Death and Taxes Blog

Before I head off for the holidays, I wanted to share two quick items:

1. Evidently, Britney Spears is suing US Weekly for $20 million over their allegation that Ms. Spears and her husband, Kevin Federline, "feared the release of a secret sex tape, which they had viewed with their estate planning lawyers."  ABC News has the story here.  I think Ms. Spears has a good case -- in my experience, estate planning lawyers are rarely called in to view secret sex tapes.

2. Last night's episode of "Arrested Development" featured an appearance by Scott Baio as attorney Bob Loblaw.  In the episode, we learned that Mr. Loblaw also has his own website, known as (what else?) The Bob Loblaw Law Blog.

Deirdre R. Wheatley-Liss, the author of the You and Yours Blawg, has a great new post entitled "Beware the Snare - State Estate Tax on the Rise."  This is a stealth issue, one that's sure to cause problems but is not getting much publicity from the mainstream media.

I'll be out of the office for Christmas through January 3rd.  Happy Holidays to all of my readers!

Law.com's newswire has an interesting article about a recent California case.  Here are the facts:

Soon after crane operator Raymond Corder died in a construction accident in May 2001, Shaoping "Sherry" Corder -- his wife of eight months -- and Lisa Corder -- his adult daughter from a first marriage -- filed wrongful death actions that were consolidated.

The two got a $1.1 million settlement, but couldn't agree how to apportion it. At a subsequent trial, Lisa Corder presented evidence that she and her father were very close and that he had been preparing to divorce his new wife because she allegedly was working as a prostitute against his wishes.

Giving the seemingly imminent divorce great weight, Orange County Superior Court Judge Randell Wilkinson allocated 90 percent of the settlement money to Corder's daughter and 10 percent to his second wife.

Surprisingly enough, Santa Ana's 4th District Court upheld the ruling.  If this case had occurred in Illinois, I have to assume that our courts would have ignored woulda/coulda/shoulda scenarios about possible divorce, and would have awarded Mr. Corder's wife half of his probate property (with the other half passing to his descendants). 

There are a lot of good resources on substantive probate law available to Illinois attorneys, but finding information about how actual court procedures work is much trickier. As a result, I’d like to spend today talking about the procedure an attorney would use to get a citation to discover information issued in Cook County. (In the near future, I'll provide more information about what such a citation can do.)

1. No notice needs to be given to anyone in order to set up a hearing on a citation petition. Just schedule the hearing date with the clerk for the judge who's handling the estate (you can also file a copy of the petition at this time).

2. You'll want to bring the following to the hearing:

• Two copies of the petition (one for you and one for the judge)
• Two copies of a blank order (more on this below)
• Cash or a check, to pay the Sheriff (more on this below)
• Five copies of the citation itself (there's a form for this in Cook County, available here as a .pdf document -- note that a copy of the petition needs to be attached to the citation)

3. At the hearing, the judge will (as long as the petition is correctly drafted) agree to issue the citation. 

4. Talk with the judge's clerk about a "return date" (that's the date the respondent in the citation will actually appear in court to answer your questions).  Note the return date on the citation itself and on the order the judge will then sign.  (The order should indicate specifically that a citation shall issue against respondent, and should specify the particulars -- return date, place, and time.)

5. Take the judge's order and the five copies of the citation to the main probate clerk's office on the 12th floor.  Go to line 7a, and the clerk will (a) stamp one of your citations as the original, (b) keep one citation copy for himself, and (c) give you back the remaining three citation copies.

6a. If you are having the citation served by the Sheriff, take the original citation and two copies to the Civil Process Division of the Sheriff's office, on the 7th floor.  When you walk in the door, one clerk will write the cost of issuing the citation at the top of the original citation; you then go to a cashier and pay that amount.

[added 1/31/06:

6b. You can also have the citation served by a "special process server," such as a private investigator. 

7. Note that, under §16-1(b) of the Illinois Probate Act, "[t]he citation must be served not less than 10 days before the return day designated in the citation and must be served and returned in the manner provided for summons in civil cases."  You'll want to check in with the Sheriff or special process server regularly to make sure that service of the citation has been completed.

8. If the citation isn't served by the date provided above (10 days before the return date), you'll need to go back to court on the return date and ask the court to issue a new citation, known as a First Alias Citation.  If you used a Sheriff on the first attempt at service, you may want to get a special process server this time.  You don't need to ask the court's permission to do this, but it's not a bad idea -- I prepare a Motion For Issuance of First Alias Citation and Appointment of Special Process Server, thereby killing two birds with one stone.]

Yesterday I presented a report card for lenders involved in two recent closings that I handled.  You may agree (or disagree) with the letter grades I gave, but the better question is: how can I use this information?

My main intention in grading lenders is to let people know that there's more to a lender than the interest rate it offers.  I think there's a tendency to believe that loans (and lenders) are fungible, and that a 5.5% loan is always better than a 5.6% loan.  That isn't necessarily so.

But part of my problem is that I am very affected by a lender's competence or lack thereof.  It can mean the difference between 1 or 2 hours spent at a closing and 5 or 6 hours spent at a closing.  Does that mean you should choose your lender to make your attorney happy?  Of course not.  Even the worst closing day may be worth it if your savings (in terms of monthly payments) are substantial. 

I think lender service (or lack thereof) is important for two reasons:

1. So that you can accurately assess the worst case scenario, and decide if you can live with it.  The 5 hour closing I recently attended was made somewhat easier because the sellers had already moved in to their new home.  But what if this hadn't been the case?  What if you were trying to sell your house in the morning and buy another house in the afternoon?  What if the funds for your purchase aren't ready in the afternoon?  Do you have to cancel movers? Do you have a place to store your stuff?  What about your family?  Bad lenders can create logistical nightmares.

2. So that you can ask tough questions of your lender before you hire them.  Questions like:

-will I work with one dedicated individual to get my loan approved?

-will one of your representatives be at the closing?

-if not, will a dedicated person be available by phone at the closing?  what is that person's name?

-when you send you loan documents to the closing, do you also send a check for the loan proceeds? if not (i.e. if you send the proceeds by wire), when is the wire sent? 

A few months ago, I wrote this open letter to lenders and mortgage brokers, explaining what I (as a buyer's attorney) need from them. 

Evidently some people didn't get the letter, as I spent much of the day on Monday (8:30 a.m. to approximately 1:30 p.m.) at what should have been a fairly simple real estate closing.  The delay was the direct result of my client's lender, Lending Tree.  For whatever reason, neither the loan proceeds nor the loan documents were at the title company when the closing began.  In fact, the loan documents didn't arrive until about 11:00 a.m, even though the closing had been confirmed well in advance, and even though the buyer and I had both asked the lender (repeatedly) if they needed anything else to close the deal (they said no).  Lending Tree offered some excuses for this delay -- computer problems, the fact that they are located on the West Coast -- but excuses don't cut it.  The buyer, the sellers, the attorneys, and the title company personnel were all inconvenienced by the lender's failure to fulfill their obligations.  Grade for this transaction: F

Another closing (held yesterday) had a far better result, because of some good work by my client's lender, Rose Mortgage.   Weeks prior to closing, they assigned a closing specialist to my client, and she did a great job of making herself available to answer questions.  There were a couple of last-minute glitches, but the closing was completed in less than 2 hours.  Grade for this transaction: B+

Slate's Daniel Gross has an interesting article about "why banks are so afraid to foreclose on you."  The article explores a number of reasons why this is so, but this quote in particular stood out to me:

"[T]he mortgage industry is working hard to avoid coming down too hard on overextended borrowers. It has... everything to do with a healthy corporate regard for self-interest, stock value, and public image."

The mention of "public image" is interesting in light of an experience I had recently. 

I am assisting in the administration of a decedent's estate -- she was survived by two adult sons (her only heirs).  After the decedent died, the lender (let's call it "The Bank That Works") decided to foreclose.  That was the lender's right under the mortgage documents, but it struck me and the two sons as unnecessary -- they were making the monthly payments on the loan (and had been since their mother's death), and were getting ready to pay it off entirely. 

I was then contacted by the bank's attorney, who told me that he was preparing to file a claim against the decedent's estate.  I indicated that this wouldn't be necessary, and asked him to hold off on doing so; after all, the bank had six months in which to file a claim, and the estate (and the bank) might be able to avoid court costs and attorney's fees if an out-of-court resolution could be reached.  The attorney agreed to wait on the filing of a claim.

The claim arrived in the mail about two weeks later.  (When I asked him about it, the attorney said he didn't recall our conversation, and stated that he had too many open files to be able to keep track of them all.)  The claim included $500 for attorney's fees.  When I told the attorney that my clients objected to paying these fees (since an out-of-court resolution could easily have been reached), the bank's attorney told me we could fight the fees in court, but that he would bill the estate for additional fees at a rate of over $200 per hour.  Frustrated, my clients then agreed to allow the claim, at which point the attorney tried to tack on an additional $200 in fees for speaking with me on the phone about this matter.

Needless to say, "The Bank That Works" shouldn't expect to get any business from me or from the decedent's sons in the future.   

It can be a royal pain for an estate representative to sell the decedent's house.  In many cases the house needs extensive cleaning and some repairs (often cosmetic) before it can be sold.  But where does the money for these services come from?  If the house is the major asset of the estate, then the representative will often wind up paying for services out of his or her pocket, and then getting reimbursement when the house is sold.  That's not always a good idea (and if your representative doesn't have a bunch of cash sitting around, it may not even be possible).

A Los Angeles-based realtor at Coldwell Banker, Lou Woolf, has a new service (called Estate P.A.C.T.) that could help in this area.  If you hire Mr. Woolf to sell your probate property, you gain access to a group of tradespeople who will (a) perform the necessary work on the house and (b) defer their fees until the house is sold.  (The fees are payable at the closing.)  Here is the press release.

Hopefully a Chicago-area realtor will institute a similar program -- I'm sure it would be a hit here.

One of the things probate attorneys hear quite a bit from executors and administrators is, "I think the decedent had a safety deposit box, but I can't find any information about it."  Luckily, for cases involving an Illinois decedent, you can contact the Illinois Safety Deposit Box Association, which will search their records to see if the decedent had a box in Illinois.  You can get the Association's info here.

What if the Mormon Will was authentic?  That certainly would turn Melvin Dummar into a victim.  But there would also be another victim in that case: Howard Hughes.  If the Mormon Will was authentic, then Mr. Hughes' wishes as a testator were not honored. 

Of course, you could say that this is in part due to Mr. Hughes' own mistakes.  The two biggies:

-(Self-Interest Alert!)  Not having his Will prepared by a skilled estate planning attorney: Such an attorney would have made sure that the Will was properly witnessed, and could have articulated Mr. Hughes' wishes and state of mind after his death.  (On a similar note, an attorney could have improved upon the language in the Mormon Will.  No estate planner worth his or her salt would have allowed a testator to leave hundreds of millions of dollars to "my personal aids [sic] at the time of my death" or to "the key men of the company's [sic] I own at the time of my death."  If the Mormon Will had been admitted to probate, I'm sure that extensive litigation would have been the result, as people argued over whether they qualified as personal aides or key men.)

-Not providing any type of documentation for the 1967 incident involving Mr. Dummar.  When you leave property to a strange beneficiary, it's a good idea to explain why you did so.  It's an even better idea to provide this explanation in writing.  If Mr. Hughes had given a letter to his attorney or banker immediately following the 1967 incident, stating that Mr. Dummar rescued him and would therefore be a beneficiary under his Will, all of this litigation could have been avoided.

Part 2 of 2

While the focus of The Investigation is on the '67 Incident, Mr. Magnesen also takes a number of (figurative and literal) detours. Your enjoyment of these passages will probably depend on whether you are in the mood for lyrical passages about the interests of the individuals involved in the controversy, the desert, and cases that Mr. Magnesen worked while he was a member of the FBI.  An example (from page 15):

Periodically, [Mr. Dummar] withdrew to the solitude of his music.  It was a soothing balm to his soul.  He often sat for hours writing songs.  He found that he had a talent for country western music.  He felt he could speak through his music.  His gentle tenor voice expressed his deepest feelings.

I'm not a huge fan of this type of writing; to me, it feels like filler.  I'm even less impressed with Mr. Magnesen's digressions about the fairness of the original trial. On pages 159-166, Mr. Magnesen mentions rumors of spies in Mr. Dummar's camp, and of jury tampering. (Supposedly a juror was "given a suite in the penthouse of the Desert Inn Hotel as a reward after the trial.")  After doing a little research (including the interview of one juror), and turning up no evidence to support these rumors, Mr. Magnesen doesn't conclude that there was no jury tampering. Rather, he concludes that "[t]he passage of time has washed away evidence of jury tampering," and then asks the following question: "If the juror was given a suite at the Desert Inn, who had authority to provide this complimentary gift? One person who had the authority was [corporate attorney] Chester Davis."  In other words, "my research turned up nothing, but allow me to slander this person."

Mr. Magnesen's mistake here -- one he repeats at various points throughout The Investigation -- is to use hypotheticals to bolster his position that the Mormon Will is authentic.  The use of hypotheticals is understandable in theory -- because we don't know what actually happened, and because it's fun to speculate -- but it's troublesome to see the author attempt to use "here's what might have happened" in place of real, honest-to-goodness facts.  In one such hypothetical (discussed on page 172, among other places), Mr. Magnesen writes that "[Mr. Hughes'] faithful aides who stuck to the party line and were good soldiers in protecting the interest of Hughes's key people were rewarded with lifetime 'consulting' jobs.  These consulting fees were nothing more than a means to keep them in line."  Keep in mind that Mr. Hughes' aides were named as 1/16th beneficiaries under the Mormon Will, which meant that they had a tremendous financial interest in having the Mormon Will declared authentic.  Yet Mr. Magnesen believes -- with no proof to support him -- that the aides conspired to rob Mr. Dummar of his rightful inheritance. 

Mr. Magnesen also speculates that Mr. Dummar's attorneys "weren't able to convince any other American handwriting experts to look at the [Mormon Will]," which was deemed to be a forgery by the president of the U.S. Handwriting Association.  According to Mr. Magnesen, there was a well-known threat of blacklisting made (by whom?) any handwriting expert who dared to testify that the Mormon Will was authentic.

I suppose it's possible that some of Mr. Magnesen's hypotheticals accurately reflect what really happened in the case, but Mr. Magnesen certainly hasn't provided much factual support for his positions.  In the end, that may be due to bad luck rather than any failure on the part of the author.  The facts of this case have proven most elusive -- Mr. Hughes didn't rely on a lot of written documentation, and most of the principals of the case have passed away, are missing, or refuse to talk.  That means Mr. Magnesen's book is less persuasive than it could be; it also means that, if Mr. Dummar has been wronged (and I agree that it's a possibility), the "smoking gun" to prove it has yet to be located.

Part 1 of my review

Gary Magnesen's book The Investigation is getting quite a bit of press these days -- last week there was even a small note about it in The New York Times.  As the book's lengthy subtitle (A Former FBI Agent Uncovers the Truth Behind Howard Hughes, Melvin Dummar, and the Most-Contested Will in American History) suggests, Mr. Magnesen is a retired FBI agent who decided to conduct his own investigation of the Howard Hughes - Mormon Will controversy.  After meeting with Mr. Dummar, he began to think that perhaps the Mormon Will wasn't forged, and set out to discover what really happened.

Most of Mr. Magnesen's investigation focuses on an alleged incident in late 1967 (which I'll call the "'67 Incident").  As I said yesterday, "Mr. Dummar claimed that... he had been made a beneficiary under the Mormon Will because he had rescued and given a ride to Mr. Hughes out in the Nevada desert in late December 1967."  Anyone hoping (as I was) for an extensive re-examination of the Mormon Will can expect to be disappointed with The Investigation.  Essentially, Mr. Magnesen believes that, if he can prove that the '67 Incident actually occurred, then the Mormon Will must be authentic.  I'm not sure the two events should be connected in this way.  If the '67 Incident didn't occur, then perhaps we can assume that the Mormon Will is a forgery, since Mr. Hughes would have had no other way of knowing Mr. Dummar.  But I don't know if the converse is true; that is, I think that you still have to prove that the Mormon Will is authentic even if you have already proved that the '67 Incident occurred.

Note that when I talk about "proof" here, I'm not talking about legal proof.  According to Mr. Magnesen, the court required Mr. Hughes' heirs to prove that the Mormon Will was a forgery by a preponderence of the evidence.  If we're talking about proof in the court of public opinion (i.e. the rehabilitation of Mr. Dummar's reputation), then I think the standard has to be higher, and the burden has to be firmly on Mr. Dummar's defenders.

Mr. Magnesen attempts to meet this burden by providing some evidence that Mr. Hughes could have been in the Nevada desert in late 1967.  His evidence comes in the form of three witnesses:

1. John Meier, Mr. Hughes's chief of mining operations, who says that he was with Mr. Hughes and others at the Mizpah Hotel in the desert in late 1967 or early 1968, and that Hughes "went out on his own and got lost."

2. Guido Roberto Deiro, a pilot who occasionally worked for Mr. Hughes.  Mr. Deiro says he flew Mr. Hughes to the Cottontail Ranch, a brothel in the Nevada desert, during the holiday season in 1967, and that Mr. Hughes then disappeared from the Ranch.

3. Howard Harrell, the widower of the Cottontail Ranch's deceased madam, who claims that his wife told him that Mr. Hughes had been to the Ranch more than once.  Mr. Harrell also notes that the road where Mr. Dummar allegedly picked up Mr. Hughes was just six miles south of the Cottontail Ranch.

There are some pretty big problems with these witnesses and their stories.  Perhaps the biggest problem is that Mr. Magnesen now has two potential (and mutually exclusive) ways to put Mr. Hughes on the road where Mr. Dummar allegedly rescued him.  If Mr. Hughes was picked up in the desert after fleeing the Cottontail Ranch, then he couldn't have been picked up after leaving the Mizpah Hotel.  Similarly, if Mr. Hughes was picked up in the desert after leaving the Mizpah Hotel, then he couldn't have been picked up after fleeing the Cottontail Ranch.

There's also the issue of witness veracity.  After all, it seems fair to think that the jury didn't believe Mr. Dummar's story about the '67 Incident in part because he originally lied about leaving the Mormon Will at the Mormon Church.  To his credit, Mr. Magnesen details Mr. Meier's various problems with the law (among other things, he was apparently embezzling from Mr. Hughes), which make him a less-than-reliable witness.  (It doesn't help matters that Mr. Meier refuses to answer Mr. Magnesen's follow-up questions.) 

Mr. Deiro's comments also raise some questions -- for instance, Mr. Deiro says he only recently learned about the '67 Incident from an AP newspaper article.  More importantly, Mr. Deiro's comments about Mr. Hughes' departure from the Cottontail Ranch strike me as bizarre -- consider this passage from pages 237-238:

"[Mr. Deiro] explained he wasn't very concerned [about Mr. Hughes leaving the Ranch] because, if his memory is accurate, he was told that Hughes had left with someone.  He doesn't recall who it was.  He explained he was more concerned about the possible loss of his job.

Deiro took off in the Cessna as the sun was breaking in the east.  He circled the area a few times gaining altitude, but he didn't see Hughes wandering in the desert.... As a good-bye, he buzzed the brothel while laughing to himself as he knew the noise would stir those inside.

Deiro didn't know what to think about Hughes disappearing, but he never heard a word about the incident.  It turned out to be the last time Hughes spoke with him or flew with him.  Deiro says he didn't think much about the cold shoulder because most everything he had done for Hughes was strange and out of the ordinary.  He felt, "No news was good news."

If you took your boss to a brothel (which I don't recommend!) in the middle of the desert and awoke to find him gone, wouldn't you do a little more follow-up?  And if you were told that your boss had left with someone, why would you bother flying over the desert to look for him?

Tomorrow: Part 2 of my review

In talking about Howard Hughes and the Mormon Will, it's helpful to have a little background, both in terms of the contents of the Mormon Will (which I posted last week) and the major issues involved in the Will contest.  A very brief summary of the facts:

• Howard Hughes was a very rich man -- at one time, the richest man in the world.
• Mr. Hughes was also... let's say, eccentric.  He was also a recluse for the last part of his life.
• Mr. Hughes died on April 7, 1976.
• As Gary Magnesen states in his new book The Investigation, which I'll begin reviewing tomorrow, "[a]ll sorts of wills began to surface after Hughes's death.... There were approximately three dozen wills submitted to the courts in various jurisdictions." (page 51)
• One of the Wills that surfaced after Mr. Hughes' death was a handwritten, three-page document that came to be known as the Mormon Will.  On April 27, 1976, someone (see below) left this Will at the Mormon Church in Salt Lake City.
• To most observers, the biggest surprise in the Mormon Will was the bequest of 1/16th of Mr. Hughes' estate to Melvin Dummar.
• Mr. Hughes' heirs (who would inherit his entire estate if Mr. Hughes died without a valid Will) fought the admission of the Mormon Will to probate, arguing that it was a forgery.
• More specifically, Mr. Hughes' heirs argued that Melvin Dummar or his wife had forged the Mormon Will (in whole or in part).
• Mr. Dummar claimed that he had not forged the Mormon Will, and that he had been made a beneficiary under the Mormon Will because he had rescued and given a ride to Mr. Hughes out in the Nevada desert in late December 1967.
• A jury found the Mormon Will to be a forgery.  This conclusion was presumably based, at least in part, on the fact that the jury didn't believe Mr. Dummar was telling the truth about the 1967 incident.
• In finding the Mormon Will to be a forgery, the jury may have considered the fact that Mr. Dummar originally lied about leaving the Will at the Mormon Church.  Mr. Dummar had originally claimed that he didn't do so; later, after forensic analysis showed Mr. Dummar's fingerprints on the envelope containing the Mormon Will, Mr. Dummar admitted that he had left the Will at the Mormon Church.  He claimed that the Will had been dropped off at his gas station by a mysterious stranger soon after Mr. Hughes' death.

A few months ago I wrote briefly about Howard Hughes and his so-called Mormon Will.  The Will is a hot topic of conversation once again with the publication of The Investigation: A Former FBI Agent Uncovers the Truth Behind Howard Hughes, Melvin Dummar and the Most Contested Will in American History, by Gary Magnesen.  I just finished reading The Investigation, and will spend next week discussing it and the Mormon Will.  To kick things off, though, I thought I would print the text of the Mormon Will in its entirety -- here it is:

Last Will and Testament
   
I, Howard R. Hughes, being of sound mind and disposing mind and memory, not acting under duress, fraud or the undue influence of any person whomever, and being a resident of Las Vegas, Nevada, declare that this is to be my last will and revolt [sic] all other wills previously made by me -

After my death, my estate is to be devided [sic] as follows -

first: one-forth [sic] of all my assets to go to Hughes Medical Institute of Miami -

second: one-eight [sic] of assets to be devided [sic] among the University of Texas - Rice Institute of Technology of Houston - the University of Nevada - and the University of Calif.

Third: one-sixteenth to Church of Jesus Christ of Latter-day Saints - David O. McKay - Pre.

Forth [sic]: one-sixteenth to establish a home for Orphan Cildren [sic] -

Fifth: one-sixteenth of assets to go to Boy Scouts of America.

Sixth: one-sixteenth to be devided [sic] among Jean Peters of Los Angeles and Ella Rice of Houston -

seventh: one-sixteenth of assets to William R. Loomis [sic] of Houston, Texas -

eighth: one-sixteenth to go to Melvin DuMar [sic] of Gabbs, Nevada -

ninth: one-sixteenth to be devided [sic] amoung [sic] my personal aids [sic] at the time of my death -

tenth: one-sixteenth to be used as school scholarship fund for entire country - the spruce goose is to be given to the City of Long Beach, Calif.

The remainder of my estate is to be devided [sic] among the key men of the company's [sic] I own at the time of my death.

I appoint Noah Dietrich as the executer[sic] of this Will -
   
signed the 19 [sic] day of March 1968

Howard R. Hughes

This month's CBA Record features a short interview with Judge Arthur Perivolidis, who manages the Cook County Probate Division's pretrial mediation program (also known as Calendar 14).  Here's what Judge Perivolidis has to say on the subject of probate mediation:

Approximately 90% of our cases settle.  I sincerely believe that anything can be settled.  You don't need to take 25 depositions and spend five years generating paper.  The best file is a closed file.  You can learn enough about the case to set the stage for settlement a lot sooner, and if you do, I think you'll have happier and more satisfied clients.

In a mediation conference, I usually start out by telling people, "I'm not here to force you to do anything.  Mediation is communication.  My job is to facilitate communication between you." It's confidential.  People can say whatever they want.  I allow parties to vent, if that's what they need to do.  Many of these lawsuits are between family members, and sometimes the parties haven't spoken with each other for many years even though they're related.  It's amazing what comes out when you give people a chance to speak freely, and giving people a chance to do that facilitates settlement.

Another benefit, especially in cases involving guardianship and visitation, is that if you settle a case before trial, the parties don't have to hang their family's wash in the courtroom.  Mediation conferences are private.  Parties can disclose things to me in confidence.

I truly believe that mediation and other forms of alternative dispute resolution (ADR) are incredibly important in the probate litigation process, and will become even more important in the future.  My two frustrations are (1) lack of options for probate ADR (Judge Perivolidis seems like the only game in town) and (2) unwillingness on the part of other attorneys to engage in ADR.  This second point exposes a rarely discussed (but inherent) conflict of interest for litigators, probate and otherwise -- the more protracted the case, the bigger the fee.  And, since ADR's main purpose is to resolve disputes quickly and easily, more ADR means lower fees for the participants' attorneys.  In my opinion, attorneys need to "get over it," and start putting their clients' best interests ahead of their own financial interests.

Regarding the second point -- I'm going to be obtaining my mediation certificate early next year, and if all goes as planned, will be able to offer mediation and other ADR services for probate litigants soon thereafter.