Trusts and Estates

Ca. Trs. & Estates Quarterly 2023, VOLUME 29, ISSUE 3


Written by Hon. James P. Gray (Ret.)*

Over the last nearly 40 years, I have been involved in hundreds of mediations and settlement conferences, covering a wide variety of cases—including all kinds of civil and probate disputes. During my 25 years on the bench as a trial court judge, I held settlement conferences on nearly all of my own cases. For the past 14 years, I have served as a mediator on many cases concerning a variety of legal issues. Although every case involves its own unique set of facts, disputes and parties, the mediation process generally applies equally across the board.

So, what are mediations and what good do they do? In a nutshell, mediations assist parties in resolving their disputes voluntarily, usually with a neutral mediator as the agent to help them through the process. Why is this helpful? Because, as you may have noticed, litigation is expensive, both financially and emotionally, and perhaps even more importantly, it utilizes a lot of time that could otherwise be used more productively. Over the past four decades, I have learned that mediation is one of the most important and powerful tools that we as legal professionals can use.

My extensive experience has also taught me first-hand that one important consideration many attorneys often overlook is preparation of their clients for mediations. Of course, I recognize that attorneys are busy. I also acknowledge that preparing for the mediation itself takes time, as meticulous effort and thought are put into analyzing the case, thinking through possible outcomes, and drafting an always-stronger brief. While preparing the client may seem like the least pressing matter when gearing up for mediation, it is often the most important but overlooked aspect. Client preparation almost always makes a substantial difference in the success or failure of a mediation. Why? Because a more informed and prepared client is often more receptive to a reasonable proposal and agreement to settle a dispute.

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