Mediation and Settlement in the Surrogate’s Court

chess game conflict{Read in 5 minutes}  As a Trust and Estates litigator, I handle a variety of litigated matters in the Surrogate’s Court. This can be anything from a Will contest, to asking the Court to remove an Executor who has breached their fiduciary duty, to disputes over the amount of an inheritance, or even a contested guardianship proceeding. 

All of these types of litigation have two things in common:

– People feel very strongly that they are in the right both legally and morally.

– They are about to spend a lot of money in legal fees.

I love when people spend a lot of money in legal fees (hey! I got bills to pay!), but to do so is not always in my client’s best interest. Like any other litigation, any contested matter in the Surrogate’s Court can settle. When might an estate litigation settle, and what are some common terms of settlements?

Well, as far as timing, a matter can settle at any time. I’ve had litigations where we were able to settle the matter within three weeks of the client retaining me — and I have had matters where we have settled on the eve of a jury trial after years of discovery demands and depositions.

So, there is really no wrong time to settle. Most commonly, parties are more inclined to settle after they have exchanged a little bit of information. A trip to Court is a good opportunity to do that and usually this can happen as soon as the Court has a return date for a Citation.

Very often the Court will allow the parties to conference the case with a Court Attorney, who is skilled and experienced in assisting parties in communicating and perhaps settling the case. While settlement may not be possible at this early time, it’s helpful to get the parties in the mindsets that settlement is possible, and get each of them to start discussing the things that may be important to help them settle the matter later.

What sorts of issues might a settlement agreement address? Well, first, obviously, the settlement agreement can address any contested property. This may involve who is going to receive beloved tangible personal property, or who is entitled to use real property that the family has always used such as a vacation home? Who would serve as the Executor of the Estate? What sort of debts are valid or not? 

I always tell clients that the most helpful thing for them to do is come up with a wishlist of what they hope to get out of the litigation. It may or may not even be realistic on the first pass. They may be asking for the moon, but it doesn’t hurt to start making priorities. It’s also helpful to think about what sorts of items are less important to them. These would present opportunities to settle the case on matters that may not be so important to my client, but are of tantamount importance to the other side.

Finally, it’s important to note that mediation is becoming more and more common in the Surrogate’s Court. This is the parties’ opportunity to meet with a mediator who is experienced in settling cases and helping them to talk through their differences and reach common grounds. Unlike an arbitration, mediation is not binding, so parties do not have anything to lose by going to a mediation (except perhaps the cost of paying the mediator).

Mediation can be an exceedingly helpful tool. Some of the Surrogate’s Courts have pilot and voluntary mediation programs; others do not. Even when appearing in a Surrogate’s Court that does not have a mediation program, the parties can always consent to an outside mediator — perhaps a retired court attorney or even a retired judge of the Surrogate’s Court — who can help them work through their issues and see if a mediation is possible. It’s almost always worth it to try. Parties who are reluctant to mediate at the inception of the litigation can always circle back and try mediation later on.

Finally, I always encourage clients to at least consider settling. This is a decision for the client to make, not me.  And while I do love collecting legal fees (did I mention I got some bills to pay?!?!), if they can reach common ground with the opponents, I would much rather see my client retain a larger portion of their inheritance by settling the matter quickly.

If you would like more information on this topic, please contact me.

Thomas Sciacca

 

Thomas Sciacca

www.sciaccalaw.com
Tom@SciaccaLaw.com
(212) 495-0317