What Makes Mediation A Great Match?

Jul 13, 2021

What Makes Mediation A Great Match?
By Michael G. Schwartz


Mediation and fiduciary controversies are a great match. A really great match.

Most disputes involving estates and trusts are moored on strong emotions and unique facts. Relationships among siblings and blended family members often trigger deep-seated sentiments that arose long ago and are unlikely to go away. Family-owned business operations, administration mistakes, and unanticipated situations often lead to some of life’s most harrowing situations in trust and estate disputes.

Reaching an agreed resolution of trust and estate disputes requires dealing with complex underlying laws, while effectively managing the personalities of the key stakeholders. But navigating these shoals is exactly where mediation outshines the alternatives; by providing outcome-based paths to resolve these challenging issues.

Litigation is often a lose-lose situation, but even more so in fiduciary disputes. The winners rarely feel vindicated, and the losers seldom feel they received a fair shake. “The judge didn’t understand me.” “My legal counsel didn't get my points across.” “My sibling always gets away with this stuff.”

As we have seen repeatedly, it doesn’t matter whether the facts are true or false, or who is right or wrong. The complexity of these situations belie easy classification. A person’s feelings become their truths, and this is what sets the parameters.
One of most fascinating characteristics of mediation is its voluntary nature. Voluntary to initiate, voluntary to continue once the process has begun, and voluntary to reach a resolution. A process that can be ended by any party, at any time, for any reason – what could go wrong?

But these are the strengths of mediation. By the time a mediator is engaged, the parties have already agreed a serious controversy exists requiring outside assistance. Each party is willing to give something to get something. Each party seeks personal closure.

Advocates can be helpful in achieving resolution, but often find their hands tied. What is needed is a skilled facilitator who can keep the parties focused, keep them moving in the right direction, and help them uncover a solution not available in a judgment-based setting.

Let’s look at second marriage example. One where the children of a first marriage feel slighted by an estate plan they feel couldn't have been intended. But a second spouse who feels they were the anticipated beneficiary of the decedent’s largess, without any other means of support. Both parties naturally feel they are right and the other party is wrong.

Attorneys hired as advocates may feel constrained to solely argue the “rightness” or “wrongness” of their client’s positions. If this remains the framework, so be it. Throw it to a court or an arbitrator, and they will ably render judgement as to who is right and who is wrong, because that is their defined role.

But mediators are not so constrained, and they are trained to explore outside the box, avoiding determinations of right and wrong. Feelings can be explored, and solutions can be crafted that meet the primary needs of all of the parties. Perhaps one child is driven by a dire need for financial resources to cover serious medical needs. Perhaps the assets are more than sufficient to support the second spouse for their entire lifetime. A skilled mediator can craft a solution to satisfy all the parties, without having to delve into emotionally-charged claims of undue influence, incapacity, or mistake.

A better way for trust and estate disputes. At least worth the try. Mediation is designed to explore, to push, and to resolve.
A great match for sure!


Michael G. Schwartz is a partner in the Vorys Cincinnati office. He represents many high net-worth individuals with respect to their estate planning needs; corporate fiduciaries and beneficiaries with respect to trust administration and dispute resolution; and closely held businesses with respect to all facets of business planning. Schwartz brings a practical approach to the law and has the unique ability to make complicated areas and issues understandable.