Mediation for Executors, with Bracha Etengoff

0:00 Cool. Yeah. Welcome to the Executorium Podcast. I'm your host, Bill Gross, at Bill Gross Probate, where we interview services, vendors that can help executors be more effective as they handle the task of managing a estate, trustee estate, probate estate, whatever it might be. one of the common themes that people find when they get involved, particularly when there's a lot of money involved or a lot of assets involved, is conflict. And you really have two ways. One is you can go to court, which is kind of like shooting nuclear weapons at each other till somebody dies and you destroy the land that they're on. The other another option or alternative is mediation. I'm really excited to have today a practicing attorney who also is a mediator and a practicing mediator, Bracha. Thank you so much for joining us again, Bracha. Oh, thank you for having me, Bill. and I am happy at any time to talk about mediation. So, I'm real excited to be here. So I yeah, as I sit back as a real estate broker in the probate space and trust litigation space, I just see oftenimes it feels like a World War I battle where there's trenches and they're just shooting artillery each other and there's all kinds of bodies and blood everywhere when they go to court and mediation is an opportunity to avoid it. Talk about the alternative or the possibilities that mediation presents to a state that's in some sort of a conflict. Yeah, that's a good point. ideally we can get there before people dig into the trenches. once they've dug into those trenches, it gets harder, but we can still settle conflicts even after they've gone to court. Well, let's talk about the ideal situation where we see there's this dispute brewing and yeah, people are at the courthouse steps, but people don't want to sue family members ideally usually and you know, they don't want their privacy invaded by those court proceedings. And you know, it's really hard to sit across from anyone at like a Christmas dinner or a Hanukkah dinner while you are suing

2:05 Them. Not to mention the expense like you said it just drains away the estate assets. So mediation is a really great alternative. and what mediation is is really a neutral facilitator who comes in and tries to help the parties reach agreement. So unlike a judge or even an arbitrator, we don't impose our decisions on the parties. So they have a lot of agency to craft solutions that are really the best for them and that they can say, "Oh yeah, this is really what we decided on." Which then have a better chance of actually working, right? Because if you and I are fighting and we decide together with, you know, someone's help, this is how we're going to resolve it. often that will prevent further disputes in the way that if some other third party came in and said, "Here's what you're going to do. Well, maybe we'll keep fighting." Right? You know, as a real estate broker, I often come in kind of the middle of a conflict that hasn't set the trenches yet. And I'll call one a party the other. somebody's in charge. They want to sell the house. The other party for whatever reason, I'm talking to them. And the attorney sometimes I find like from the beginning is already attacking me where I have no I have no dog in the hunt. I just somebody called me wants to sell a house. You know, I'm glad to help them. Now I think I'm good at walking through that. But what I find is that often times attorneys once they're hired by a client, they feel like they're already fighting for them as opposed to maybe just listening and assessing what the best solution. Maybe the best solution is not fighting. It's kind of like, do you want to hire, you know, a bodyguard who's armed or maybe you should hire somebody who knows the circumstances and can help assess? If you need a bodyguard, hire one. If you don't though, here's a way out. And so I think, so how do you handle, you must make those same phone calls, those same

4:06 Attorneys that I talked to who are just, you know, guns ablazing from phone call one. How do you get involved with them and get them to just kind of stop for a second and say, "Let's let's assess this before we assume that somebody's right or wrong or there's only one solution." It's a good question. you've probably found that in some of the cases it's bluster and attorneys feel like if they don't come in with the guns blazing, the other party is going to think they're weak. But when it comes down to it, they're actually, you know, on the settlement train and, you know, they want to do what's best for their clients. there are unfortunately, you know, kind of the other types and sometimes I see requests for an attorney. Oh, I need a pit bull. Oh, whenever I see animals involved, I'm like, all right, let's take a step back and be human beings, right, to each other and for our clients. And I think that you've really hit on a point because we have a duty to be zealous advocates for our clients. But what does that mean? Do we zealously advocate into the dust for, you know, only our clients who, you know, get the best share of the pie? Or maybe we have a client who says, you know, I want a fair solution for everyone. I want this wrapped up quickly. What can you do for me? Well, then we're supposed to be advocating for those interests. and I guess as somebody who's a probate professional, you can raise this. I have encountered many attorneys who are not aware that, mediation can be used in the estate space. So, if you kind of brought it up, I'd be curious to see what reactions you get. You know, in Los Angeles, there is like a free program where I think attorneys, retired judges volunteer time, a certain amount, obviously limited obviously limited what they're going to do. And I and like everything else in life, I don't want to say you get what you pay for because you're getting an attorney's time and not paying much for it, but you also

6:10 Aren't going to get much, right? And I think that the question I always ask is, well, is there a track record of success? I mean, are you going to mediator who historically has been able to bring people together? Are you going to mediator who he just grinds through the cases and is just another step in the litigation process? And so, how do you express, you know, how do you share your success and your skills without bragging? I mean, one of the challenges of attorneys is by your nature, you're not salespeople. By your nature, you're not looking to market yourselves. And yet, if I'm looking for a mediator, I'm looking for somebody who can get the job done. I'm not looking, look, you're very nice. I want to hire you just because you're nice. to hire you to solve the problem. So, how do you get across to prospective attorneys who come to you or executors that you have a track record or you have the skills to help them get what they want or more probably you'll just get the job done that they want. I suppose that without too many identifying details, I can talk about a case that I've been able to settle previously and let people kind of draw the comparisons and analogies to themselves for themselves. I think also when you speak to someone and they're knowledgeable and effective it could be bluster but sometimes the truth of it does come across. I think as attorneys we have become very good at sussing out is this person just kind of selling this or do they really have something that's you know maybe a track record of success. you know, I can't put names of cases I've settled on my website. You know, confidentiality and just the way I would want to treat my clients anyway preclude me from doing that, right? But, you know, I can certainly talk about cases with, you know, maybe some identifying details changed and, you know, people get the sense that she's not just making up, you know, this very detailed story, right? I'm kind of the same way. I've had people ask me sometimes, well, can I get references some clients she sold houses for? And I said, to be honest, I rather not bother

8:13 Them. Like, if you don't get that I'm good for you by now. That's okay. You know, I have other phone calls to make. I have other business. I'm not, you know, don't be disrespectful. Don't say wouldn't like to help you. But what I don't want to do is bother my clients with phone calls, my past clients with phone calls about my business. It just isn't nobody signed up for that. And again, I think it comes across if you talk about their case and their problem and you do it effectively, they're going to be interested. And so I think the first step is just to talk to the parties and get a sense. So do you have let's say that an executor is interested in mediation? Of course they're on one side there's another side or they have an attorney and their sense is the attorneys are just kind of battling and running up the fee and they want to find out the opportunity for mediation. Do you do consults with executors or attorneys before you take on a case and talk about a little bit? I do. I'll you know the first person who calls me I'll usually speak with for about half an hour because people need to be briefed you know what is this mediation business it's different than what my lawyer is doing for me and really getting the point across that I don't represent any party as a mediator so it's very different than an attorney actually and we have a challenge we have a natural bias towards oh let's advocate for someone and we have to kind of get out of that headsp space as mediators.

9:37 So, you know, somebody comes to me and I explain basically what mediation is, what the process looks like. People generally ask for some sense of what it might cost and I talk to them about the factors and at that point they really need to call whoever it is that needs to get on board with this idea kind of on the other side and find out if they'd consider mediation. And occasionally somebody comes to me and they've done that step already and I can, you know, just kind of straight off meet with both parties and have a very productive and substantial kind of first session. More often I get a call, you know, I heard about this, I saw it on your website or I know there's mediation for divorce and so when I saw it, I thought, oh, that could be a good alternative. And what exactly, you know, does that even mean? mediate. So, I know you do mediation in the states and those things. You also do mediation divorce. That's got to be a challenging having I've been married fortunately for 36 years. One day at a time, I'm hanging on here by my by my fingernails. But I've been married but around me surrounded with people who get divorced and it's just you know my our best friends like three or four of our best friends and we're so friendly with both sides and one side will tell you the story and like we've known you for 20 years like what do you think you're telling me here and the other side and I would think what does the mediator go through? what's that like divorce mediation? Well I actually trained for divorce mediation and I made a decision not to practice divorce mediation. I'm on board with that. Are you ready? Are you So, you know, you've identified some of the challenges right there. I do practice prenup mediation and like estate mediation. A lot of people don't know that that's an option, but the what you've identified as lawyers being in the mindset of, you know, being adversarial and getting all

11:40 The best for their clients. Sometimes people walk into prenups with that same mindset, but really this is a time when people love each other and sometimes the spouse with more means wants to make sure the other person's taken care of, not give them as little as possible to still get that person to marry them. So, it's actually a prime candidate for mediation. And then we have what's called review attorneys. Each party gets an attorney to review the ultimate draft. But besides for that, I do spend a lot of time in the estate and elder mediation space. So you know I leave divorce I guess to many other competent people. It's a very crowded field. But I will tell you that estate mediation has its challenges all of its own because siblings right often we've got siblings inheriting and siblings kind of do not have to resolve their problems. So, it's true that some people stay married and don't resolve anything, but often things are pushed to ahead, right? Because maybe they're raising kids together or they're just spending so much time with each other. and siblings, you know, they may have these deep-seated issues and believe me, I see them come out in mediation, but because you're able to just maybe spend some holidays all at mom's house and then everyone goes home and maybe you do it again next year or you saw each other at the funeral. but now what I think that because it doesn't have to be such a close relationship that creates challenges all of its own when you need to do something so personal and reach agreement on splitting up assets. Yeah.

13:24 I think generally speaking people feel the need to maintain a relationship with parents. They don't and I do myself I have two siblings one of each feel the need to continue the relationship with them at all costs and work through whatever it is but many people don't. I was like, "Well, just my brother and you know, we didn't get along. We were kids." And it's like, "Well, that's a choice. I mean, you know, I that's not my choice. I think that's a mistake." And when you obviously in any mediation, when you go into it with this relationship is of value to me, you're you're going to be a lot harder to work with than if you appreciate the relationship, then you have to make some sacrifice in order to keep the relationship. There's value there that you have to work towards, I think. So, okay. And then so let's talk a just you know kind of I have to wrap up a little bit timewise. I appreciate your time and we're respectful but let me just kind of talk about what do you think is the biggest mistake that leads to conflict that you as a mediator help unwind? Like what is it that you bring? Because everybody says well I'm a good negotiator. I'm a good mediator. We all think we are. It's like we all think we're you ask the question I think 90% of Americans think they're better than average drivers. And that's not that can't be right. Scary. Yeah. That's a true that's a true statement. So, we can't all be great drivers. We can't all be great mediators. We can't all be great negotiators. But because you do this and you probably see other people's mistakes when they come to you, what do you see as maybe one or two of the biggest mistakes that people make on their own that you as a mediator can step in and help resolve?

14:47 You know, and I think this speaks to your question. in a recent estate mediation, I had, two siblings, a brother and a sister. And the sister brought up an issue in a session and she said, "And I feel safe bringing this up, you know, because Bracha is here." And to me that is actually I know everyone wants to know settlement stats, but to me that's actually as meaningful as like to me that's very high praise. that's quite that's quite as important to me as you know did the case actually get settled because people in order to even get there people have to be somewhat free to open up. So can you clarify again what direction you'd like me to answer? No, I think you asked it which is I think sometimes when people feel at least my experience I'll have somebody like yelling at me or very upset. I say do you mind either we take this conversation to text or email we have a record or I record this because what I don't want is a lack of accountability. You know I find that when people are arguing yelling each other they can say whatever they want because it kind of disappears in the ether. But when the third person's in the room they kind of have they know now they're accountable for what they say to some degree. You're paying attention. And I think some just bring a third person in rather than record the conversation, bring a third party in. Bring some accountability to one's positions and one's logic and one's decisions and one's positions. I think that's why I think one of the biggest things a mediator does is just add some accountability to the process. Oh, 100%.

16:26 I started off my mediating career in foreclosure mediation during the housing crisis. Yeah. Way back then in '08. And really half of the purpose was let's set a schedule. So I was mediating for the New Jersey courts and as I'm sure you know being in this space you know what was happening was you know people were sending documents that banks requested and banks didn't get it and or banks didn't process it in time and by the time the bank processed it they said oh no we need your most recent paycheck. That paycheck is too old. But when you sent the paycheck again to the bank, you know, it's again too old. So, excuse me. So, a large a large portion of it is yes. by the next mediation session or let's set a date, you will have explored for example creative mortgage alternatives. I give you someone you know that you can call who works with people. Let's say you don't have an a lot of income showing on the books. Let's say you've got bad credit history. Well, there are still loans that you can get, not like lone sharks, but real loans. they will be, you know, at higher interest rates, but at the end of the day, the person who I'm speaking with does have to make that call. So, with mediation, there is an element of I can hold you accountable, but again, because I'm not the judge, I can't sanction you if you didn't make that call. but ultimately, you know, if both parties aren't fully participating in the process, then that tells us what we need to know that they're not or one or both are not really willing to resolve this and the other person may have no choice but to bring a partition action because, you know, they would like some portion of their inheritance while they can still enjoy it. Maybe they haven't been able to buy a home of their own. A lot of people when they inherit you know half of their parents' home for example that's when they can finally become

18:29 Homeowners themselves. So you know I sympathize with that completely. You know I people can't wait forever. So both parties really have to be committed to finding a solution. Yeah. Yeah, I find often as a real estate agent when people have an inherit with multiple siblings and there's the one sibling who's holding up the sale that sometimes the other sibling, you know, the good guy, good gal, just doesn't believe that the brother is willing to be dishonest and continue holding up the cell for no reason. And when I think getting it to a conclusion, say, "Yeah, he's not willing to meet any reasonable standard of solution here." it gives them clarity at least to now move forward with the difficult choices but at least with the conviction of knowing you've done everything you can and I think mediation I had a case exactly like that so I know exactly what you mean and from the beginning you know the other siblings said you know if I didn't love you know if I didn't care I would have been in court a few years back I would have brought a partition action that's what all the lawyers tell me to do but you know this is my last shot with you. and that was actually the client who wouldn't make the call.

19:47 He wouldn't call about the creative mortgage solutions that he needed that he could access. Like I called to head right to that professional, but ultimately you have to make the call. And ultimately, you know, his sister had to realize, you know, he is not on board. He is not on board. And she had to get to a place where she felt, you know, I did all I could. I want to be a good sibling. yeah, but you can't wait forever. So, you know, you I love that you brought that up because everyone wants to settle, of course, and that's our ideal solution as well, but sometimes that reality testing and that feeling like I've gotten to the end of the road. I've done everything I could is a success in itself. Right. Right. Right. I think that that clarity at least gives you the chance. And I also think for the bad sibling, meaning living there forever, not being responsible, not paying for anything, really stealing from their siblings without their choice, right? The siblings didn't say, "Oh, we're going to agree to pay you $1,000 a month of value, living here free. We're, you know, we didn't have that discussion. We didn't have that agreement." I just don't think it's healthy spiritually for that bad sibling. they have a chance, you know, if they sell their third share, they can live in cheaper quarters, move to cheaper area, find a roommate, live on the money. There's a lot of options there. But the option of I'm just going to steal from my siblings is I just think inherently bad. And I think getting the siblings who want to resolve things, at least the clarity, even if you don't resolve the matter with the brother, resolving it can be he doesn't want to resolve it. He wants to live for free. He wants to live on your good graces forever. and that's not really a good option for you and for your kids and your family. that clarity at medi at the end of the mediation even if it fails the mediation to resolve matter is a resolution I think that helps people. Yeah, absolutely. you know, I do guardianships as well when an elder needs protection and you know, I do elder mediation. Can we form a caregiving plan for this person with

21:52 Different people in the family contributing that's going to be sufficient so that we don't need that, you know, removal of independence that guardianship implies. And I had really excellent trainers for that. and they said, you know, there is a reason that guardianships exist. There is a reason we have courts. and there is. So, you know, not every case, unfortunately, can be resolved through mediation. We do tell people that. that said, I have been able to resolve quite a few, and I'm happy about that. and you're right. in terms of what you say that that we that there are other options, you could find a roommate, you can downgrade. I don't usually see the person who's living in that house that that you know they inherited only a share of wanting to do that. I hear I want to stay here, right? and not a recognition of okay, I'm single. I have only one income and this house, you know, is it a pricey area and if I were starting to look for something tomorrow, I'd know I couldn't afford that, right? Or this feeling of but I have to live in this expensive area of the city. Like what else could I do? And of course I need three bedrooms. So people have gotten used to a certain standard and that shift in mindset.

23:17 You know, I like to think I'm flexible. I like to think I could do it. Who knows, right? Like, what do we know until we're in that situation? What I see is that a lot of people have a lot of difficulty with that shift. And just facing that reality of, you know, I can't have the life that I've been used to having anymore. Well, they were never launched or responsible adults. And so now either this changes them or if they don't change, you know, they're not responsible. They don't have the ability to see life as I need to take care of myself. They're they're just used to mom and dad letting them stay for free and that's never ending. Look, Brock, obviously I love chatting with you again. Yeah. No, that's all right. It's a pleasure. We I'm a little over time here with you. but for those who are interested in following up on mediation alternatives and or estate questions in general guardianships conservatorships the law and mediation office of Bracha Etengoff phone number [phone number] and the website is brachalaw.com and if you go there you'll see a nice picture of her as well as description of her legal services and then also the top right corner is a click phone call and you can get in touch with her as well. And then Bracha thank you so much for your time today. really appreciate you being on behalf of my pleasure. yeah, I hope I didn't overstay my welcome because I could talk about this forever, but thank you so much for raising awareness. It's me. I enjoy this topic a lot and I and I'm in this space a lot where there's a conflict and I wish more people turn to mediation. So I think my goal here is to try to advocate, hey, explore this alternative. If you're an executor, if you're an attorney, why don't you see if you can't bring another third party in that can help avoid because litigation, it just it's a it's a no-win. As a Realtor®, my house doesn't sell, but more than that, my customer doesn't get the money. The person living the house who's living there for free, it's not really good for them spiritually. I can say that, you know, on a personal level. it's just not good. And so, if we can resolve these matters more often, great. And Bracha, you're a resource to do that.

25:18 So, thank you so much for being on with us today. Yeah, absolutely. All right. You have a great day there. And for everybody else, this is the Executorium podcast. We get together week and interview vendors and providers of services from the program. Executorium.com is the website. If you go there, you have a directory of services, government resources, articles, and learning. If you go to the browse button and put in your county, you get a list of various vendors. In this case, probate attorneys and people dispose of items, people help you grief support, legacy management, all kinds. And then here we have under probate attorneys Bracha who also is under mediation the only person listed under mediation in New York County in this case. And so you go there and you see their information of the vendor and you can get more information. It's just a great resource. And I think there's other tabs as well government resources for free forms and such. and then the articles and learning to learn on the subject. So again I'm Bill Gross at Bill Gross Probate your host on Executorium [unclear]. We do we have a new episode every week. Thank you so much for joining us. As always, make today your best day