With death from cancer closing in, Gladys had some finalwishes. One stuck out above all: She wanted Joseph, her husband of 48 years, to remarry. He just wasn't the sort to get by without a woman to take care of him.In January 1980, at the age of 69, Gladys died in bed in the Pinellas beach home she had shared with Joseph since the early '70s. It had been, by all accounts, a good life, filled with religion and hard work, a life blessed with a strong marriage and four children who had really made something of themselves.
Gladys never envisioned that 23 years later, two of her children would end up in a St. Petersburg law office trying to settle a dispute over her estate, hoping to fend off a lawsuit and the likelihood of several more. She couldn't have guessed that Joseph would have raided her estate in order to buy retirement home contracts for him and the second wife, or that her carefully laid plans might leave her children short of the inheritance she intended.
Fortunately this unexpected turn of events had a relatively happy ending. By using an increasingly popular means of dispute resolution — mediation rather than litigation — her children and the second wife saved tens of thousands of dollars in legal costs, got the best result they could under the circumstances and averted what could have become a scorched-earth family feud.
This is the story of how it worked.
Gladys and Joseph were in their teens when they met at the Nazarene Church in their hometown, a working class suburb of Boston. They married in 1932 at the height of the Great Depression. They were both 21. Neither came from money. They would have to make it on their own.Joseph opened a radio repair shop and did OK. He landed a job at a large department store and worked his way up to service manager. The children, three boys and a girl, were born between 1935 and 1940.
Gladys worked outside the house when she could. She took a job selling Spirella undergarments door to door. The mother of legendary boxer Rocky Marciano was one of her customers.
By 1945, the couple had done well enough to build a vacation cottage on a lake in New England. To help pay for it, Gladys ran a tearoom there a few summers. For decades, it remained the family's getaway. In 1949, the store sent Joseph to one of the first television repair schools. Within a year, he'd become service manager for New England. In '55, he was named national service manager and moved the family to suburban Chicago, close to company headquarters.
Joseph loved reading and classical music, but it was Gladys who pushed the kids into higher education. The oldest son received a master's in electrical engineering, the second son a degree in chemistry. Son number three, Edwin, earned a doctorate in political science and was a professor of Soviet studies at Ohio State from 1964 to 1990. Jan, the youngest, received a master's in education and opened her own Montessori-style school, which she still runs.
Over the years, Gladys inherited modest sums from relatives. Like many married couples, she and her husband decided to establish separate trusts. Most of Gladys' money had gone into purchasing the Florida house and improving the New England bungalow, so they decided to put the homes in her trust. The arrangements were finalized in May 1977, a month after Gladys' cancer was diagnosed. Even though she encouraged Joseph to remarry, she didn't want the money in her trust to benefit a second wife. That was for her kids. She named her son Edwin co-trustee with Joseph.
Gladys had two long-time friends who pursued Joseph after she died. The kids figured he'd marry one of them. Then Sarah came along. The widow was a year older, lived a few blocks down and had known Joseph and Gladys only casually. Six months after Gladys died, Joseph invited her to the lake house up north, a bit of a shock to his kids. They married the following summer.
Sarah was more social, less refined, than Gladys. She and Joseph took dance lessons together, ate out a lot with friends. Sarah took care of Joseph, but that became harder and harder as he pushed 90 and she started to develop dementia. By 2000, the beach home was getting too much for the elderly couple, so they made plans to move into a nice retirement facility in Pinellas County.
This is when Joseph invaded his late wife's trust. In May 2000, he took out an equity line against the beach house, using nearly all of the money to buy contracts for him and Sarah at the retirement home. Co-trustee Edwin, who was working in Eastern Europe during the transaction, says he was left out of the loop. A bank and title company erred by expediting the mortgage without his involvement. Four months later, Joseph put a For Sale sign outside the house and, as his daughter Jan put it, "sold it to the first person that walked in. He got about half of what he could have. Something was wrong with my dad when he sold that house."
Gladys' deathbed wishes had been breached. Money from her trust had benefited a second wife.
Joseph died of heart failure in November 2002. Sarah was due a third of his estate, but trustees Edwin and Jan controlled it. Jan's son Donald pored over his late grandfather's financial records. Why, how, had money from Gladys' trust been used for the retirement contracts? They decided to withhold Sarah's share of Joseph's trust.
Meanwhile, Sarah's dementia worsened. She moved into an assisted-living apartment, where staff would provide her meals, help her take showers and do laundry, and make sure she took her medications.
Sarah gave power of attorney to her niece Angela, an accountant who lives with her husband in the Midwest. Angela asked Edwin, Jan and Donald to release her aunt's portion of Joseph's estate. They balked. Lawyers got into the act. After several months of increasingly tense missives, Angela decided to sue for Sarah's third of Joseph's trust, about $70,000.
Here's some news: The courts are clogged. Got a beef with someone, you sue. It's the American way. In Pinellas and Hillsborough counties, roughly 90,000 civil suits are filed each year.At the same time, the last decade or so has seen a dramatic rise in ways to settle legal battles outside the courtroom. The movement is called Alternative Dispute Resolution, and one of its most effective means is mediation. That's where legal foes and their attorneys enlist a neutral third party, a professional mediator, to help reach an accord.
Mediations can happen very early in the proceedings or way down the line, just before a judge or jury decides the case. In fact, Pinellas and Hillsborough courts require mediation before a final ruling in civil cases, but experts say it often happens too late, when sides are entrenched and a lot of money has already been spent. "Once people start into litigation it becomes harder and harder to settle because the feelings start to ossify," says St. Petersburg attorney Peter Wallace.
Even so, most civil cases settle out of court, and many of these agreements are achieved via mediation. This method of conflict resolution can offer myriad advantages to those who find themselves mired in lawsuits. Most notably, people can spare themselves the money, time and emotional turmoil of a protracted litigation. It's common for suits that would ordinarily draw out two or three years to be mediated successfully in a single day. As a byproduct, monetary awards get paid out more quickly because the parties mutually agreed rather than had a decision handed down by the court.
Mediation also helps ease court congestion. Pinellas Circuit Court Judge John Lenderman, who champions mediation, says he's currently booking civil trials four to five months out. If not for mediation, they would not see the courtroom for a year.
Edwin, Jan and Donald could've sued back. Their claim against Sarah would have been larger, close to a quarter-million dollars. After conferring with their Seminole lawyer, Paul Cavonis, they decided to give mediation a try. Cavonis floated the idea to Wallace, Angela and Sarah's attorney, who agreed that the case was ripe for it.They contacted Chuck Ross, a lawyer who gave up a partnership in the downtown St. Petersburg branch of the Holland & Knight law firm to hang out his shingle as an independent mediator.
The timing was ideal, because not enough volleys had been fired to open a yawning chasm between the parties. Both sides were highly motivated to settle and sophisticated enough to participate in a negotiation. The case was not burdened by an extensive need for legal discovery, the process of exchanging documents and other evidence. The suit was precisely the kind that should be mediated early — but too often is not.
They convened at 9:30 a.m. on a balmy Tuesday in late fall at Ross' office in northeast St. Petersburg:
Edwin flew in from New England. Jan and her son Donald, acting as an advisor, came from the Midwest. Cavonis represented the trio. Angela was accompanied by her husband Scottie. Wallace, their lawyer, showed up in slacks and a plaid shirt; otherwise it was a pretty buttoned-down group.
Ross greeted everyone with his usual effusive manner. The North Carolina native has a broad, open face and talks like Foghorn Leghorn's articulate cousin, peppering his speech with "y'alls" and homespun metaphors. His office, a converted old house on Dr. Martin Luther King Jr. Street North, is designed for comfort and maximum human communication. You can't walk more than 10 feet without finding candy in a jar. Plush rugs decorate rich, hardwood floors. Comfy chairs hug expensive conference tables. Along with two cozy conference rooms, there are three smaller spaces for sidebar meetings and an outside deck for a change of pace. Ross had the place insulated for soundproofing and added a monster AC unit to keep everything cool and fresh.
After perfunctory greetings in the lobby, the mediator announced, "Y'all ready to go? Let's do it."
Gathering in the largest conference room, Ross outlined the process:
This is an informal meeting, he said, there are no rules and regulations. It's a collaborative effort. The sides work together for a resolution. "I am impartial to the parties' interests," he said. "I walk the center line, no matter what my feelings. If you look at the process as a car, I'm the oil that keeps the engine running."
Ross ran through the advantages of mediation. It comes with complete confidentiality: Nothing said can be used in court; nothing ends up in public records. In mediation, the parties get to take charge, to control the outcome, whereas in civil suits they often become spectators. "The legal system is designed to keep us in suspense until the very end, when a judge or jury decides," he added.
He warned that neither side would walk away totally satisfied, that the exercise was not designed to declare an absolute winner. Each of the parties would have to make concessions, he counseled, but in return they would be rewarded with closure.
Then he got to the good stuff. Settling the case would save the parties vast sums on legal fees. Just as important, it would spare them the time and stress that come with a lengthy legal scrum. Then he added an element of fear, which he would give in measured doses throughout the day: "It's apparent that this is a lawyer's-annuity-type situation. It could keep lawyers busy for years. Legal fees could actually eat up all the assets. It sounds crazy but I've seen it happen."
Seated at the table, Wallace and Cavonis made informal opening statements. Ross drew a line down the middle of a legal pad and took notes. Throughout the day, he would have to ingest vast amounts of complex information and legal arguments on the fly. He also had to be an astute listener, interpreting the subtext of comments and reading body language.It became readily apparent that Donald, the grandson, would be the wildcard. The 32-year-old history teacher had invested hundreds of hours in research and was convinced of the rightness of his position. He wore a near-constant frown, pursed his lips and occasionally got flustered when he spoke. Donald was not a trustee, however, and thus wouldn't officially be part of the outcome. His uncle Edwin, who had experience with international negotiations, took a conciliatory tack. Jan played it closest to the vest. Was she eager to settle or would she follow her son and take a hard line?
On the opposite side sat Angela, a prim, soft-spoken woman with a face powdered to near alabaster. She wore a meek expression. Her lawyer's measured tones seemed to soothe her.
After each side laid out its case, they adjourned to separate rooms. Ross moved back and forth, asking questions, drawing out feelings and agendas. Where could he find common ground? How could he frame the issue outside the realm of dollars?
He discovered that both sides wanted to make sure 93-year-old Sarah got to finish her life in the nursing home. Neither party would risk having her moved into a second-rate facility. What's best for Sarah? That became one of Ross' favorite themes. The mediator also found that the adversaries agreed on one crucial fact: Joseph's use of Gladys' trust money had been improper.
One role of a mediator is to point out the weaknesses in each side's case. Ross did not want either to get too confident, which might seduce them into stiffening their position. But it did seem clear early on that Joseph's heirs held the best hand.
Their father had, in fact, misused his late wife's trust. It did not matter whether his second wife Sarah participated; she had, in legal terms, been "unjustly enriched." Any way you added it up, her illicit benefit from Gladys' trust was greater than the one-third she was due from Joseph's estate.
Edwin, Jan and Donald had weaknesses as well. A long litigation hurt them more, held up the money longer. During an extended battle, Sarah would still be comfortable in the nursing home.
Also, to carry through would require suing the bank, the title company, perhaps a couple of other lawyers and, most troublesome, their father's own trust. Edwin, especially, was uncomfortable with Joseph's misdeeds coming out in open court. Wearing a dark gray business suit and conservative tie and boasting an impressive pedigree in academics and business, Edwin was clearly a man who valued respectability. His father's legacy was at stake.
The parties spent most of the morning framing the issue. Ross floated a few ideas with little success. By lunch, they were still at a thorough impasse. The group continued to talk as they ate Cuban takeout. Donald became increasingly antagonistic, bringing up extraneous complaints: Sarah was the "difficult aunt"; she co-conspired with Joseph to raid his grandmother's trust; Angela, Sarah's sole heir, was really after the money; Angela was a liar and she'd falsely accused him of libel, he said. Donald was derailing the mediation.Suddenly, Ross' folksy demeanor vanished. He glared at Donald. "Get on board with me and start getting at peace with this!" he said sharply.
Donald mumbled, narrowed his eyes. Ross then delivered a lecture, reminding Donald emphatically that he was not a trustee but an advisor, that he lacked decision-making power.
Jan watched the smackdown disapprovingly. Throughout the day, she regularly glanced over at her son, reading his mood. It was as if she wanted to lean on him and protect him at the same time. The mediator had taken a big risk, but, "I felt I had to do something or the whole negotiation might've gone down the tubes," he said later.
Ross then backtracked, resorting to his easy manner and thanking Donald for his contribution, assuring him that the scolding wasn't personal.
Ross suggested he meet with just the lawyers in a third room. They launched a rapid-fire exchange of legalese and argued over figures. "Let's not become forensic accountants," the mediator cautioned. The trio left the room with Cavonis more or less conceding that his clients' quarter-million dollar claim was closer to $150,000. They had effectively narrowed the gap.
Mid-afternoon. Time for a push. Ross met with Angela and her attorney. "Sarah's not responsible for them being out the money," Wallace claimed. "They just want her to pay for all of [Joseph's] sins.""Yeah, but she got benefit from the money," the mediator countered.
"I'd rather see 'em have to sue their father's estate," Wallace muttered.
Then Ross delivered an analogy that proved the turning point in the case: "If I rob a bank and somehow you end up with the money, that doesn't mean you get to keep it. It doesn't mean that Sarah gets to keep the money just 'cause she didn't drive the getaway car."
Wallace looked downward. Ross' assertion came as no surprise to him. Angela cocked her head in recognition. "You're playing Russian Roulette with Sarah's money," Ross continued, on a roll. "That scares the Bejesus outa me. If you lose, it may leave her destitute. If you lose the case, Sarah might end up on Medicaid at the local home. The risk here is much higher than a negotiated settlement."
Representing her aunt, the plaintiff, Angela had come into the mediation expecting to receive money. She now had to confront the reality that Aunt Sarah would make a payout to the other side. "The shift in her thinking, her willingness to pay, enabled us to move forward," Ross said later.
Ross urged Wallace to make an offer, just to get things started. After conferring with his client, he scrawled out a figure on paper. It was small, less than you'd pay to buy a decent used car, but Ross had what he needed.
The baton had been passed. The anchor leg had begun. Ross made like a sprinter, zipping from room to room, delivering counter-offers, using the smaller spaces to meet with lawyers and discuss strategy. He got the sides to agree to keep their dollar demands within a certain bracket, a relatively small, manageable number. He also asked Cavonis to prevent Donald from polluting the well. Cavonis said it was under control, that Donald wasn't that much of a problem.
From there it became a matter of closing the bracket. It was a classic back-and-forth, similar to what takes place at a car lot, with each side inching toward the middle. Apparently everyone saw the finish line, because the collective mood brightened some.
Ross asked Edwin and Jan to join him in the conference room, purposely leaving Donald on the sundeck. A few seconds later, Donald bustled into the room on his own. Jan was glad he did. She was getting frustrated with the way her son had been treated, she said later. Excluding him, even that late in the game, could have scuttled the negotiation.
Jan then brought up a new request. She wanted a few of her father's things that Sarah still had in her possession: an old fishing hat with buttons on it, a walking stick, some photographs and other stuff. Ross downplayed it, stressing that it should not be introduced into the negotiation. "Let's get this out of the way and then we'll take care of it," he said.
After a few iffy moments, the parties reached an accord around 6 p.m. Sarah's estate would pay Edwin, Jan and Donald a relatively modest sum, and would dismiss the claim against Joseph's estate. Wallace and Cavonis generally agreed that the dollars were close to what could have resulted if the parties had litigated until the bitter end. They both estimated that the dispute would've taken a minimum of two years in court and cost each side $40,000-$50,000 in legal bills.
Each of the participants in this brief human drama could've scurried to planes or hotel rooms. But there were still those keepsakes and heirlooms to discuss. How would Jan and Angela finish their last bit of business?The men adjourned to a conference room, where they finished the paperwork. Edwin was all smiles, chatting with everyone. The creases on Donald's face eased. He managed a few small smiles. The lawyers looked spent but relieved. Meanwhile, Jan and Angela retreated to a small room and sat down side by side, each looking a little sheepish. "Hi, Jan," Angela said, smiling wanly. It was the first time she'd seen her since mid-morning.
Jan produced a stack of old pictures that showed her father and mother in younger, happier times. She pointed at a silver candelabra in one of the photos. "Have you seen that?" she asked. Angela didn't recognize it. They flipped through the snapshots. Jan consulted a list. There was a vase, a table, mugs from Europe, a wall photo of the New England lake house. Angela promised to do her best to find whatever she could. Jan said, "We don't want anything unless Sarah no longer wants it. They're material things, but it's the sentimental value."
The women rose.
"Thank you for everything," Jan said, touching Angela's shoulder.
"Joseph was such a special person," Angela murmured.
Her eyes grew misty. She reached slowly into her purse and pulled out a tissue.
Because mediation requires confidentiality, pseudonyms have been used in this story, except for the lawyers. Confidentiality as to the terms of the final settlement has been preserved. Eric Snider compiled this account through interviews and by attending the mediation session with the consent of all parties, their attorneys and the mediator. More information on Alternative Dispute Resolution can be found at www.flcourts.org/osca/divisions/adr/. Also, contact the Florida Bar Association at 850-561-5600; 651 E. Jefferson St., Tallahassee, FL 32399.
Eric Snider can be reached at 813-248-8888, ext. 114, or at eric.snider@weeklyplanet.com.
Mediation goes back to when someone broke up a fight between cavemen and convinced them to split the meat down the middle. But it's only been since the mid 1970s that the American judicial system has embraced it. Over the past decade, mediation's popularity as a means of deciding legal disputes has soared.
Currently, Florida has 4,898 mediators certified through the state Supreme Court (165 in Pinellas, 184 in Hillsborough). That's more than three times the number of certified mediators in 1991. (Over the same period, the number of lawyers in Florida has grown by slightly less than half, from 37,089 to 54,643.)
Mediators act as neutral third parties, helping legal foes reach a settlement out of court. The process is different from arbitration, where the third party hears the merits of each side and renders a decision.
Mediation rose in prominence in large part as a reaction to jammed court dockets. Frank E. A. Sander, a professor at Harvard Law School who also holds mediation seminars for lawyers, is widely considered the father of the contemporary mediation movement. In 1976, Warren Berger, chief justice of the U.S. Supreme Court, asked Sander to address the Court about Alternative Dispute Resolution (ADR), of which mediation is a key component.
"That was sort of an example of being in the right place at the right time," Sander said from his office in Cambridge, Mass. "Griffin Bell heard my talk and was intrigued. When he became attorney general of the United States, he set up a whole office in the Justice Department dealing with ADR. Then the American Bar Association set up a committee dealing with it. In some ways, that's considered the birth of the modern ADR movement."
Sander cites three basic periods since. The period from 1976 to around 1982, which he calls "Let a Thousand Flowers Bloom," was a time of rampant experimentation. "Cautions and Caveats" followed, lasting until about 1990. "That's where people raised a lot of questions," Sander said, "and wondered if the movement was all it was cracked up to be."
The professor calls 1990 to the present "Phase In." "We're institutionalizing it," he said. "We're sorting out the wheat from the chaff, seeing what criticisms are valid, what adjustments we need to make. How do we build mechanisms into the dispute resolution system of society so that ADR is naturally resorted to, rather than putting the burden on the person who wants to use them? For instance, creating an obligation for lawyers to canvas dispute resolution alternatives with clients."
Sanders says that Florida is in "the vanguard of institutionalizing mediation."
The circuit courts that include Pinellas and Hillsborough counties require all civil cases to go to mediation before trial. Too often, though, a judge will order mediation well into the process, which can make the sides harden their positions and decrease their willingness to settle. "It might be that all issues are framed, (legal) discovery is done, legal arguments have been made, depositions have been done," said Chuck Ross, a full-time mediator in St. Petersburg. "That might be two years down the road, and then the judge says, 'Before I send this to trial, I want you to go mediate.'"
Pinellas Circuit Court Judge John Lenderman, who handles civil cases, has been a mediation devotee since 1990. As long as he finds the sides on a level playing field, he encourages parties to mediate early. "Often times in mediation, the parties get to declare what's really important," he says. "They can come in, present grievances, make their arguments, have someone listen to them. That doesn't always happen in court, with rules of procedure and evidence."
Lenderman says that he's seen increased buy-in on the part of lawyers. "Most of them love it," he said.
But what of all those billable hours just waiting to be churned? Why would an attorney want to settle a case through mediation when he could continue ringing up fees? It's simple. That would not be in the best interest of the client, lawyers say.
And if that one makes you roll your eyes, there are practical considerations as well. "[Lawyers] have found out universally that they can make a reasonable fee on a case, and it's to their advantage to settle and move on to the next," Lenderman said. "They get sick and tired of these long cases."
Indeed, a marginalized lawyer who doesn't know where his next case is coming from may be less inclined to mediate, but, adds Ross, "Most good lawyers have more business than they know what to do with."
Ardent mediation proponents think the next step is to raise public awareness about this alternative dispute mechanism. The prevailing course of action when involved in a legal dispute is still to sue, and that's not how it has to be. Ross doesn't recommend approaching a mediator before retaining counsel, but consumers may want to float the mediation idea to their lawyers early on.
Sander would like to see mediation permeate the mass psyche.
"We need a [television] program called 'Perry Mediator'."—Eric Snider
This article appears in Jan 28 – Feb 3, 2004.