permits, courts will ascribe to the testator, ‘those impulses which are common to human nature, and will construe the will so as to effectuate those impulses.’”[30] This probable intent doctrine is quite a departure from the traditional rule of looking only at the four corners of the will for the plain meaning of the testator’s words.[31] This doctrine allows courts to disregard the more rigid traditional rule in favor of a flexible approach that allows a more liberal use of extrinsic evidence in determining intent: “the trial court is not limited to searching out the probable meaning intended by the words and phrases in the will … extrinsic evidence may furnish information regarding the circumstances surrounding the testator [and] should be admitted to aid in ascertaining [the testator’s] probable intent under the will.”[32] The approach to liberalize the traditional approach to will construction has gained steam, especially in light of the high amount of criticism the traditional approach has been subject to.[33] The more liberal approach has even been incorporated into the Restatement (Third) of Property and the Uniform Probate Code (UPC).[34]

The Uniform Probate Code allows for an even more liberal deviation from the traditional rule. UPC § 2-805 states in relevant part:

The court may reform the terms of a governing instrument, even if unambiguous, to conform the terms to the transferor’s intention if it is proved by clear and convincing evidence what the transferor’s intention was and that the terms of the governing instrument were affected by a mistake of fact or law, whether in expression or inducement.[35]

The Restatement (Third) of Property: Wills & Other Donative Transfers states, similarly to the UPC, in Section 12.1:

A donative document, though unambiguous, may be reformed to conform the text to the donor’s intention if it is established by clear and convincing evidence (1) that a mistake of fact or law, whether in expression or inducement, affected specific terms of the document; and (2) what the donor’s intention was. In determining whether these elements have been established by clear and convincing evidence, direct evidence of intention contradicting the plain meaning of the text as well as other evidence of intention may be considered.[36]

The comment to the Restatement notes that the courts have adopted one of two ways to deal with the evidence that may speak to a contrary intention on the part of the testator even if the instrument is unambiguous: to completely exclude the evidence (the traditional approach), or to consider the evidence.[37] Both the UPC and Restatement have opted for the second approach, and have acknowledged the possibility of disgruntled parties introducing fraudulent or incorrect evidence by requiring a higher burden of proof (clear and convincing) on the party attempting to introduce the evidence in an effort to reform the instrument (as opposed to the other standard of proof in civil cases: the preponderance of the evidence)[38]. The clear and convincing standard requires a higher degree of probability that an assertion is true than the preponderance of the evidence standard, but less than the beyond a reasonable doubt standard.[39] However, “it is generally agreed that [the clear and convincing standard] requires an assertion to be established by a high degree of probability, though not to an absolute or moral certainty or beyond a reasonable doubt.”[40]

By adopting this approach, the UPC and Restatement have attempted to strike the balance between providing a way to correct mistakes, while preventing the hijacking of a testator’s will via fraudulent evidence. Both have attempted to give “effect to the donor’s intention [while] prevent[ing] unjust enrichment … using the equitable remedy of reformation to correct a mistake is necessary to prevent unjustly enriching the mistaken beneficiary at the expense of the intended beneficiary.”[41] The Restatement has gone even farther than the UPC in that it directly states that extrinsic evidence should be admitted to help determine the intention of the testator, such an approach to unambiguous wills is a dramatic departure from the traditional rule.[42] However, the departure is a recognition by the American Law Institute[43] of the harshness of the traditional rule and a way to inject equity into the will interpretation function of probate courts.[44] The Comment to the Restatement finally noted that the power to reform a mistake in a will is not absolute: “reformation is not available to correct a failure to prepare and execute a document … to modify a document in order to give effect to the donor’s post-execution change of mind, or to compensate for other changes in circumstances.”[45]

While the traditional approach to interpreting ambiguous wills has been the plain meaning of the instrument within the four corners of the document, many courts have moved away from this rigid approach to an approach favoring the admission of extrinsic evidence to help interpret ambiguous wills.[46] The more modern approach of allowing in extrinsic evidence in interpretation is in recognition of the need for courts to have a way to correct mistakes in wills so the intent of the testator is carried out, because that is the most important function of probate courts — to carry out the intent of the testator.[47]

While the trend towards allowing in extrinsic evidence is a good thing in order to carry out the testator’s intent, this can increase the length of will interpretation litigation (with a corresponding increase in court costs). This increase in length of time and cost has created a backlog in probate courts, and has prevented the closure of estates, which is certainly an important event for the grieving families to begin the healing process.[48] One way to increase the disposition of estates and close probate cases is to utilize alternative dispute resolution processes to help dispose of contested wills more quickly and perhaps reach a more equitable solution to disputes than could be achieved in probate court. The savings in costs achieved through alternative dispute resolution processes make it almost irresponsible to not try alternative dispute resolution in order to resolve the conflict. Alternative dispute resolution provides an effective and efficient way to help close estates and allow families begin to resume some normalcy in their lives. 

III.       The Use of ADR Mechanisms in Will Interpretation

As noted in Section II, there is a significant backlog of probate courts: “the federal probate process is backlogged, with some estates pending for years.”[49] This phenomenon is not limited to federal courts. A partner working in probate at a firm in Massachusetts explained “the greatest challenge I presently experience when working as a probate lawyer … is working through the incredible backlog, lack of funding, and understaffing of the courts.”[50] It is important to note that the challenge the partner described first is the backlog of cases in the Massachusetts probate system. Massachusetts’s experience is certainly not an isolated one. Undoubtedly, the majority of states face a similar backlog of cases in probate courts. The painful reality, for practitioners and family/friends of the decedents, in probate courts begs the question what can be done to ameliorate this harsh reality? The answer to this question could lie outside of litigation, with alternative dispute resolution.   

The use of alternative dispute resolution to dispose of cases, as opposed to using litigation to do so, has been a widely accepted and utilized method of resolving cases for the last several years.[51] Courts began to become actively involved in developing and promoting of ADR mechanisms in the 1970 and 1980s.[52] Alternative dispute resolution has become so prolific and widely used today that there has been a push inside the alternative dispute resolution community to change the acronym “ADR” from “alternative dispute resolution” to “appropriate dispute resolution”.[53] The proponents of such a change to the name of the collection of alternatives to litigation note that “only about 1 percent of the civil cases filed in U.S. Courts are disposed of by trial.”[54] The proponents also claim that the change in name is reflective of the flexibility in which alternative dispute resolutions methods can be used to solve disputes. There is a plethora of mechanisms other than litigation available to resolve a dispute, therefore is almost certainly an “appropriate” mechanism that can be employed to solve the problems that any dispute creates. While the jury is still out whether this suggested name change will take hold, the proposal is suggestive of the extent ADR is used, and will likely continue to be used, to avoid the time delays and costs associated with litigation.

The increase in the use of ADR processes by courts is indicative of a recognition by lawyers and courts of the benefits these processes can provide. Professors Goldberg, Sander, Rogers, and Cole note justifications that have been proffered for the use of alternative dispute resolution: to lower court caseloads and expenses, to reduce the parties’ expenses and time, to provide speedy settlement of those disputes that were disruptive of the community of the lives of the parties’ families, to improve public satisfaction with the justice system, to encourage resolutions that were suited to the parties’ needs, to increase voluntary compliance with resolutions, to restore the influence of neighborhood and community values and the cohesiveness of communities, to provide accessible forums to people with disputes, and to teach the public to try more effective processes than violence or litigation for settling disputes.[55] Many of these benefits of alternative dispute resolution can be realized in probate courts; however probate courts traditionally have not received these benefits because of sluggish implementation of alternative dispute resolution programs.[56] Probate courts traditionally have been slower than other types of courts to adopt ADR mechanisms to speed the disposition of cases “the use of alternative dispute resolution to resolve probate, trust, and guardianship matters is in its infancy.”[57]

Perhaps the reluctance of probate courts to adopt alternative dispute resolution processes in probate proceedings is justified; perhaps there are great explanations for reserving most cases for litigation and not using other methods for resolving the dispute. There are several detractors of alternative dispute resolution mechanisms that are quick to argue that ADR is not and effective nor efficient. Perhaps the most vocal detractor of the efficacy of alternative dispute resolution methods is Professor Owen Fiss, who outlined many of his concerns with ADR in a Yale Law Review article entitled “Against Settlement”.[58]

Professor Fiss starts by arguing that often times consent is coerced to participate in ADR process (and consent to accept the ultimate settlement)[59], he analogizes settlement to plea bargaining in a criminal trial.[60] Professor Fiss also argues that the absence of a trial and judgment makes subsequent judicial intervention difficult.[61] He argues “judgment is not the end of a lawsuit but only the beginning. The involvement of the court may continue almost indefinitely. In these cases, settlement cannot provide an adequate basis for that necessary continuing involvement, and thus is no substitute for judgment.”[62] He finally argues that reducing a court’s backlog does not come without a cost; the cost being that justice may not be done.[63] Professor Fiss points out that ADR often does not include a judge who has been publically elected, and prevents those judges from executing their solemn duties. Fiss says that the job of judges is “not to maximize the ends of private parties, nor simply to secure the peace, but to explicate and give force to the values embodied in authoritative texts such as the Constitution and statutes: to interpret those values and to bring reality into accord with them. This duty is not discharged when the parties settle.”[64] Because when parties settle, judges are deprived of the opportunity to interpret statutes and provide precedent that will help clarify law for the public, settlement can create numerous obstacles to justice. Fiss notes that “peaceful coexistence … is not justice itself”[65] and the execution of justice is the purpose of the courts.

While the arguments against ADR advanced by Professor Fiss are compelling, the overall benefits of alternative dispute resolution outweigh the costs of the alternative dispute resolution schema. This is not an article that undertakes to rebut all of Professor Fiss’s arguments against ADR, very capable scholars have already engaged in such an undertaking.[66] This article focuses on the benefits of ADR that could be utilized generally by probate courts and why probate courts should endeavor to take advantage of the numerous benefits that ADR processes can provide. This article will conclude with a recommendation for the structure of the most effective alternative dispute resolution processes for probate courts.

Probate courts engaged in will interpretation are capable of realizing many of the benefits alternative dispute resolution has to offer. As an initial matter, many of the benefits noted earlier of alternative dispute resolution apply with equal force to probate courts engaged in the interpretation of ambiguous wills. ADR can help lower court caseloads and expenses by disposing of cases more quickly than litigation would, and lower costs as ADR has been found to do; reduce the parties expenses and time, if the parties can resolve the dispute prior to litigation the attorneys fees will be lower and more of the estate will be preserved for the parties; improve public satisfaction with the justice system, long delays in the administration of an estate can understandably upset family members and result in a low degree of confidence in the probate court system; to provide accessible forums to people with disputes, the cost of litigation can become a barrier to entry for poorer people looking for legal relief, ADR is more accessible to the public because of the lower cost, so that more members of the community can benefit from the resolution of their disputes; encourage resolutions that are suited to the parties’ needs, this is one of the biggest benefits to the probate courts that can be realized from alternative dispute resolution processes.[67] The needs of parties in probate litigation can vary widely, from the proper way to disseminate a very large estate with several pieces of real property as well as millions of dollars in personal property, to the disposition of property from a very modest estate, where a few family heirlooms are at issue.

One of the biggest draws of alternative dispute resolution is that it can be tailored to meet parties’ needs.[68] ADR allows for a more flexible remedy than might be available via litigation in court. What makes ADR so flexible is that often times the parties have a hand in designing the process to meet their needs.[69] One of the hallmarks of many ADR processes is their voluntary nature. The parties (usually) are able to elect to participate and then able to design the process.[70] Parties are more likely to be satisfied with a mutually agreed upon resolution via an ADR process than a resolution imposed by a probate court. Finally, the use of ADR in probate courts can help provide speedy settlement of those disputes that were disruptive of the community or the lives of the parties’ families. Often times, the death of a loved one is unpredictable and emotionally traumatizing. As one might imagine a long, drawn out probate process to close the estate can prevent the family members of the decedent from finishing the grieving process and starting the healing process. Furthermore, family disputes over the meaning of a will often occur after an unexpected death, further adding to the dismay of family members.

ADR processes are capable of dealing with the range of emotions felt by family members after the death of a loved one better than litigation might be able to. For example, a mediator might be able to weed through the emotions felt by the parties to get to the “real” cause of the dispute between the parties.[71] If the mediator can help resolve any underlying issues between the parties, the suit may be more easily resolved.[72] Litigation does not provide a similar way to handle any underlying issues. ADR processes can help the parties reach a more holistic resolution to their dispute that will leave all parties satisfied.[73] ADR really opens the door to a “win-win” agreement, which is especially important when family members are involved in the dispute because often the members will want to maintain a relationship. If the parties proceed to litigation and one party feels as if he has “won” and one party feels as if he has “lost”, it will be much more difficult for the parties to maintain a good familial relationship.

ADR can help avoid the feeling of a “winner” and “loser” and help the parties reach a mutually acceptable resolution that hopefully will not result in animosity.[74] Now that the benefits of ADR generally have been examined for probate courts, the question still remains which specific process is the most beneficial for probate courts; in order to reach an informed decision on that question, the various alternative dispute resolution processes available must be examined.  

IV.       Possible ADR Processes that Could be Used

As alternative dispute resolution has become a more popular method to avoid costly litigation, there has been an increase in the types of processes used. As ADR has become used more often, the different mechanisms have morphed and variations on established mechanisms have abounded. This transformation in the last several years of the alternative dispute resolution field has students and practitioners thinking “what will they think of next?” Some of the ADR mechanisms that are available and have been used are arbitration, mediation, negotiation, private judging, neutral expert fact finding, mini-trial, summary jury trial, negotiation, and the emerging collaborative law field[75]. Many of these ADR processes are not appropriate for use in will interpretation; however a couple of them are well suited for use in the probate context and indeed their use should be encouraged. Of the numerous processes available for probate judges to use to avoid litigation for ambiguous wills, mediation and arbitration are uniquely qualified to aid in will interpretation. However, arbitration offers the best avenue for the resolution of will interpretation cases. Much like Baby Bear’s bowl of porridge for Goldilocks, arbitration is the ADR process that is “just right” for use in will interpretation cases in probate courts.

A.        Mediation

There are many benefits that can be enjoyed from utilizing mediation in several different contexts. These benefits have long been described by academics, leading to a recognition by the judiciaries and legislatures of several states of the importance of adopting policies that encourage the use of mediation in varied contexts. Mediation is a very flexible process that can be morphed to solve many different types of problems “mediation has been used to resolve conflicts ranging from the mundane to the historic; be it settlement of a baseball labor strike or a centuries old international conflict.”[76] The New Jersey Practice Series further explained the benefits of the use of mediation in New Jersey to resolve disputes: because “litigation at times appears to lend itself more to creating strife than resolving it … mediation can bring about a settlement sooner rather than later in a case.”[77] The numerous and universal benefits of mediation make it an attractive ADR process to use

“mediation has advantages over other forms of dispute resolution, including the possibility the settling parties will have win/win options as opposed to win/lose results … the costs of mediation are usually far less than preparation for trial of a case, mediation is confidential and the parties can therefore provide full disclosure, not fearing what is provided will later be used in court, party hostility is greatly reduced, immediate collection on the settlement is possible rather than an expectancy of recovery of an uncertain amount in the distant future, litigation expenses can be tempered so as not to dwarf the size of the amount in controversy, the formal rules of evidence do not dictate the conduct of the mediation (the rules of civil procedure also can be relaxed), mediation is much less stressful on all litigants, mediation can help weed out weak positions prior to large investment of time and money, remedies can be tailor made to fit the needs of the parties and the nature of the problem, and voluntary solutions usually encourage compliance as opposed to orders imposed by a decision making authority such as a judge, which orders all too often produce resistance if not out-right evasion and non-compliance.”[78]

Mediation is also a very useful process when there is a need for maintaining relationships, familial relationships “anywhere there is the need to preserve a continuing relationship, and to keep it as amiable as possible, mediation has the capacity to bring out the best in disputants.”[79]

As is clear from many of the enumerated benefits of mediation, a lot of the draw of mediation is the result of the flexibility of the process induced by ability of the process to be morphed into whatever the parties want it to be. In most mediations, the parties voluntarily agree to enter mediation, and can set certain ground rules for how the mediation will proceed. This is a major advantage of mediation over adjudication. In adjudication the parties have very little power over the structure and direction a trial, but in mediation the parties can agree to relax the rules of evidence and civil procedure. Allowing flexibility in mediation reduces costs incurred by the parties and could lead to a better chance for a settlement. Finally, mediation is a low risk process, that it is almost irresponsible to not attempt to resolve the dispute via mediation before continuing on to adjudication “even if a dispute is not resolved by mediation, the time and money invested in the process is usually minimal, yielding at least some value, including a better understanding of the issues and insights into the dynamics of the other party’s motives and expectations [also an understanding of the legal theories the other might ultimately employ in adjudication], [and] a more civil relationship … can be a salutary by-product.” [80]

While the benefits of mediation are very persuasive when making the decision about whether to employ the process, it is not a perfect mechanisms, there are some potential disadvantages to mediation that make it a less attractive option for resolving a dispute. There is a movement within the legal community that mediation has been “by and large oversold. What started out as useful tool in the litigator’s toolbox has infected the entire litigation system, creating costs and consequences … that need to be examined.”[81] Some have suggested that mediation is not as effective as the advocates for its use make it out to be, and many of the parties would have settled their disputes even without mediation “prior to the advent of mediation, roughly 90 percent of civil cases settled. Recent statistics suggest that the percentage of civil cases that are tried has dropped to between 1 percent and 2 percent of civil cases filed.”[82] The argument continues that “there is an Alternative Dispute Resolution Complex that has its own agenda and its own costs. The civil litigation system managed to resolve disputes without disputes without mediation for hundreds of years. The criminal justice system still resolves cases…”[83]

Not only have some questioned the claimed effectiveness of mediation in helping reach settlements, the disadvantages of mediation from a practitioner’s point of view have been enumerated. The disadvantages/unintended consequences of the use of mediation include “deterioration in the relationships between opposing counsel, a tendency to favor ‘Rambo-style’ litigation and an ever-increasing tendency for lawyers to not shoulder the responsibility of talking realistically with their clients.”[84] Some practitioners even argue that an unintended consequence is an increase in the cost of litigation, in contradiction to one of the main advantages claimed for mediation: “consider a routine automobile injury case … everyone in [this hypothetical case] knows that this case should settle for somewhere between $30,000 and $70,000.” (arguing that if the lawyers sat down face to face they would reach a settlement quickly, but the current mediation atmosphere encourages the parties to adopt extreme positions. The parties will agree to mediation and have to pay the mediator fees as well as more legal fees than necessary).[85] Whether or not mediation is overused in litigation, even the proponents of mediation understand that there are inherent limits to the practice; that mediation is not appropriate for certain circumstances or types of cases.

Mediation is only suited for certain types of cases. The New Jersey Practice Series described the types of cases that are not ripe for mediation “cases that commonly will not benefit from mediation … include: where there is a significant power imbalance between the parties, where one party is seeking to establish a legal precedent, where the public has a paramount interest in the outcome of the matter, where there is a need to sanction a party for deterrence reasons.”[86] In the probate context, the use of mediation does not raise the types of concerns as the use of mediation in the listed cases above.

In the typical will interpretation case, there are certain members of the decedent’s family that are arguing over what certain terms meant in an ambiguous will. So in most will interpretation cases, there is less of a concern over a power imbalance between the parties. An imbalance of power is derivative of an imbalance in funds to pay for litigation —if one party has significant more money available to litigate an issue, the opposing party might be induced to settle to avoid costly litigation fees that the party cannot afford — will interpretation is unique in that most cases pit family member against family member. While there are certainly exceptions, often times members of the same family will have similar financial positions; at least the financial positions will usually not be so different to give rise to a “significant” power imbalance between the parties.

While there is a possibility that one party could be seeking to establish a legal precedent by suing, it does not seem likely in the context of will interpretation. When members of the same family sue each other to determine the terms of a deceased love one’s will, they are probably not suing to establish a legal precedent. Their motives for suing are much more likely to be to carry out the intentions of the testator, or more cynically, to recover valuable real and personal property. When parties make the decision to sue, it is not so probate jurisprudence will be advanced by establishing a novel legal precedent. Additionally, there could be the rare case where the public has an interest in the disposition of a will interpretation case, for example a bequest to a charity, or an issue dealing with estate taxes, it seems unlikely that public policy concerns will bar the use of mediation.

Many of the will interpretation cases will result in the disposition of property to the decedent’s family, the public probably does not have much of interest in deciding whether the decedent’s property goes to his second wife, or his son from a first marriage. Even in the rare cases where there may be a public interest to consider, the interest probably will not be strong enough to prevent the use of an effective dispute resolution technique such as mediation. Finally, will interpretation cases will rarely involve the need to sanction a bad actor for deterrence reasons. Suits to interpret a will or other estate planning document do not involve a bad actor as a party to the suit. Potentially the suit is based in part based on the bad acting of the decedent (for example, cutting a family member out of a will — but then again this cannot really be considered a “bad act” because a testator is free to dispose of his property in any way he wishes; a “bad actor” is usually used to describe a person whom has exposed himself to liability based on an a tort, breach of contract, product liability, etc…).

Even if there is a bad actor, there can be no deterrent effect, because bad acts in will interpretation cases are not capable of being repeated. These cases are not akin to product liability cases, where a bad actor can repeatedly cause harm to the public. A person can only be in a limited number of wills (or if the decedent is the bad actor, a person can only die once), so there is no need for litigation to deter the bad actor from acting that way again, because the actor might not ever get the chance to repeat his actions. Will interpretation cases are well suited for mediation, not only because many of the disadvantages of mediation are absent in will interpretation cases, but also because will interpretation cases can enjoy many of the benefits mediation has to offer.

The potential benefits of mediation in the probate context have been noted by leading practitioners in wills, trust, and estates “the nastiness of squabbles over estates has led many practicing lawyers to suggest family mediation or arbitration of contest probate matters. These approaches have the potential to reduce litigation costs, lessen unwanted publicity, and perhaps leave more family members speaking to each other.”[87] It has also been noted that mediation in probate courts is become more popular “in recognition of the fit between what mediation offers and what courts and families often want with respect to probate disputes, a growing number of states have begun to experiment with mediation programs in probate courts.” (describing the programs used by courts vary from mandatory mediation to voluntary mediation requested by the parties).[88]

Participants in mediation programs at probate courts report satisfaction with how the programs are carried out.[89] Not only are parties generally happy with probate mediation, attorney also report a high level of satisfaction with the process. The attorneys point to “mediation’s ability to expose the real issues at the center of the disagreement … [also] that getting parties communicating and dealing with personal issues not amenable to court process was useful.”[90] The satisfaction of both parties and attorneys is supported by objective data about the success of mediation in probate courts. The success rate in the Fulton County Probate Court in Atlanta, Georgia is approximately 65%.[91] It is hard to say whether some of the cases in Fulton County would have settled without the mediation, but the high rate of success seems to suggest mediation does provide a meaningful benefit to the participants in probate proceedings.

Despite these perceived benefits and reported levels of satisfaction many practitioners are reluctant to suggest mediation to their clients, out of a fear that suggesting it will demonstrate some weakness in their case.[92] This attitude will likely change as time goes on and mediation becomes more accepting within the probate community, and practitioners will not fear that suggesting mediation will denote some sort of weakness. Finally, mediation in will interpretation cases is low risk “there is simply very little to lose by an attempt at mediation … and there is potentially much to be gained: an outcome satisfactory to all, minimal costs, and the potential for improving family harmony by improving understanding, collaboration, and the experience of a successful resolution.”[93] While mediation could provide many benefits, it might not be “just right” for will interpretation cases. There could be other alternative dispute resolution mechanisms available that could be “just right”. Arbitration is another ADR mechanism that could be helpful in will interpretation cases.

B.        Arbitration

As noted, mediation is a viable alternative dispute resolution mechanism for resolving will interpretation issues in probate courts. Just because mediation is a viable option, does not mean that it is the only (or best) ADR process that could be useful in this context. Indeed, there is a better ADR process that serves the goals sought in the use of ADR in probate courts; enter arbitration. Mediation and arbitration serve many similar functions, but there are some important differences. The chief difference that sets arbitration above mediation for will interpretation is a final binding decision is guaranteed in arbitration.

Arbitration is not a new process, contrary to what much of the public may believe (this could be caused by general lack of knowledge about alternatives to litigation). Indeed, arbitration “has been an alternative to litigation for hundreds of years … as early as the thirteenth century by English merchants who preferred to have their disputes resolved according to their own customs.”[94] The use of arbitration as a device for resolving disputes traveled with the colonialists from England and predated the American Revolution.[95]Arbitration’s popularity has grown immensely since then and now the process is used in a variety of situations, including: disputes concerning collective bargaining, the construction industry, disputes between consumers and businesses, family disputes, malpractice claims (including medical and legal), securities disputes, community disputes, civil rights disputes, and even with major professional sports to resolve contract disputes. [96]

So what does the arbitration process look like? Like many dispute resolution mechanisms arbitration is designed by the parties when they voluntarily agree to submit to arbitration, which makes it difficult to describe arbitration in anything but the most general terms.[97] Generally speaking, arbitration shares many of the same characteristics as adjudication in a courtroom by a judge: proof and arguments are submitted to a third party neutral that makes a binding decision as to the issues presented. However, arbitration is less formal than adjudication, the rules of evidence do not apply as strictly, unless the parties agree they should apply with full force.[98] Finally, in some contexts the arbitrators do not provide reasons for the decisions they make; so parties will know what decision was reached, but will not necessarily know why a certain decision was made.[99]

Arbitration provides several benefits, some of which are realized by adjudication and some of which are not. The possible benefits to be realized in arbitration are as follows[100]: expertise of the decision maker-because the parties generally choose the arbitrator they can choose a neutral whom is well versed in the legal issues involved[101]; finality of the decision-courts almost always respect an arbitrator’s decision, and because it is binding a matter is generally laid to rest after the arbitrator has reached a decision; privacy of the proceedings-unlike an adjudication, arbitration is safeguarded from public view[102]; procedural informality-the parties can elect as simple a process as possible to resolve their dispute; lower cost than adjudication-costs are reduced in a number of ways. The simplified procedures reduce time and expenses. Also the parties know that appeal is likely not an option, so the parties will have a more concrete idea of the costs than they would in adjudication; and finally speed- arbitration is much faster than adjudication. The parties do not need to wait for a court to establish a trial date, which could take years considering the crowded dockets. The parties can proceed to arbitration as soon as they and the arbitrator are ready. The guarantee of a relatively quick binding decision is especially attractive in probate proceedings because of the importance helping the parties close an estate and continue the grieving process.

The benefits are not purely theoretical. The benefits are realized in every jurisdiction that authorizes arbitration. Indeed, there is empirical evidence to support the contention that arbitration still provides benefits over litigation. The American Arbitration Association (AAA)[103] has reported that for its cases involving two businesses for the year 2008, the median length of time from the filing of the case to the award was 7.9 months.[104] This median time is compared with civil cases filed in the U.S. District Court for the Southern District of New York, which take 30.7 months for jury cases, and 27 months for non-jury cases. As these statistics reveal, arbitration does result in significant costs savings, and can be about three to five times faster than litigation.[105] There is no reason to think the demonstrated time savings would not be realized in probate courts.

Outside of the general benefits just enumerated, arbitration is well suited to contend with the specific issues raised by will interpretation cases in probate courts. As noted previously, emotional considerations are often at the base of contests over a decedent’s will. Family members are 1) dealing with the emotional trauma of losing a loved one, and 2) might not think the way the decedent disposed of his property was “fair” — for example, one sister may think she is “entitled” to certain pieces of jewelry that another sister received in the will. This is a situation that lends itself well to arbitration. As stated, mediation is well suited for dealing with parties’ emotions, but if the emotional issues are hard to get past, mediation could be less than productive. Arbitration offers the advantage of a guaranteed resolution. The guarantee of finality in arbitration is perhaps arbitration’s biggest advantage over mediation. So even if the parties are not able to resolve underlying emotional issues, they can rely on the probate issues being laid to rest so they can move on with their lives.

So how can parties and probate courts obtain the demonstrated benefits of arbitration? One possible way is for probate courts to require parties to submit to court-annexed arbitration. Court-annexed arbitration is not voluntary, it is imposed by a court, but it is also non-binding.[106] Court-annexed arbitration is used by courts do “both lessen the burden of litigation imposed on the judicial system and to provide the parties a fair, inexpensive, and quick hearing and decision by a neutral and impartial person.”[107] Court-annexed arbitration is useful because so much of the general public still is not aware that arbitration exists as an alternative to litigation. Unsophisticated parties may not be aware of all of the options available, and may think litigation in probate court is the only way to resolve an ambiguity in a will. Court-annexed arbitration offers unsophisticated parties the opportunity to enjoy the benefits of arbitration. However, the major drawback of court-annexed arbitration is it is non-binding. The lack of a guarantee of finality makes court-annexed arbitration less attractive.

There is another way for parties to enjoy the benefits of arbitration. That is via arbitration clauses in wills. Estate planning lawyers should begin counseling clients that arbitration clauses in wills are a good idea and make sense. Arbitration clauses are clauses inserted into instruments to require binding arbitration for conflicts arising from the instrument. These arbitration agreements are most often seen in consumer contracts and employment contracts. Arbitration clauses have been a source of controversy and have often been challenged.[108] However, despite the challenges arbitration clauses in instruments have regularly been held enforceable and valid.[109] While arbitration clauses have been common in consumer contracts and employment contracts for years, arbitration clauses in wills have not enjoyed the same level of popularity or acceptance.

Some probate courts have been reluctant to enforce arbitration clauses in wills, the courts have suggested that the parties effected never entered into an agreement to arbitrate, which has often been one of the bases courts have relied on in upholding arbitration clauses in consumer contracts.[110] A similar issue with arbitration clauses in wills is “arbitration of disputes associated with wills and trusts poses unique problems with respect to interpretation and application since, unlike in contracts, the disputants are almost never responsible for the construction of the clauses at issue”.[111] While it is true that testamentary instruments have some important differences with consumer and employment contracts, one of those differences should not be the enforcement of arbitration clauses in the instrument.

One of the fundamental guiding principles of probate courts is to carry out the intentions of the decedent.[112] As the Restatement has explained, the testator should have almost unfettered freedom to dispose of his property as he wishes at death. Probate courts should make every effort to avoid impinging on the testator’s intention.[113] If the goal of will interpretation is to carry out the intent of the testator, why shouldn’t arbitration be used if the testator clearly provides for it in his will? Presumably, the testator will have a lawyer draft the will and the lawyer will ensure the testator understands how the process works, so there is not as much of a concern that the testator will not understand what he is putting in his will.

Indeed the testator can be involved in the intimate details of setting up the structure of the arbitration (including naming a neutral he thinks is fair, or establishing a method of selecting the neutral). The testator can also provide for the costs of the arbitration to be paid out of his estate, so as to not burden his family members with additional costs in the event arbitration is necessary. The testator is not giving up any more authority over the disposition of his property in arbitration than he would be if a will contest was fought out in a probate court. There is little reason to depart from the cardinal rule of carrying out the intention of the testator when it comes to an arbitration clause in the will for resolving interpretation issues. It would be inequitable for courts (and contrary to the established goals of probate and fundamental justice) to decide to carry out the testator’s intent as to everything but arbitration.

VI.       Conclusion

The use of alternative dispute resolution has enjoyed much more popularity over the last 40 years. The increase in ADR processes has been conspicuously absent from probate courts over those 40 years, but evidence suggests that ADR processes are becoming to be used in probate courts more frequently. The numerous benefits of ADR, as well as ever-increasing dockets of probate judges, make the increased use of ADR natural and appropriate. Probate courts, and parties stand to benefit from quicker dispositions of cases and lower costs, flexible resolutions that can meet the specific needs of the parties, and more accessible forums for resolving disputes.

ADR is especially helpful during disputes over the intention of the decedent in an ambiguous will. Fights over what a decedent may have meant in a will can lead to emotional distress and a long drawn out battle in probate court. Since courts ordinarily look at plain meaning of the words the decedent used to determine intent, if that plain meaning is not so “plain”; then parties should turn to ADR processes to resolve the dispute.

Of the numerous processes available to parties to resolve a dispute concerning the interpretation of a will, arbitration is best suited to resolve the arguments. Arbitration will lower the parties’ costs and the amount of time required to dispose of the case. Arbitration can also provide for more flexible resolutions in order to create a “win-win” situation for all the parties. Furthermore, the decedent can retain control over the disposition of his property by establishing the structure of the arbitration and how it will proceed, via an arbitration clause in his will. Finally, arbitration offers the guarantee of finality for the parties, because arbitration awards are rarely appealable. When entering arbitration the parties know the matter will be resolved at the conclusion, which gives the parties more certainty as well as a better idea of what the total costs will be.

The American probate system could benefit immensely from a broader use of arbitration. Therefore, courts should utilize court-annexed arbitration in appropriate cases, and encourage parties to voluntarily submit to binding arbitration in almost every case. Lastly, estate planning lawyers should counsel clients of the benefits of arbitration and consider inserting arbitration clauses into wills under appropriate circumstances. Clients should have as much freedom to plan the disposition of their property at death — arbitration accomplishes this goal of increased freedom.



* Nicholas Uzl received his Juris Doctor from The Ohio State University Moritz College of Law in May 2014.  This article was written as part of his membership of The Ohio State University Journal on Dispute Resolution.

[1] Milton L. Mack Jr.., Cost-Effective, and Customer-Friendly Probate Court: A Heartening Tale of Technology , 50 No.1 Judges’ J., 32 (2011)

[2] Stephen Goldberg, Frank Sander, Nancy Rogers & Sarah Cole, Dispute Resolution: Negotiation, Mediation, Arbitration, And Other Processes, 6 (6th ed. 2012)

[3] I said “usually occurs” because in some states there is a mechanism for determining the validity of a will prior to the testator’s death. This procedure is called antemortem probate, and “authorizes a person to institute during life an adversary proceeding to declare the validity of a will and the testamentary capacity and freedom from undue influence of the person executing the will.” Dukeminier, et al., infra note 4, at 165. Antemortem probate is only available in Arkansas, North Dakota, and Ohio. Even in these states it is rarely employed because the cost of the adversary proceeding is usually prohibitively expensive.

[4] Jesse Dukeminier, Robert H. Sitkoff,  James Lindgren, Wills, Trusts, and Estates, 27 (8th ed. 2009)

[5] Richard F. Storrow, Judicial Discretion and the Disappearing Distinction Between Will Interpretation and Construction, 56 Case W. Res. L.Rev. 65, 66 (2005)

[6] Id

[7] In re Estate of Saylors, 671 N.E.2d 905, 908 (Ind. Ct. App. 1996)

[8] In re Estate of Thompson, 511 N.W.2d 374, 377-78 (Iowa, 1994)

[9]Dukeminier et al, supra note 4, at 335-36

[10] Extrinsic evidence is evidence from outside the instrument (the will) that helps explain the testator’s intentions. An example of extrinsic evidence is a letter the testator wrote to a friend about the disposition of his property, or evidence about an oral conversation the testator had about the disposition of his property.


[12] Scott T. Jarboe, Interpreting a Testator’s Intent from the Language of Her Will: A Descriptive Linguistics Approach, 80 Wash. U. L.Q. 1365, 1367 (2002)

[13] Id

[14] Id

[15] Flannery v. McNamara, 738 N.E.2d 739, 746 (Mass. 2000)

[16] Sanderson v. Norcross, 136 N.E. 170, 172 (Mass. 1922)

[17] Steven W. Feldman, § 8:15. Contractual Intent —Plain Meaning Rule — Criticized, 21 Tenn. Prac. Contract Law and Practice § 8:15 (2012)

[18] Andrea W. Cornelison, Dead Man Talking: Are Courts Ready to Listen? The Erosion of the Plain Meaning Rule, 35 Real. Prop. & Tr. J. 811 (2001). In Connecticut, the Supreme Court of Connecticut disavowed the Plain Meaning Rule in Erickson v. Erickson, 716 A.2d 92 (Conn. 1998). The New Jersey Supreme Court acted similarly in a few cases, most recently in Matter of Estate of Branigan, 609 A.2d 431 (N.J. 1992)

[19]Dukeminier et al., supra note 4 at 340

[20] Id

[21] Id

[22]Dukeminier et al., supra note 4 at 340-41

[23] Id.

[24]Dukeminier et al., supra note 4 at 340. For example, a devise “to my lover Dave” when the testator has more than one lover named “Dave”. This type of ambiguity concerns which person was the intended beneficiary. Courts have admitted direct expressions of the testator’s intentions when they determine an equivocation exists.

[25] Id

[26] Id

[27] Some courts have expressly eliminated the distinction between the ambiguities, allowing extrinsic evidence in for any ambiguity without regard to the specific type of ambiguity at issue. See e.g. Univ. of So. Indiana v. Baker, 843 N.E.2d 528 (Ind. 2006); In re Revocable Living Trust, 123 P.3d 1241 (Hawaii 2005)

[28]Dukeminier et al., supra note 4 at 364.

[29] Fid. Union Trust Co. v. Robert, 178 A.2d 185, 187 (N.J. 1962)

[30] Id

[31] See e.g. Mahoney v. Grainger, 186 N.E. 86 (Mass. 1933)

[32] In re Probate of Will of Lee, 910 A.2d 634, 644 (NJ Super. Ct. App. Div. 2006)

[33] Ann E. Bruer, Pellegrini v. Breitenbach and Courts’ Reluctant Power to Reform Innocent Mistakes in Wills, 26 Quinnipiac Prob. L.J. 46 (2012)

[34] Dukeminier et al., supra note 4 at 342

[35] Unif. Probate Code § 2-805

[36] Restatement (Third) Property, § 12.1

[37] Id at cmt. e-f

[38] Id at cmt. e

[39] Id


[41] Id at cmt. b.

[42] Dukeminier, et al., supra note 4 at 351

[43] The Organization which drafted the Restatement (Third) of Property

[44] Restatement, supra note 34 at cmt. b

[45]Id at cmt. h.

[46] Dukeminier, et al., supra note 4 at 343

[47] Id at  27


[48] If an estate remains open, families are constantly reminded of the loss of their loved ones and it makes it more difficult for them to move on.

[49] Douglas Nash, Cecelia Burke, The Changing Landscape of Indian Estate Planning and Probate, 49-Feb Advocate (Idaho) 12 (2006)

[50] Lisa M. Cukier, Lawyers’ Differing Roles and Responsibilities in Assisting Clients Through Estate Administration and Probate Litigation, Aspatore *7, 2012 WL 2165922

[51] Lela P. Love, Stewart E. Sterk, Leaving More Than Money: Mediation Clauses in Estate Planning Documents, 65 Wash. & Lee L. Rev. 539 (2008).

[52] Mary F. Radford, An Introduction to the Uses of Mediation and Other Forms of Dispute Resolution in Probate, Trust, and Guardianship Matters, 34 Real Prop. Prob. & Tr. J. 601, 606 (2000).

[53] Professor Sarah Cole

[54] Goldberg,et al., supra note 2 at 4

[55]Goldberg, et al., supra note 2 at 6

[56] Radford, supra note 49 at 604

[57] Id

[58] Owen Fiss, Against Settlement, 93 Yale L.J. 1073 (1984)

[59] He argues that a driving force in the decision to settle is the amount of resources with which a party has available for litigation. The fewer resources a party has to litigate, the more compelled it will be to reach a settlement. The resources of parties in a dispute are rarely equally distributed, pressuring one party towards settlement.

[60] Fiss, supra note 55

[61] Generally speaking there is very limited judicial review of some ADR processes, for example arbitration.

[62] Fiss, supra note 55, at 1082

[63] Fiss, supra note 55

[64] Id at 1085. Fiss seems especially concerned with the effect of settlement on certain classes of cases, specifically civil rights cases, however he says his arguments are applicable to all types of cases, not just special cases like civil rights cases. 

[65] Id at 1085-86

[66] For examples look to Jack B. Weinstein, Comments on Owen M. Fiss, Against Settlement (1984), 78 Fordham L. Rev. 1265 (2009). And Samuel Issacharoff, Robert H. Klonoff, The Public Value of Settlement, 78 Fordham L. Rev. 1177 (2009).

[67] Goldberg et al., supra note 2 at 4. The importance of the flexibility of resolutions to meet the parties’ needs cannot be understated. Generally, will interpretation cases in probate courts involve parties that will have a continuing relationship after the litigation has concluded. Fashioning a flexible resolution that meets the parties’ needs is incredibly important when a continuing relationship is involved.

[68] Id

[69] Id

[70] Id. Occasionally courts will mandate participation in an ADR process, however if participation is mandated, the result is unlikely to be binding.

[71] Id at 121

[72] Id at 128-29

[73] Id at 121

[74] Id at  6

[75] Id at 2-3

[76] 4B N.J. Prac., Civil Practice Forms § 100:2 (6th Ed.)

[77] Id

[78] Id

[79] Id

[80] Id

[81] Elden Rosenthal, Second Thoughts on Mediation: A Trial Lawyer’s View, 72-Mar Or. St. B. Bull. 28 (2012)

[82] Id at 31. Arguing that this drop in the percentage of cases that proceed to trial are not so much a result of increased use of mediation, but of other factors such as changes in the summary judgment practice, and the rapidly increasing cost of litigation led more to an increase in settlement is the result of cases … and that mediation advocates are unable to show the increase in settlement is the result of mediation.  

[83] Id at 34. Questioning why the civil litigation system has become so dependent on mediation; when other areas of the law are effective without mediation.

[84] Id at 32

[85] Id at 32-33

[86] 4B N.J. Prac. Civil Practice Forms, supra note 73


[87]Dukeminier, et al., supra note 3, at 207

[88] Love & Sterk, supra note 48, at 549

[89] Id

[90] Id at 550

[91] Ellen E. Deason, State Court ADR, Disp. Resol. Mag., Fall 1999, at 6


[92] Love & Sterk, supra note 48, at 551

[93] Id at 583

[94] Goldberg et al., supra note 2, at 303

[95]  Id

[96] Id

[97] Id. Court annexed arbitration does not have this feature, because court annexed arbitration is a mandatory, nonbinding form of adjudication; claims are typically handled in simplified informal hearings in front of a court appointed arbitrator. Id. at 524.

[98] Goldberg, et al., supra note 2, at 303. In reality parties will likely not agree to the full application of the federal rules of evidence, because this will unnecessarily raise costs and create delays.

[99] Id. This happens most notably in the commercial  context. Commercial arbitrators rarely provide reasoned opinions (like a judge would do). In other contexts arbitrators do provide a reasoned opinion, giving parties a basis for the decision reached.

[100] Id at 304

[101] For example the parties could choose a retired probate judge to serve in this capacity, whom the parties agree will be fair.

[102] This is one of the biggest benefits to arbitration. Arbitration is a private undertaking, whereas a probate proceeding is generally public record and open to inspection. The need for privacy cannot be understated, especially when large estates are involved. An extreme example is provided by the Estate of William Randolph Hearst (the newspaper publishing mogul). William Hearst’s will was offered to probate, and thus public record, and as a result one of his granddaughters, Patty Hearst was kidnapped by a radical group because the kidnappers knew her family was worth a lot of money. If William Heart had provided for arbitration, the proceedings would have been private. On a related note many parties agree to confidentiality of the results of arbitration, an added protection of the parties privacy. 

[103] The American Arbitration Association is a non-profit organization that is among the foremost providers of alternative dispute resolution services. The AAA’s services include assisting in the appointment of mediators and arbitrators, settling hearings, and providing users with information on dispute resolution options. About American Arbitration Association, http://www.adr.org/aaa/faces/s/about?_afrLoop=227699864485376&_afrWindowMode=0&_afrWindowId=161ltyru4o_1#%40%3F_afrWindowId%3D161ltyru4o_1%26_afrLoop%3D227699864485376%26_afrWindowMode%3D0%26_adf.ctrl-state%3D161ltyru4o_47

[104] Edna Sussman, Why Arbitrate? The Benefits and Savings, 81-Oct N.Y. St. B.J. 20, 21 (2009)

[105] Id

[106] Goldberg et al., supra note 2 at 524

[107] Bruce A. McAllister, Court-Annexed Arbitration, ADRI FL-CLE 2-1 (1995)

[108] See Meredith R. Miller, Contracting Out of Process, Contracting Out of Corporate Accountability: An Argument Against Enforcement of Pre-Dispute Limits on Process, 75 Tenn. L. Rev. 365 (2008).

[109] AT&T Mobility LLC v. Concepcion, 131 S.Ct. 1740 (2011) noted a strong legislative policy in favor of arbitration clauses, via the passage of the Federal Arbitration Act (FAA) “the FAA was enacted in 1925 in response to widespread judicial hostility to arbitration agreements … we have described this provision as reflecting both a ‘liberal federal policy favoring arbitration’ and ‘the fundamental principal that arbitration is a matter of contract’ … in line with these principals, courts must place arbitration agreements on equal footing with other contracts.” Id. at 1745.

[110] See Arbitration Clauses in Wills and Trusts: Defining the Parameters for Mandatory Arbitration of Wills and Trusts, 24 Quinnipiac Prob. L.J. 118 (2011).

[111] Id. at 120. Arguing arbitration clauses in testamentary instruments pose a bigger problem than similar clauses in consumer contracts, because the parties that will be contesting the will are being forced into arbitration without their consent.

[112] Restatement, supra note 34 at § 10.1 states in relevant part “The controlling consideration in determining the meaning of a donative document is the donor’s intention. The donor’s intention is given effect to the maximum extent allowed by law. Comment a to Section 10.1 explains “ the organizing principle of the American law of donative transfers is freedom of disposition. Property owners have nearly unrestricted right to dispose of their property as they please. 

[113] Assuming of course the testator’s intentions are not ambiguous.

Posted in: Volume 12, Issue 2

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