The Federal Arbitration Act and Testamentary Instruments

My wife and I just finished watching the BBC production of Charles Dickens’ novel, Bleak House, which I highly recommend. The plot centers around the estate of  Jarndyce and Jarndyce which had “become so complicated that no man alive knows what it means”.

 

Could Mediation Clauses in Estate Documents Reduce Contest Litigation?

Lela P. Love, Professor of Law and Director of the Kukin Program for Conflict Resolution and Stewart E. Sterk, Mack Professor of Real Property Law at the Benjamin N. Cardozo School of Law, explore the use of mediation clauses in estate planning documents as a method for reducing the emotional and financial costs of litigating a will contest. In Their paper, “Leaving More than Money: Mediation Clauses in Estate Planning Documents” opens with these remarks,

The family that built the Dodge company, the Johnson family of Johnson & Johnson fame and fortune, and the legendary Jarndyce family in Charles Dickens’ Bleak House, have several things in common—protracted litigation over an estate that involved generations of a family in a bitter dispute, wasting of estate assets, embitterment of family members towards each other, and the absence of a mediation clause in the disputed wills. In those and other family disputes over estates, the presence of such a clause might have influenced the other unfortunate events favorably.
At its best, mediation avoids the zero-sum, winner-loser aspects of litigation as a mechanism for dispute resolution and also avoids the havoc that an adversarial process can wreak on relationships. Those features, when combined with mediation’s potential cost advantages, explain much of the explosion in the use of mediation to resolve a wide variety of disputes, including emotionally charged controversies among family members. In recent years, a number of states have developed mediation programs for resolution of probate disputes. Measured by surveys of participant satisfaction, these programs have been successful.

To access the complete paper, click here.