Note to Attorneys

Attorneys consulting this website may wonder how Pre-FactoTM Mediation can directly benefit them, in their role as advocates for a variety of clients, including fiduciaries, trustors of living trusts administered by third parties, trust beneficiaries, conserved persons, and the family and friends of those persons.
Pre-FactoTM Mediation offers your clients access to a safe, neutral environment within which non-legal controversies can be addressed and managed.
Agreements reached during these sessions are crafted to include later review by counsel before they are considered final, allowing attorneys the opportunity the option of managing the extent of their participation, from attendance at the session, to being accessible by phone or limiting their involvement to review of the agreement after the session is over.
If your client is a fiduciary, your client can use these sessions to improve communication with interested parties, manage expectations, and help avoid litigation.
If your clients are beneficiaries, conserved persons, or interested parties, the facilitative meditation approach offers them an arena within which they can express and process emotional issues in the presence of credentialed mediators experienced in matters of probate administration.

Enhanced Time Management and Billing Considerations

A key benefit to the use of Pre-FactoTM Mediation is attorney time management and billing.1    Referral of clients to a Pre-FactoTM session effectively addresses one the trickiest and most common dilemmas encountered during probate administrations:   what to do when making progress on a matter requires the attorney to devote significant time to the client's need to vent his/her anger, frustration, or dissatisfaction. In spite of the attorney's best efforts to limit client discussions to the resolution of legal issues, those efforts are often unsuccessful.

A common area of administration where an attorney's time to resolve legal issues is often secondary to time spent helping clients process emotions is the time-consuming process of disposing of personal property, especially the division of items having sentimental value to the client but little or no monetary value.

Whether to Include such time along with charges for legal counsel creates another dilemma for attorneys and a creates a potential area of conflict with clients.

In court-supervised matters, the Court's reluctance to approve fees in excess of the value of the underlying assets is well-known.

Recommending Pre-FactoTM Mediation to your client at the outset of administration provides your client with a cost-effective means of addressing emotional issues as well as gaining clarity on the administrative process. Once the referral is made and sessions have begun, the attorney can focus his/her available time on the legal aspects of the client's case while reducing the potential for free disputes or reductions.

Fostering Civility

In 2007, the State Bar of California Board of Governors adopted California Attorney Guidelines of Civility and Professionalism to promote civil conduct in the practice of law.2    The Guidelines are applicable to all areas of practice. Section 13 Settlement and Alternative Dispute Resolution is of particular interest.

Attorneys are encouraged to adopt the rules as a personal standard and as complement to their duty of zealous representation.

In such proceedings, attorneys are directed to seek to reduce emotional tension and trauma and encourage the parties and attorneys to interact in a cooperative atmosphere.

Vindictive conduct is to be discouraged, not abetted. Participants are to be treated with courtesy and respect in order to minimize the emotional intensity of family disputes.

The attorney is to raise and explore with the client the possibility of settlement and alternative dispute resolution in every matter as soon as possible and even advise the informal resolution of conflict at the outset of the attorney-client relationship.

The de-escalation of any controversy or dispute is given great weight, along with a consideration of whether alternative dispute resolution would adequately serve a client's interest and dispose of controversy expeditiously and economically.

Finally, a client's desire to settle a conflict quickly and in a cost effective manner is to be honored.

The use of ongoing, Pre-FactoTM Mediation to facilitate administrations of probate matters and "keep the small things small," can play an integral part in promoting civility in your law practice. The Pre-FactoTM Mediation process is a concrete expression of the values encouraged by the guidelines of Civility and Professional Conduct . A referral of a case or client to Pre-FactoTM Mediation exemplifies your commitment to these high standards.

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