Mediation in Probate and Trust Disputes, with Mediator Lee Jay Berman

0:02 As a real estate agent in probate and real estate trust administration real estate, I often deal with attorneys and often times they're fighting with each other. So, that's more of the before picture, but obviously the goal in many cases to come to some resolution that both parties can live with and there's different ways to get there. Mediation, arbitration being two of them. Really lucky to have here a guest back again. He's attorney but he's also a focuses on mediation. He's going to talk to us about arbitration and umpiring as an attorney in the legal matters. Lee Jay Berman, thank you for joining us again.

0:33 It's my pleasure, but just to set the record straight, I'm not an attorney. That's the thing. I'm sorry for that. I didn't so I'm so sorry about that. I didn't mean that.

0:41 Perfectly all right. I work with attorneys every single day. I'm in the middle of them and like you said, they're taking opposite sides. They're, you know, protecting their clients' interests and I've got a different goal. I've got a goal of helping them bring it to closure.

0:53 So, I take that as a I get mistaken as attorney partially because I'm around attorneys. I speak like them. I deal in the legal world like you as well and I take that as a compliment that they're complimenting my professional demeanor at least if nothing else. So, what's interesting now you're we're going to talk to you about your role mediation and arbitration. But, you're not an attorney and I know there are a lot of mediators who are judges which can be impressive, but I don't know necessarily they have the people skills. Depends on who they are obviously. And, you know, I know there are attorneys who do mediation and again you can be a great litigator and or a great technician of law may not make you suitable for mediation. Yet, here you are. What is it makes you suitable, qualified, successful? What character traits do you lean on to be successful as a mediator?

1:46 Well, thank you. Great question. I've got a couple of bits and pieces to the answer. The first is you're right. It definitely depends on the personality of the person. You've got judges who are very warm people, but they spend their careers being taught not to let any of that show, to show the poker face, not tip your hand about what you're thinking. And they're basically taught to be ice cold on the bench to a certain degree. And you do have seasoned litigators who know the law forward and backward, but that doesn't always translate into what a client wants or needs or is able to do. So, in terms of what makes a good mediator, I think it's a beautiful combination of understanding about law, understanding about families and family businesses, understanding dynamics of people who are in conflict and what their brain is doing and how to talk to them to help calm them and de-escalate them, and then approaching the rational space. Because when they're in the heat of a conflict, especially when it's a culminating moment, they're coming together for a mediation, and they know this is the day it's going to get resolved. They're tense, they're anxious, their amygdala's triggered, they're not always making sense, and they're hugely emotional. So, it's being able to work with people to bring all that together, help them see a future that looks different than the present tense looks, and being able to connect to them, listen to them, and meet them where they're at.

3:14 Seems to me like in most businesses there's different flavors of mediators, right? I can imagine as an attorney or family law mediation, I might want somebody who's a Supreme Court justice level of knowledge of law, because I think I'm right on the law, and I want somebody to cram it down their throat. And I can imagine at the same time, you want somebody who's going to argue your case if they're right, and maybe want a litigator style. And I, like you just described, I can see there's a there's a whole world of cases which really about communication and the emotional side, and it sounds like that's kind of area that you play into where maybe not being attorney isn't such an issue, it's more important about to have the soft skills of being able to, get them to come to some agreement or see the facts or lay them out for them.

3:54 Yeah, so don't get me wrong. It we need to know the law. We have to understand what's going on and doing hundreds of these kinds of cases is part of where that comes from. I mean, I've spent 30 years having the best lawyers around, you know, I want to say in the city but beyond also educating me through their briefs over 30 years and I've seen more than a lot of let's say 5-year lawyers have seen. But it's not just soft skills. Some of it's hard skills, too. And what I mean by that is understanding how a negotiation plays out, seeing the strategy of the chess match, and being able to persuade people. Like it's the people who are law experts that you talk about who do what I do it exactly the way you described. They walk in and they bang people's heads together and try and convince them that they're wrong. I had another friend of mine who went through a probate mediation with a retired judge mediator who came back out and said, "I understand, Lee Jay, now what you do. You go in both rooms and you tell everybody their case sucks and get them to compromise."

4:59 That's 1% of what I do, but it's about persuading people and helping them see things differently than they see them because people get locked into their narrative, especially with probate cases. So much of it is, you know, mom liked you better always and now's my turn to get my comeuppance or whatever, you know. There's a lot of that goes on and it's real. You know, we can't shrug it off. It's what's keeping people litigating instead of moving on with their lives. So I've got to learn what that is and I've got to find the key that unlocks it for each of those people.

5:34 When I grew up in high school and college, I was on the debate team and it seems to me that well, I did it competitively kind of basic tool that was taught in high school was how to analyze information, how to make decisions, how to evaluate data and information. It seems that, you know, along with just the general decline of education, our society has really lost the ability to listen to the other side and make a coherent argument. You know, in politics, you know, I find myself in argument with somebody and I'll say, "Okay, you say he said that. Have you ever seen that person speak for 5 minutes?" See, I like to watch the primary source on both sides of the issue cuz I want to know what the arguments are. And what happens is they're not listening. I imagine a mediation, that's the problem is you have one side who believes they're right, they filter everything through with I'm right and he's wrong, he's a bad guy, I'm a good guy. And so then your job has to be somehow to get them to open their ears or eyes and at least, you know, open a little bit to be the possibility that there might be another alternative besides they're right and the person's wrong.

6:36 Exactly. I can see that my internet seems to be acting up here. I'm sorry about that. But yeah, it's that. It's moving them from a right-wrong frame, from a blame and all of that sort of focus on the past tense, who did what to whom, how did we get where we are here. That's relevant in the first hour of a mediation sometimes. But really, our job in a mediation is to figure out now that we're here and we have this problem, where we're going to go from here. It's present and future tense focused. It's not past tense it's focused. So, you're absolutely right. It's the quality of how people listen and that's so often a role that I end up playing where a lawyer will say to his or her client, "This is a problem. You have to recognize this." And the client will filibuster or the client will gloss over it. And if I look at them and say, I'm just enough for They hear it from a different voice or to see that their lawyer and I agree.

7:50 Yeah. Sometimes it's just to see that their lawyer and I agree and that they might be on the other side. Yeah, and that's the challenge is to get people just sometimes just to stop. Now, I don't My wife's not here, so I can say we've been married 39 years, and that's also true in all relationships, right? It's sometimes you won't get the other side to agree. It's easy when they've upset you to yell and scream. That closes their ears more. The challenge is to kind of let them out a little bit and talk about their position and then, you know, present to them some alternatives. So, I know that, you know, you described your mediation style or success mediation as more of an art than science. So, this is the art. The art is in interpersonal relationships and this also sounds like

8:30 Yeah, the art is reading the room and figuring out what it needs because, you know, there's you've heard the old adage, we all have, that if the only tool you have is a hammer, you tend to see most problems as nails. And I think with mediators, there are a lot of those out there running around with hammers looking for a nail. And for me, it The art is walking in the room and figuring out who's angry with whom and who's being realistic and reasonable and who's not and how do I help them see each other's perspectives better and sometimes articulate each other's perspectives better to them. It really is about reading the tea leaves, figuring out what they need from me, and that's different every day, which keeps my job interesting. But I Yeah, I couldn't walk in with a formula. That wouldn't work.

9:19 So, I might just I live this all the time. I literally today I was talking to a lady who I had referred to her attorney to file probate and she has a sister who's saying she wants to compete to be the executor administrator and she's already upset. She's upset about the fees. I said, well, you filed your probate. Like she needs to either get attorney and file something or at least show up at the hearing and object. I just want to talk the clock is ticking and I rather and cuz my this person referred was like, well, do I need to get a different attorney cuz we're going to litigation. I said, let's first get the filing to the hearing and see what the judge has to say because if they grant you the 30, no, you don't need anything. It's done. But she's looking for a scrap. Like she's looking already for a fight and maybe that's what they want. Like maybe they should take a vacation and go somewhere and box and beat each other senseless, but I don't want to participate in that personally.

10:14 This is it's awful. There we go. So, I agree. You know, it sometimes they are looking for a scrap. Sometimes it's got roots that go generation or decades back. Sometimes they're just scared and they don't know what to expect.

10:35 Right. And so they're putting their gloves up because they don't want to get punched first, but it takes a good lawyer to help explain to the pro the process to them and help them understand what's coming and what it means. I You know, you shouldn't have been having to do that for her, but it's good that you were there to do that.

10:53 Well, I'm not going to give her as I said to I'm not in that role. But then it's also I'm trying to say I can't give her legal advice, but I can give her business advice and business advice is sometimes just play the cards you have and you know, don't start buying cards you don't need yet. You have to buy value yet. You're still in the game here and from a business point of view, I know I just hope it doesn't get to litigation. It's just So, okay. I don't want to get from my own case too much here. It's part of business. So, your mediation website is mediationtools.com. I talk about a couple some that you feel like you bring to a high conflict private mediation? What are some of the specific things that you do that may might be different or at least that you talk about?

11:40 Great question. The first is really learning and getting up to speed. I'm a pretty quick study, but I read The lawyers will give me briefs before mediation where they'll summarize the dispute, they'll cite the law, they'll tell me the factual history and the pattern and build a chronology for me. I read those twice each. The first time I read it so that I understand everything about the facts and the chronology and you know what each side's claims are and all of that. The second time I read it to figure out what's this lawyer trying to say to me that they don't necessarily want anyone else reading this to understand because there's a big difference between this is absolutely a million-dollar case versus my client believes this is a million-dollar case

12:29 Yes. Versus we would love to see a million dollars out of this, but we understand there are risks. Like how they say that sentence just to pick one. Tells me so much about what they're trying to say. Sometimes the client needs to see the million-dollar number in the brief, but the lawyer knows it's not realistic. So they'll frame it in a way that they expect me to understand where you know where they're coming from. So that's the first thing. I love nothing more than when a lawyer is saying, "Well, for example, we sent them a letter about this telling them I don't remember" and I'll look at them and say, "The December 7th letter." And they'll say, "Yes, exactly." Because I want them to know that I know their case at least as well as they do because that's my job. Then the next thing is figuring out how everyone in the room feels about the case. Does the lawyer really believe in the case or is the lawyer bluffing? Does the client feel emotionally connected or you know does the client just want it over or are they sick and tired of this family member or you know the executor or whoever. I want to understand all of that.

13:33 Pardon me. And all is necessary and it all goes into the stew of what makes a mediation successful. And then there's the negotiation, figuring out what everybody's going to do. You know, when you've got somebody who says, "We think we deserve a million dollars." And then the next thing out of their mouth is, "So, if we don't get 100,000 or more today, we're leaving." And you're like, "Wait, what's that message you're trying to send? And what's your real number? And what is it that you really need? And what does the 100,000 represent to you?" Cuz sometimes the 100,000 represents he gets to keep the So, we ask a bunch of questions and drill down.

14:29 You know, it just occurred to me as you were saying this that you know, you must hear, like I do regularly, that, you know, "This job's going to go away because of AI, and that job's going to go away. We don't need attorneys. I can just go to ChatGPT and get an attorney." I thought to myself, "I wonder if both attorneys would be willing to take all the pleadings and documents on a case, each side, for mediation, and just throw in ChatGPT and say, 'ChatGPT, you be the mediator and decide.'" You know the answer's no. They're going to say, "We need a person here both to make the right assessment, but to help us communicate, to help us That to me that's the ultimate proof that your job would be AI-proof. Now, I'm sure you need to use it to help you analyze or, you know, there's tools to be used to help you do your job, but I think that it just proves that certain things that require human interaction. I imagine mediation would be one of the real ironclad ones.

15:19 So, let's bifurcate because if you rear-ended me in a car, at that mediation, I'm there. I've got my neck brace and my arm in a sling, and you're not even there. You're out playing golf. Your insurance adjuster is there with their defense counsel, and it's just volleying numbers back and forth until we reach a compromise. That, I believe, AI can do pretty efficiently. But, when you peep at the day of this, I just needed to be done. There's no way for AI to factor that in. And if you have somebody else who says, "I'm going to take this to my grave. I'm never going to give up this litigation." You know, there Those are variables that play into the negotiation. They affect whatever number AI may think is a reasonable number. And then, the other thing is part of the art form of what I do. And this is one of the things that the lawyers who come back to me over and over know, sometimes I can be successful at turning a fight like this into a real win-win. Like, helping them say, "I want to know that I'm never going to run out of money, and so I want this much today." And maybe the other side says, "We'd be willing to buy an annuity for you that will Like a life estate, it will pay you until you're done, until you the day you pass, and guarantee you that money if you'll give us X and Y." And those Hearing what people need and finding a way to fill that need is something that AI can't do, at least at this point.

17:00 No, you're absolutely right. It's It is I actually my wife has a family member who is an attorney, but he created a software about 10 years ago, designed to mediate, where both sides put in numbers, and they go back and forth and back and forth. And I said, "Well, that's great, but if you're never going to get your point across to the other side, number one, you can't narrow that gap without exchange of good information. And I think two, it's just too easy to be positioned. And then that if you can come to agreement, you end up going to trial versus the goal of the mediator, I think, is to get to a mutual resolution that's maybe not as good as either side wants, but it's better for both of them combined than they probably would get if they went to court.

17:41 Exactly. I you know, think about a real estate deal. Like, how do you factor in the market is doing this right now? So you have a seller who wants to sell as quick as possible because a month or two from now it's not going to worth as much. And you have a buyer who wants to take their time and stall. Flip side, if the market's going up, you got a buyer who wants to close the deal and a seller who says, "No, let me just mull this over. Let's litigate another 6 months cuz I think it'll be worth another 300 grand if I wait, you know."

18:19 And I think but I do think ultimately more information at least there's irrational people, but at least more information will help rational people make a better decision. I think one of the things I try to do as a real estate broker when we're negotiating sales is make sure my seller knows the carrying costs. It's easy to say, "No, we're going to cancel the escrow over a $5,000 dispute." But I would say to them, "Look, it's going to be another 30 days on the market, another 60 in escrow, that's 90 days. And your carrying costs in this property, and you've forgotten interest is maybe 8,000 a month. And I'm not saying you should give them $5,000, but just be aware of the cost. And you can make an informed decision. And I always feel like an informed client will almost always make the best decision. My job's to give them all the pieces in a way they can analyze. And if I don't, they're going to make a wrong decision. I'm just helping them do that.

19:06 And that's why you'd be a good mediator because you're looking at all the variables, not just the ones they're emotionally attached to. I can see your client saying, "I'm never giving them $5,000 more. Over my dead body." Right? Cuz that's the emotional thing this person has pushed me far enough and then it's negotiation. I'm not going to let them push me more, but it's actually in their best interest to negotiate something in, you know, 5,000 or less range because of the carry cost, but without a level head in the room, they don't think about these things.

19:36 Yeah. Yeah, and same deal. It was funny cuz the agent was just insisting their entire there were huge credit Well, huge for this transaction, like $3,000. And I said, "Well, based on what? Like, did you said you sent contractors out. Where are the estimates? Like, show me $3,000 of work you're going to do." And took a week, she couldn't get to me. I called every day. Once I realized she didn't have it, I called her every day just to make sure she knows that I know she doesn't have it. And then we got this bogus estimate that we then crossed with another vendor and instead of 16,000, not 30. It would cost us $1,200 to fix the problem. So, I said, "So, do you want do you want $3,000? You want to fix the problem. You said you want to fix the problem."

20:15 Yeah. And they ended up as result, the their buyers ended up closing because they got, to your point, we found what the problem was. The problem was it were with the pool, the air conditioning, and something else. So, we fixed the pool, the air conditioning, and something else. They're going to buy the house. That's what That's all they really wanted. They didn't want to win a negotiation, they wanted the house.

20:32 Yep, that's just it. It's, you know, sales, I've always heard, is find the problem and solve it. Yes. Find the need and fill it.

20:42 Yes. And mediation's not all that different. It's a concept of helping people figure out what's really in their best interest and then helping guide them toward that.

21:05 It You know, it's a good deal in the end and they're going to realize that. I think I read somewhere in researching you that you've mediated over 3,000 cases. Certainly a lot. We'll stick with a lot.

21:20 3,000 Yes. How do you avoid How do you avoid compassion fatigue? I mean, you have to show compassion to both sides. You have to be polite. Of course, we all have to go through life being polite. But I'm sure out of 3,000 a number of them are unreasonable, right? On one side or the other or both. And yet you yet be compassionate to those people and respectful and so on. How do you avoid burning out on that? I mean, it's got to be tough.

21:45 So, my advice in my profession and in most professions is really simple. Stay curious.

21:53 There was a Ted Lasso episode that's become famous about this, right? Stay curious. Learn every day what you can about the people in front of you because they're different people, they have different stories, they're from different places, they have different expectations about how the world should treat them, how the transaction should have gone, what kind of house they're entitled to even if they can't afford it. You know, everybody has something different about them. So, I get up every morning and I go in curious to see

22:26 Pardon me. To see what people are going to say, to see what they're going to ask for, to see what they respond to. And that makes every day different for me, like truly different.

22:37 I also do different kinds of cases. I do I you know, I work in different areas of business in the law and family business and all those sorts of things. And so for me it's not the same exact thing this the same fact pattern every day.

22:53 But I just I love understanding the people and helping them through the process. I know that some have like a set process that they only one day or certain number of hours. Other ones are much more individualized based on the transaction and the depth of it. How what's your process look like? I'm sure various in some cases, but in general, what's the what's the process look like?

23:15 So, what I actually do, the process looks like, I get on the phone with the lawyers if everyone's got one in advance of a mediation. And we say, "What do you need in order to advise your client? Is there is there more documentation or, you know, something that you need, discovery they would call it, right? But where are you and what do you need just to make a good settlement decision?" And then, "Who needs to be in the room? Who are all the decision makers? Give me the spouse who's maybe not on title but is going to influence the decision of their partner, right? Give me everybody in the room that we need." And then, "Tell me about the case. Tell me what to expect. Send me the brief to give me all the facts and details." And we build the process on that Zoom call with counsel. And what it does is allows us to custom tailor it. You know, if there's an issue with insurance or with the you know, contractor or something, we can sort that out first in a half a day and come back for another half a day the next week to figure out the rest of, you know, now how you know, how we're going to sell it and who's going to list it and you know, all those sorts of things. So, it really is custom tailored to what they're telling me.

24:24 And does that mean that you commonly have both parties, if there's two, in the same room? Or you never cuz I know there's some mediators who never have them in the same room. There's different processes and different theories on the case. What's your process look like?

24:35 That's a great question. So, again, it's custom tailored, but here's what I tend to look at. If it's early in a case, maybe it hasn't even been filed yet, it's just a dispute, or it's been filed but they haven't done a lot of discovery and depositions and hired experts. If it's early, it's usually helpful to have them in the same room because otherwise I can spend the first half of the day where I go in room A and they tell me this is what's real and I go in room B and they tell me it's nothing like that at all. And so having them together helps us sort through the facts when it's early and no one's on the record yet and you know, you're dealing with what people's perspectives and perceptions are at that point. That's more efficient in the same room assuming that you know, they can emotionally be in the same room together.

25:21 Yeah. If it's 2 weeks before trial, everything's been discovered, everyone's on the record, they're getting ready to go to trial and they just want to compromise, then separate rooms to talk numbers is a whole lot more efficient. So I look at what's the most efficient process that's going to meet their needs and it depends on what the conversation is they need to have or if they need to have one at all. Maybe it's just, you know, tossing numbers back and forth and trying to explain where those numbers come from and why they think they're realistic and you know, that sort of thing.

25:51 One of the phrase you used is having an iron rear end in mediation.

26:02 Yeah. What's that mean? I mediated a case one time. I knew that these parties had taken 2 months to select the mediator cuz they first called me a couple of months before. They went round and round. They kept coming back to check if I was available on certain dates. And I sat them in the room. And this was a case where an associate in a law firm was suing the department head partner and the firm for sexual harassment and religious discrimination.

26:33 Now the partner she sued had a reputation and everybody stipulated to the fact that this is a guy who would do things like throw his stapler at his legal assistants if they messed up. I mean, this was a guy with a hot temper and so he was a an low-hanging fruit defendant for her to sue.

26:53 There were claims about, you know, what happened when they saw each other extracurricularly, but they couldn't even decide whose house they were sitting

27:04

27:25

27:49 I think I lost you. So I think I lost you for a bit there. I don't know if you can hear me.

28:10 One So at the table

28:18 Yeah. So picture this. On one side of the table I have that lawyer, I have the managing partner of the firm, I have the head of the employment law department cuz this was an employment law case, and I have two lawyers from the outside firm they hired to defend them. On this side, I have the lawyer who is the plaintiff, who is the associate at the firm, and her law school friend who is now a very famous lawyer representing her on the other side. So I'm looking down this table at I don't know, six, seven lawyers and I said to them, you know, I have to ask you. I know you spent 2 months trying to decide who was going to mediate this case for you.

29:01 Right. How in the world did you decide on me? And they kind of looked across the table at each other like who's going to answer him? And finally the more senior statesman outside counsel for the defense said, "Well, no offense, but we looked around this table and we thought the last thing we needed in this room was one more legal opinion." He said, "We decided at the end of the day that pardon me, it what we really needed was somebody a mediator with an iron butt who would sit here with us until 1:00 or 2:00 in the morning if necessary to get this done today and that's where you won the drawing." I had a reputation back in that day of going until 2:00, 3:00, 4:00 in the morning. I had one that went until 6:30 in the morning. We went 21 hours on a on a big complex business case. And so that's what they wanted was let's open this patient up, let's cut it from neck to belt, and let's, you know, pull all the organs out and get it done and not like throw it back in and stitch us up to come back another day to finish.

30:09 Wow. Well, obviously the process is expensive. You have that many people, you know, think with their hours they're not billing, I guess if most of them they catch they catch really expensive.

30:19 Yeah, but you know, you compare it to even just a day or two of litigating when they're hot and heavy and expert depos and all that sort of thing and that money goes just as fast.

30:27 Wow. Well, speaking of going fast, our time went to go pretty fast together. I'm a little bit over time here at the end. I really cuz I enjoy you know, hearing and listening. I think this is very real. I don't often get involved with clients at mediation. I try to encourage them, you know, and when there's it's required by the court, I try to, you know, help prepare the client emotionally for the process.

30:47 Yeah. I think it's really important, but there's a such a wide variety. I think the thing I've learned in talking to you today and doing a few of these, there's such a wide variety in the styles and types and skill sets of mediators that you hope attorneys don't just pick the one they like. Though I hope your clients pick you over and over again, but they pick the one that's appropriate to get the result. And obviously you fit some of these, you know, in a way that some other people don't. So, thanks so much for your time today and for helping us. For anybody that's interested in more, you can go to mediationtools.com and then / if you put in there services and there he has his mediation business. Lee Jay Berman is a mediator as well as a executive coach and trainer. You I can see why cuz you've seen a lot of different types of businesses at dice level and executive coach and trainer. We will talk someday about some of those other positions as well. His contact information's here. If you're listening to this on the audio, reach out to me. I'd be glad to help make that possible. Lee, thank you again so much for your time today. I really appreciate it.

31:44 Bill, thank you for having me. It's been a lot of fun as always. Information, this is Probate Weekly. We get together every week and I try to talk to learn a little better how to service our customers in probate. Usually a probate attorney, but in this case a mediator who helps probate attorneys and families find a better solution. I know I learned a lot today. I hope you did too. Give me comments, like, subscribe, send a note if you liked it or didn't like it. Let me know either way. Or if I can help in any way, reach out at Bill Gross Probate on social media. As always, make today your best day ever. Thanks so much.