The WAY to WOW Shows
Solve Disputes Quickly & Affordably
November 4, 2024
Automatically generated from YouTube captions; names and wording may contain errors.

[0:01] you and where are you going what do you [Music] want hello and welcome to trust and estate weekly I'm your host Kevin bemel and we are here every Monday at 10: a.m. Pacific Time although uh I guess it it really seems like what nine o' Pacific Time or something because we just had a time change yesterday so I know I'm feeling a little bit off myself but thank you very much for joining us and um I I want to get right

[0:38] into talking with my guests for those of you who saw any of my shows last week you know I've been um talking about Maryanne uh EV every day because I've really been looking forward to speaking with her so my guest is indeed Maryann Dean she is an a trust State Attorney based in the San Diego area and she also has a specialty pra additional practice in mediating disputes that that arise out of these same Arenas and and MaryAnn has has been at this for um quite a long

[1:13] time but I'm gonna let I'm gonna let her tell her story so uh Maryann first of all thank you so much for coming on the show this morning oh good morning it's a pleasure thanks for having me well so um my backstory who am I and excuse me and how did I wind up mediating trust and estate cases well um I started out as a landscape contractor and then worked for the city of San Diego in the Park and Recreation and the engineering departments for 14 years and during that time I decided I would go to law school so in 1990 I decided to go to law school

[1:50] changing careers completely I worked full-time and attended law school at night so it took four years to finish school um when I got out my grad degree is in Business Administration so after I graduated from law school and passed the bar exam in 1994 I started providing legal services to business clients helping them set their businesses up as as llc's or corporations reviewing contracts and Commercial leases and I handled some litigation cases for them one of my clients asked me if I knew how to draft a trust because they'd

[2:26] heard that was a good thing to do and wanted to put their business interest into the trust so I did what every new attorney does and said sure thing and learned about estate planning so I could do that work confidently too that led me to my first probate case in Probate Court and my introduction to probate court and other trust and Estates attorneys and I I found that I really like this work so by 1997 my practice was focused entirely on trust and estate law okay when when I had enough experience doing that work I

[3:02] qualified to become a California State Bar certified specialist in a state planning trust and probate law and expanded my solo practice into a small firm where we offer our clients legal services in the areas of estate planning trust Administration probate Administration conservatorships financial elder abuse will and Trust challenges and claims involving the administration of trust in the states my firm is called uh Bellator laog group and we're based um in downtown San

[3:38] Diego um over the course of my career just interject real quickly you mentioned that you got a um a specialization in the bar in this would you take just a minute or two and explain what that is and and and how how you went about that because I think that would be something very good for for viewers to know about that special credential oh sure well you you have to have practiced uh in the trust in the state's area for at least 10 years so you have to qualify with your experience okay you have to be in

[4:13] good standing with the with the State Bar and then you have to go uh take and pass uh a kind of a mini bar exam it's another test uh that's most of a day memory serves uh and then at some point later on on they tell you whether you're passed or not and I did and I got my certification and to keep that certification I have to take specific continuing education classes every year um that are focused at that level of um

[4:49] of well level of specialization there there there's there's continuing education programs for lawyers generally there are continuing education class is for uh trust in Estates lawyers or any other specialty uh and then there are some that are qualified for legal specialist um level education so that's it yeah and so that really puts you at the very of of lawyers who practice in your area it sounds like no yeah um it's a it's a credential that's good to have certainly and

[5:25] certainly um reflects my my level of exper and experience I guess those are synonyms for one another okay well yeah so so please continue with with the with your story oh okay so um over the course of my career I've litigated countless disputes in Probate Court and learned about the value of helping my clients reach early settlements instead of taking their case all the way to a court trial um incidentally with the exception of conservatorship matters MH all the

[6:00] fights in Probate Court are decided by a judge without a jury oh so uh and there's a little back story to that um there's a case that I won't site you to where the courts this um California Supreme Court determined that juries were making decisions based on what they felt was right versus what was actually the law and it was interfering with people's right to make decisions about who should receive their property after they pass away which is absolute I mean you can leave your entire estate to the

[6:36] home for Wayward cats and your family has nothing to say about that um well they frequently would have something to say about it but legally you're entitled to leave your assets entirely to who you wish them to go wow and juries were you know making judgment calls that were contrary to the law so uh that happened often enough so the Supreme Court and the legis ISL decided well we'll just have these decided by a judge a probate judge and Probate Court which is um different from a regular civil court where people um

[7:12] fight about other things right right I I that's interesting I I never had heard that before so meaning can someone um Can party's petition for a jury Hearing in Probate or is that not allowed either um no there is no right to a jury trial unless you are the subject of a conservatorship so someone has decided that they would file a petition with the Probate Court um which is the first that that's how you get into probate court because you file a petition asking the judge to uh make a

[7:48] particular determination and in conservatorships what you're asking the court to do is to make a determination that the person that you are identifying as the proposed conserva uh really needs help to you know they need that level of of uh protection to stay safe and to make sure their money is safe and so a cons a proposed conserva has the right to a jury trial because uh if they're if you're conserved you've got some rights that

[8:23] are being taken away right so um I've been appointed by the court to represent people who are proposed conservatees and I've only had two of them um over the years that that wanted to go all the way to a trial instead of resolving the issue with their families it's usually families that are worried right um and in both cases I was able to convince them that having a jury would not be in their best interest primarily because I knew that my my clients my courta appointed clients they really needed to be conserved but myob job as a court

[9:00] appointed attorney for them was to um Advocate what they wanted right and so I knew that if we went all the way through a a jury trial they were going to have a jury look at them and tell them that they could no longer manage their own health care money um living circumstances and that would be you devastating to someone right so I I convinced them to go with a judge and our probate judges are very very kind and understanding and know how to talk

[9:35] to people who are before them to try and help them understand why a decision is being made in a particular way and you see that that applies in conservative ships does it apply in a guardianship as well no those are different a conservatorship is a proceeding to um appoint somebody to manage the um the health care um living circumstances and um protect the money of someone who's an adult and that can be somebody who is elderly and starting

[10:12] to suffer from dementia it can also be somebody who has sustained some kind of a traumatic brain injury and they're no longer competent but those are conservatorships in California are for adults guardianships are for minors minor there can be a conservatorship or a guardianship rather uh of the person which is just if there are no parents around um and Grandma needs to step in and have all the authority to make sure the kid goes to school and gets to the doctor and um is safe that's a

[10:48] guardianship of the person but if the child has money so for example um if if the parents were killed and there's a in an accident and there's a judgment um awarding the child monetary damages because they've lost their parents right well then somebody needs to be appointed as the guardian of the estate for that child until they're 18 years old guardianships terminate automatically at 18 okay and and is it that essentially

[11:23] because the the the subject of the guardianship is a minor they don't have really lot of legal or if any legal rights and so they the rights aren't being taken away so there's no need for for a jury the way there is in a conservatorship is is that kind of the Crux of it or yeah that's exactly right um children are treated quite differently um another way that they're treated differently is is with um if you have a so if you've got an elder who you suspect is at risk and is being abused you can call adult protected services

[12:00] and protective services will go and investigate but if the Elder comes to the door and says oh no no it's okay my grandson is perfectly fine and I don't have any trouble here and we don't need any assistance um The Adult Protective Services investigator has to turn around and leave because in California unless you have a conservatorship or some other determination by a judge that you can't manage your own um finances and circumstances is you're presumed to have full capacity to make whatever decisions you want to and to be held responsible

[12:35] for those so but when uh Child Protective Services is called because someone believes that a child is being abused they March in and they scoop the child up often if the if circumstances warranted um because children don't have that that right they're not presume to have capacity to make decisions because they're not yet 18 right okay yeah that that makes sense so um particularly on the conservative ship side that would seem an area that is potentially Rife for disputes so kind of

[13:12] taking us I know I I took us down a little bit of a rabit rabbit Trail here but but it how did you then get into the the dispute resolution side of of your practice which which is you really the if you will you know the topic that that I you know we we came here to talk about today because I think it it it happens more often I think than than you know the average person thinks and and once you're in a dispute in a legal matter things can spiral out of control pretty pretty

[13:49] easily in my experience so um how so my my first introduction to mediation and mediation is just a process that people can use to resolve disputes it's just a name for a process and I'll get more into that um let me start out at the at the the bare BNS though okay sure my first introduction to mediation was uh when I took an elective course in law school and that led to me interning with the city attorney's office where I assisted with resolving neighborhood disputes you know so lot line problems or you know my

[14:26] neighbors being too noisy and that whole program is set up to help people avoid going to court with their neighborhood dispute so I got to do that as a as an internship which was super helpful um so I was already familiar with the process when I first started using mediation to help resolve my own clients cases so after attending a number of mediations as an attorney representing my own clients I decided to expand my knowledge by taking a specialized training course in mediation offered by um National

[15:04] conflict resolution center which is here in San Diego that training increased my ability to help my own clients settle their cases because I had you know lot more of the the background and the skill set the Probate Court requires requires everybody all the litigants to participate in either a mediation or for cases that don't have the resources to pay for a mediator what's called a mandatory settlement conference prior to the assignment of a trial date the mandatory settlement conference

[15:40] program is offered through the court and it's staffed entirely by volunteer attorneys with experience in trust and estate matters um who are familiar with the dispute resolution methods uh the family court uh has something similar so um these are helpful because often times the disputes involve family members and so it's a little more touchy feeling MH um some of my own cases benefited from the services of those volunteer attorneys and you know primarily the this works the best for uh as you

[16:15] mentioned before conservatorships where there's everybody agrees Grandma needs to have somebody in charge but there's huge disagreement about who that should be or there's finger pointing about you know the grandson living in the house isn't he just a parasite well or the other altern the other position is no he's really being helpful so he shouldn't be paying rent so those are the kinds of fights that that arise um there are worse fights involving Financial elder abuse and and things like that so conservatorships can really ramp up into some pretty serious claims

[16:51] and defenses but for the most part they um you know you run out the mill conservatorship where there's only a little conflict are really really good um for mandatory settlement conferences so in 2009 I began volunteering with the Probate Court as one of those um they're called settlement conference um dis dispute um settlement conference officers they changed the name of of what they call us right a couple times so I started uh volunteering uh as a

[17:28] settlement conference officer essentially uh really returning the favor to so to speak because I'd use settlement conferences to you know resolve some of my own cases and whenever I've got a um a case where one of the attorneys or both sometimes I know these people for years and I know that they have the background and experience to serve and I always ask them and and kind of Button Hole them at the end of the settlement conference and say so when are you going to sign up to be on the panel so we have more people um that work also offered me the

[18:04] opportunity to combine my years of experience as a trust and estate litigator with my mediation skills um assisting other attorneys and their clients in resolving disputes and I really like that work it seems like it's it's more um productive than simply just having a fight so I I began working formally as a paid mediator through uh the West Coast resolution Group which is also in San Diego in 2020 and focused on trust and Estates dispute resolution I don't do anything else in addition to continuing

[18:39] my trust in State's practice uh West Coast Resolution Group is an affiliate of the national conflict resolution center and they've got a talented team of professionals who manage the scheduling and logistics for my mediations and any others that are done through their organization West Coast resol ution group also has an entire floor of conference rooms for use during in-person or hybrid mediations and I'll explain more about what those are in a minute so I'm just if I can just interject a question here and and when I

[19:14] talk to just people in general as I'm sure you're aware lawyers don't have the greatest image with the public and I and I in my experience um and this is not me you know currying favor I assure you but in in my experience I think a lot of that comes from the way lawyers are portrayed on television they very sort of you know um mercenary and and all those things and and so I can imagine for some of the people watching this idea of of lawyers volunteering and and when you say volunteer I assume you meet unpaid you

[19:49] know to help resolve you know disputes um so that people can go on about their lives in a more congenial fashion and not blow all their you know money on on lawyers fees I can imagine some people are I don't know skeptical about that or or you know why would why would a lawyer do this so I'm wondering if if if you know why do lawyers do this um and I'll just add real quickly one of the reasons that I always enjoyed working in in the trust and Estates Arena and it dates

[20:25] back to when I had my real estate company is I generally found that um lawyers who practice in this area are among the best um most um empathetic uh legal practitioners that I've ever dealt with um they have a a high fidelity to um um taking care of their clients um oftentimes in a way that probably wouldn't you know wouldn't be to their own best interest if if if if you know what I'm saying but but they do put their clients above all else so I'm just

[21:01] I'm curious about your thoughts on that well I I'll tell you one of the things that attracted me to um the probate bar meaning um the attorneys who practice in Probate Court is that we do get along um you you collegiality among professionals really does happen there m um we for the most part we get along there are a few a few attorneys that I don't really um trust completely but for the most part

[21:38] it's your word is your bond and if another attorney that I know uh in Probate Court tells me they're going to do something they're going to do something um the other thing is that we're we're very collaborative we have a an entire um committee it's rather a large committee at this point it's uh called the bench bar committee and we meet every other month with the judges and the court staff and the attorneys who work in the probate Arena and the purpose of meeting together like that is

[22:13] to identify things that need changing to make the whole process of uh Probate Court more accessible to uh the the actual consumer the user our clients and um to make procedures easier for attorneys to follow so that we're more efficient and so that's really kind of a remarkable thing I've talked to some of the judges who sit on benches in just in civil court and they've expressed uh admiration that the probate court has this uh you know Cooperative

[22:51] um I don't I don't know um I'm grasping for words right now but uh the fact that everybody gets along we they the probate judges have this resource and so the court cases just typically will move forward more efficiently and that is one of the reasons why the probate judg or probate attorneys are willing to sit on this panel for um mandatory settlement conference resolution because we take care of one another we help one another settle cases we get we get things done the Court's got um its own

[23:29] generally the courts have a vested interest in getting things settled before having a court trial because they're they're backed up the probate court is terribly backed up at this point because um the demographic in our state is aging out and um so there are just more conservative ships and there are more fights over deance Estates as people pass away so um if a case get settled in alternative dispute resolution meaning either a mediation or a mandatory settlement conference then

[24:05] it's one less case for the judge to have to track makes so but why do people come and do this well what what are the benefits well to begin with it's important to understand that only people who enjoy litigation the only people who enjoy litigation are the attorneys and their staff I mean really in fact nobody wants to be sitting in an attorney's office unless they work there right or they have friends who work there or they provide services to the firm even getting an estate plan done can be uncomfortable because you have to face

[24:40] the fact of your own mortality and of course attorneys are expensive so people who find themselves in the middle of a dispute where they need the help of an attorney are facing one of the most stressful experiences in their lives and I firmly believe that an attorney's role must be to help their client understand the law that applies to their situation and the procedures required to deal with their problem and to protect their rights however that role must also include the ability to help clients resolve disputes

[25:15] efficiently and by efficiently I mean with the least possible financial and emotional cost to the client I have little respect for attorneys who actively escalate conflict because that's better for their own bottom line they do exist and they give the rest of us a bad name um it's really interesting um when we see civil civil attorneys who see that there's all of this work that's starting to be available in Probate come over and they want to play La law in the probate court and the judges just kind of look at them like what's wrong with you because we have this collegiality

[25:51] and there are rules that govern how Probate Court works and it's different than civil um litigation itself is complex it's timec consuming and it's astonishingly expensive there's very strict rules that govern how a court case proceeds from the first petition or response which are the documents that people will file to get the court case going a petitioner is asking for specific relief or an order from the court and a respondent is typically saying well no that's not right and I object so those get filed with the court and then there's a lot of

[26:26] work that gets done all the way through to a trial before the Probate Judge it's not uncommon for a trust in State's case to take up to two years to complete and the price tag for all of that work can easily exceed $100,000 or more so there's a monetary U benefit to resolving cases early there's an emotional benefit to resolving cases early um litigation also carries considerable risk you know you think you're going to March into court and I've got I'm I'm on the side of the

[27:01] angels and I've got all of the witnesses and all of the evidence and so I should carry the day so you so you've got to work your way through that or your attorney has to work to identify that evidence identify the witnesses get everybody teed up and ready to present in court this creates variables that are often beyond the control of the client and their attorney for for example nobody can guarantee how well a person will perform when they're sitting in the witness box winess well unless

[27:37] they've done it before over and over and over some people are just you know routinely in court and so they develop skills but most Witnesses are are lay people who just know things about a case Witnesses Who present as confident and credible when they're initially interviewed by the attorney often experience significant stress as the trial approaches they know that their testimony is going to be important to help the person that they're testifying for win the day they can become so flustered that they don't sound nearly as credible on the witness stand as they

[28:13] did sitting in the lawyer's office I had one personal I'll tell you a war story I had one case I was representing a young man who who had been um gifted some money from an elderly person who took a liking to him and that elderly person's family uh objected to that they thought they should be getting the elderly person's entire estate and this young fellow should not we prepped the case we couldn't get it resolved in mediation so we had to take it to trial I had one witness who was really kind of a third

[28:48] party got no dog in the fight um just knew things and personally familiar with the elderly person um and the circumstances and she did great um she her deposition was taken um and and that's testimony before uh in a conference room with a court reporter and the person's placed under oath and so the lawyers get to ask that person questions in advance of going to to trial she did wonderfully in her deposition Rock Solid MH we got into

[29:23] court we're in the big formal courtroom the judge is up on his bench she went and got in the witness stand and um melted down she was a deer in the headlights and that judge came back at the end of the case and ruled against my client and oh um explained that he he was oftentimes the judges will um explain their rulings and he said that he one of the things that factored into his decision was he didn't really believe this witness so wow the wild card that that's another

[29:58] wild card not knowing how the judge is perceiving the witnesses and how he or she is going are gauging The credibility of the testimony they're really good judges all have an excellent Poker Face you can't usually tell what they're thinking as they're hearing the evidence because they have a legal obligation to be completely neutral until they hear all of the evidence so so you can't tell the case that seems Rock Solid can crumble away during the trial simply because the witnesses for the other side are perceived by the judge to be more credible trials result in rulings where

[30:34] one side prevails and the other side loses um and the judge must follow the law exactly and can't be creative with their rulings so how can we mitigate this risk well obviously by reaching a settlement through mediation with the opposing party as early in the case is possible that's how the parties in a mediation do have the ability to craft creative Ms that avoid the win lose scenario uh as I mentioned before the courts are heavily invested in ensuring that uh parties in litigation participate in settlement efforts so you

[31:09] know that's that's encouraged so what's the mediation process well mediation can occur even before case is ever filed in court and in fact some parties who are able to handle settlement negotiations directly because they're still actually speaking with one another can often use the help of an experienced attorney or a mediator who can serve just as a coach to help them frame their positions uh even cases that do wind up in court can benefit from early mediation once both sides are clear

[31:45] about their own position and that of the other side so um and how do they do this well the parties will want to conduct limited Discovery before going to mediation to make sure they understand the other side's position and what is Discovery Discovery is simply a process where the parties exchange written questions and answers and sometimes also includes taking depositions that I mentioned before um and the questions and answers taken down during a deposition uh they're taken down verbatim by a court reporter

[32:20] and turned into a printed transcript that people can use so once that limited amount of Discovery is done everybody knows what the other side's position is pretty sure they know what all of the um testimony and evidence is going to be then they can go to mediation with their eyes wide open um so when the attorneys are confident they understand the other side of the case they will confer and they will choose a mediator who has a good reputation and knowledge about the area of law that relates to the case the mediator staff then take over and

[32:56] coordinate dates to schedule the mediation now how does this take place well with the overwhelming adoption of Microsoft teams and zoom and other um online options mediations can be done remotely and this is convenient when the parties live in different cities or states um the courts now offer some kind of remote video appearance option for hearings too so attorneys are quite comfortable with this uh many people feel that in-person mediations are more productive um where the parties all show

[33:31] up at one one location and they they get placed in different conference rooms but they're there in person and I agree that's true for some cases but not all of them um some people who are elderly or are otherwise uh immune compromised may want to avoid the risk of catching covid or some other respiratory disease some people are also better able to participate in a dayong mediation if they're in their own home with a comfortable chair their kitchen and a restroom nearby MH also as I mentioned Earl we had we had one case where um the

[34:07] woman wanted to stay home um because she needed her dog and and her dog wasn't a certified support animal but it that dog was so important to this woman that that you know everyone agreed okay great we'll we'll zoom in to you and you and your dog can participate MH so as I mentioned earlier mediations um can also be hybrid with a combination of inperson and remote participants so you can have a bunch of people at the uh in the conference rooms and then um similar to this have some folks streaming in and

[34:44] participating that way so it's really quite flexible uh once the mediation has been scheduled the parties exchange mediation briefs which is um you know a written document it could be a letter it can be you know more formal where they provide a description of the case and identify the law and the evidence they think is compelling and supports their side of the dispute the mediation briefs are also sent to the mediator in advance of the mediation so when I mediate a case I get the mediation briefs and I read them and then I schedule short individual

[35:20] meetings with each attorney and if there are people who are not represented then I'll have that meeting with the individual who's not repres presented it's called proper after I've looked at the briefs I use these Advanced meetings to gain some insight into the parties uh their personalities confirm that the attorneys have explained the mediation process to their clients and learn about any prior settlement negotiations that might have happened um I also confirm that the attorneys

[35:55] have discussed the risks of litigation and benefits of settlement with their clients because I want them coming to the table kind of um pre- educated in why they're there the day of mediation I start out by meeting briefly and privately with each party and their respective attorneys so Zoom uh has the ability to create what are called Zoom rooms um where people can so I I set up several Zoom rooms one party and their attorneys are in one Zoom room another party and their attorneys in another Zoom room so I will

[36:30] bounce back and forth between those rooms or in a in a or maybe physical conference rooms if it's a inperson mediation but in any event I start out by meeting privately with each party and I go over the rules around confidentiality and how the mediation will progress just to make sure everybody's on the same page um incidentally everything about a mediation is confidential from the briefs to everything said by anyone during the mediation um in fact it's important to include a provision in any written settlement agreement that

[37:05] confirms that the agreement is not confidential the reason for that is because people who feel safe are more willing to be open about their feelings and their perspectives so if they know that um you know for example there's case law that says mediators cannot be pulled in as Witnesses and and be forced toest testify just it can't happen right so next I spend time with each side starting with the party who brought the case to court in the first place and just listen to them my initial goal is

[37:40] to give each party the opportunity to tell me about their side of the case in their own words and hopefully I'll be able to identify any areas where they might be able to agree before moving on to the areas where they're in sharp disagreement so for example um when the dispute involves claims that one side has acted improperly or stolen money from an elder or even if it's just a conservatorship dispute over who's supposed to who's the best person to be appointed it's really common for the parties to agree that the central focus is making sure the Elder is safe and

[38:16] being cared for properly so establish areas of of agreement and develop rapport with the parties um another thing that I'm clear about is that I'm a neutral I'm not making any decisions I may have opinions that I could offer if asked because I have experience in this area of law but I'm not calling balls and Stripes that's for the judge to do if the if the case doesn't settle my only role is to help people understand their position identify potential settlement op options evaluate

[38:52] um uh offers from the other side and create counter offers and that's all I do all day long back and forth back and forth um it's called shuttle diplomacy so I reiterate the benefits of reaping a settlement during the mediation and the risks of taking the case to a trial an important factor that I emphasize is the financial and emotional cost to each party if they continue the dispute for another six to 12 months now having confirmed that their attorneys have already told them about this this is just reiteration

[39:28] that's that's helpful right uh peace of mind and the ability to return to one's own life without waking up and worrying about the case first thing every morning and last thing at night turns out that has significant value to most people so uh many times the attorneys want me to share my personal experience and insight into their clients dispute to kind of give them um uh a different framework um so if I'm asked to do so I will identify what I see as strengths and potential weaknesses in each party's

[40:05] position that would support um reaching a resolution I can share as I just did few minutes ago how my own cases have taken unexpected turns um and emphasize the uncertainty of how the judge will evaluate the evidence mediations generally require at least a full day to complete people don't go into mediations thinking well we'll do this for an hour and it'll all be good it takes a while um simply because the parties need time to tell their story consider offers make counter offers consider Creative

[40:41] Solutions uh my role is that of a shuttle Diplomat and help them do this parties also require time to consult with their counsel privately after receiving an offer or a counter offer and so I will step away and let them talk to their attorneys and and then I'll step back in and um assist them with whatever they need usually it's to craft a a counter offer to the other side's most recent offer um ultimately I'm happy to say that the vast majority of cases I've mediated both as a an attorney

[41:16] representing a client and as a mediator have resulted in settlement and a written agreement and by the way the other topic I discussed with the attorneys during the Premed ation meeting is my expectation that they will work together before the mediation even takes place to prepare a written settlement agreement containing all the legal Provisions that they think it needs and only has a big hole where the specific settlement terms can be inserted why why do I require this uh well I found that waiting until the end of mediation to start discussing how the

[41:53] settlement agreement should be drafted uh can derail settlements because the parties are often physically and emotionally exhausted uh if the thing continues on long enough and they want to be done with it they don't want to sit there for another hour waiting for their attorneys to argue over paperwork also I want a written settlement agreement signed before they leave and I require that because buyer remorse is a very real thing and we don't want to have a a mediation that results in a settlement blow up because somebody goes away and they talk to some family member who didn't participate who

[42:28] says well gee whiz you got screwed and you should have done this right that's it in a nutshell so what do you find you mentioned that the vast majority of your the cases you've been involved in both as a mediator and a lawyer you you've been successful in settling so what seems to be the key reason or reasons that mediation doesn't work sometimes people are just so mad they can't get past it or they just they're

[43:05] the kind of a person that just wants to fight with someone um they're a perennial bully and that is their modus operandi and so if you don't have two reasonable people who who who value the notion of getting on with their lives and reaching a settlement you can you can have a case that's impossible and then it just has to go to Court um the whole reason for the court system honestly is to keep people from acting like the wild west nobody you know you don't have to pick up a um a six shooter and and go after the person you're mad

[43:40] at if you can take him to court instead right and so that's what the courts exist for and the judges are perfectly happy to fulfill that role if they must interesting interesting so um you mentioned that litigation can easily cost you know $100,000 or more um in terms of you know the cost to get through it what what would be a range of costs by comparison that someone could expect um in mediation in your

[44:15] experience well um it depends which is the answer to every legal question right right um so mediation itself um if you're going to go a full day with an experienced mediator uh you can you can plan on the parties jointly spending five or $6,000 for that process okay um and whatever it takes to to get to that process whether they do it before litigation or they do it after they've done some um some Discovery whatever

[44:50] your the attorney is charging is another expense right U but I guarantee if you get in early enough and and you really are committed to reaching a settlement um that's in everyone's best interest it's not going to cost anything like what litigation requires and um it's said that a successful mediation is where both parties walk away um a little disgruntled they didn't get everything they think they're entitled to but they got what they can live with and in

[45:26] particular they got their peace of mind and their lives back so that's a successful outcome usually so that's that's you know Halloween just passed that's I had in the back of my mind I have an attorney friend who tells me when he negotiates a solution between two parties if both parties walk away a little bit miffed he's he can be reasonably confident the agreement is going to stick but if one walks away thinking he's triumphed and the other one thinking that you know he got totally taken advantage of that agreement is is almost for sure going to fall apart so it's it's interesting that

[46:03] that you you express you know that same philosophy because it makes sense both sides have to be willing to give at least a little bit beyond their comfort zone probably to reach uh you know a successful conclusion right and yeah every case is different you know what are what are the factors that um a party can be convinced to give up um it varies yeah yeah so and that's again that's why I require a written agreement signed by everybody before they check out uh because you know as I said before

[46:38] you know somebody who feels like um they got a reasonable settlement can go talk to some well-meaning or maybe not well-meaning family member or some friend who thinks they know everything um and buyers remorse can set in well if there's a signed agreement that's leg binding MH and that settlement is not going to derail um and if it does these settlement agreements usually contain a provision that allows a judge to settle any kind of um dispute about the agreement itself which which is a much

[47:15] faster uh proceeding usually the parties going and they argue well why they either have or or insist on settlement being forc and the judge will think about it and then issue a ruling and boom we're done right and does the does the agreement that is drawn up out of out of the mediation is that typically enter entered into the court record is you know as some sort of uh you know on a petition or something like that or is it kept private between the parties um and as long as the agreement is lived up to then the the

[47:51] court matter is is I don't know dismissed or how how does how does that sort of wrapup work assuming that there was you know that the mediation came out of something that was filed in court as opposed to being conducted before you know parties got to court well the the parties can um agree on whether the settlement agreement needs to be filed with the court um in cases where there are some key players who are um doing the work of reaching a settlement and they brought the case to court in the first place but there are some sort of ancillary people hanging

[48:27] out there folks who might have uh a contingent interest in a state or something but they have not bothered to participate sometimes it's um the better plan to file yet another petition with the court only this time seeking the Court's approval and confirmation of the settlement agreement and then and then all these ancillary people get a copy of that petition and they have an opportunity to be heard before the court and then if that uh settlement goes uh becomes a court order then it's binding

[49:02] on everybody and that's sometimes helpful uh not all cases require that but it's certainly an option sometimes um the parties don't want to file the settlement agreement with the court but there's a provision that says that the person who filed the petition in the first place will now go and ask the court within you know 15 20 days to dismiss their petition and take the whole thing off off the calendar and and will will they be required to desmith dismiss with prejudice necessarily because if like if

[49:38] I'm the party who's been you know sued basically and now we've reached a settlement and and for maybe we're not going to enter that settlement have it entered into court but on the other hand I don't want to be in a position where the suit is withdrawn without prejudice and now I can get sued again and have be forced to go through the whole process right so how is that dealt with well two ways um some cases you cannot dismiss with with prejudice conservatorships can't be dismissed with prejudice oh okay because you you always have to have

[50:13] the ability for somebody to file another petition to protect an elder so that that's never going to happen other cases uh where it's just a fight over money and and there's claims from one side of bad behavior by the other you you can uh include a provision in the settlement that says yeah they they will dismiss with prejudice and that's a technical term that says if I'm dismissing my case with prejudice I can never bring it again now that doesn't mean that if the other party does some new skull Dugger thing down the road that I can't drag

[50:50] them back to court for that new Behavior but everything um up to the date of the settlement is water under the bridge so to speak yeah and settlement agreements also usually include um kind of mutual waivers saying I agree that um well we both agree that nobody is admitting anything and we're agreeing that we're just going to dismiss this thing and we're waving any liability that we might have towards one another um regardless of what we find out May find out later with respect to all of the things that

[51:26] happen up to the date that we sign the settlement and that's that's kind of a a plain description of a legal um concept right right so you can build things in and that's why I have the lawyers draft these things and collaboratively because I want everybody to have all of the provisions in place that they think they need to protect their client's rights assuming settlement's going to be reached and and as a mediator what is what is your posture with respect to for example the the the um parties granting Mutual

[52:04] waivers or um a dismissal of a you know of a an action that was filed prior to the mediation how how act actively can you get involved in seeing to it that those issues are dealt with if if for some reason the attorneys don't seem don't seem to be dealing with it you know themselves uh that is not my role I do not have any role in drafting settlement agreements because I'm not engaged in um in the capacity of being an attorney I don't have my attorney hat on so I'm not going to draft those agreements I'm not

[52:40] going to weigh in on those agreements I oftentimes I won't even see them I'll just get confirmation from the attorneys that they have reached um um collaborative decision of what needs to go into the agreement and it's it's on them okay if one of if an attorney um that's called malpractice if they don't do it right what would think right and I'm not gonna get involved in that um I I I will tell you that the uh trust and estate's attorneys that I I commonly deal with either either as uh

[53:17] adversaries in Probate Court or colleagues at um you know I don't know um Bar Association events uh or as representatives for their own clients in a mediation they're so good at what they do for the most part that I just don't it's something I don't even worry about okay that make and that makes sense uh yeah no so but it's it's it's interesting because I I I and and you you strike me as someone who

[53:54] really deeply wants to help people and I and I could imagine that if you saw a lawyer not addressing an issue that the lawyer ought to be addressing it'd be very difficult to sit on your hands right and and and let they go by but as the mediator that's what your responsibility is and so so that's what you do um right I mean uh that's their job and this is my job in in this circumstance um you know now if I'm representing a client and I'm working with another attorney to craft one of these agreements and I I get a draft

[54:30] from them that doesn't contain something that I think is would be important for both of our clients um we'll go back and forth about that well gee we need to include this because at that point I'm trying to create a document with opposing Council that's going to support any settlement that's reached so this thing doesn't blow up later on because it it's an awful lot of work to get a a case ready and then through a mediation um and you just want to be able to to shake your client's hand and say you did good you've reached an agreement that I think is going to be

[55:06] beneficial for you and your family and we're done now you can stop sending money to me which makes them happy usually absolutely so one last question we we we've gone a little bit longer than we normally go but and and I could go another hour I think but one final question um what are your let's say top three uh frustrations as as a mediator or you know a a lawyer Who's involved in a [Music]

[55:41] mediation well when opposing Council or one of the attorneys um clearly doesn't understand what they're doing or they're one of those rare people who are belligerent just because that's the way they are in the world or uh it helps their bottom line to keep the drama going when I have one of those kind of attorneys either on the other side of one of my cases or as uh a participant for their own client in a mediation that's a frustration um having a a client who uh

[56:17] or participant not engaged they sit there like a lump they haven't been properly um prepped by their attorney or they they're they're participating in a settlement conference or a mediation because they need to check a box because really what they want to do is to continue to fight that's a frustration um I had one case where the where the client said okay well I'm done here and uh I'm going to go off to the bathroom and they never came back and the poor attorney is sitting in a conference room and I said where's your client I don't

[56:53] know my that was hard for everybody right people need to be prepped and ready to with a with an open mind and understanding the process and walk into a mediation with the expectation that if if everybody works hard we're going to get this thing settled when that doesn't happen that's frustrating for me yeah well Maryann this this was really fantastic I mean your your explanation so clear so cogent I really appreciate

[57:28] you taking the time to to join me today be my guest in in in talking about this issue like I said I think there's a lot more here and and and perhaps um if if you're available we'll have you come on again and and get in maybe to some of the more complexity you know the complexities of of mediation and um maybe if if you're able to share share a couple of uh War Stories because I I find those are very useful to help generate ideas on how another case could you know potentially be dealt with so oh sure sure um we could we could do a

[58:04] whole session on Creative Solutions absolutely so oh I'm sorry go ahead yes so um so I've provided you with my contact information um one thing I'd like to specifically point out to your viewers is we have on my firm's website we have a mediation worksheet that will help people who just want to try and resolve their own um conflicts work through the kind of questions they need to answer in advance of getting together uh for that and that's located um at um

[58:41] www Bellator lawgroup.com forwork sheet and it's it's a free download great so um when the show posts on on YouTube I'm going to I'm going to put all of these links in the show notes so for for any of you who are watching um if if you want to get in touch with Maryanne um all of her contact information will be there her firm's website will be there um I think you also gave me the the URL for the um mediation organization with which you're Affiliated and and we'll put I'll put in

[59:17] a a specific link also to that worksheet because I think people will find that very very useful um and and uh that way people can just click right through to it um you know from viewing this so perfect excellent well Maryann again thank you so much if if you don't mind just sitting tight for a moment while I wrap up the show and I'll take us offline and we we can see goodbye so so folks I really appreciate you joining us today I I'm not even gonna ask if you got a lot out of it I know you had to have um because because of MaryAnn's presentation so if you're dealing with

[59:53] any these any of these issues whether whether as a professional whether as a party to uh you know a trust or estate matter um I I I can't encourage you more to listen relist to what Maryann talked about today contact her um if if it's a um if it's a situation uh you know in in I you practice primarily in the San Diego area or throughout California um we practice throughout California with the Advent of zoom and uh Microsoft teams and I think it's uh

[60:28] Northern California uses blue jeans as as so we can go anywhere without having to get on a plane okay great so so if you're if you've got you know a matter in California Shameless I can do a Shameless plug because I know Maryanne won't but but but you know give give Maryann a call I think you can see that that her level of of client service is is extraordinarily High um now before we go quickly tomorrow 10:00 a.m. is my show business lessons from the military and I'm going to be talking about the

[61:03] qualities that are essential to win I'll be talking about Lord Horatio Admiral Lord Admiral Horatio Lord Nelson's victory at Trafalgar and and going to be distilling from that the the the qualities that he had as a leader that was able to lead to this Victory and we'll translate that into how we can apply that to our businesses and practices and then on Wednesday at 10: am. Pacific time is my show people making money and I'm going to be talking about one of my favorite subjects and that is practice doesn't make perfect I

[61:38] know you were told that your whole entire life but if you've ever read the book practice perfect by Doug Lov you you will realize that that that that's not exactly how it works so we'll be talking about how to practice in a way that will actually get you to ever higher levels of of of success and achievement and then finally uh this is my every other week show on Thursday at 5: PM jiggers is place and we'll be sitting back and having a a cocktail and talking about oh gosh I can't remember

[62:15] what the topic is let's see uh oh yes yes um we're going to be talking about how to get on the road to happiness so as you know on jiggers is place we talk about all the nonprofessional business matters talk about the big questions of of of life and and and all the important things relationships and such so so join me 5: PM Pacific time at jigger's place for a cocktail and a chat so one last time Maryann thank you so much for joining me um all of you for all of you out there wishing you a wonderful rest of the day and signing off as I always

[62:51] do Marie darling