Mediating Probate Cases: Make Sure Everyone Is Notified

The Court of Appeals has invalidated a portion of a mediated settlement agreement as to a party who was not present at the mediation due to lack of notice. In this probate case, In re Meddie Allen Brown (unpublished per curiam opinion of the Court of Appeals, issued April 9, 2020, Docket No. 342485), the decedent left three children, Randall, Barbara and Mark. Randall was personal representative and trustee, and Mark petitioned the probate court to remove him, alleging that Randall had undue influence over their father, and that he failed to keep them informed about the estate. The case was sent to mediation. Barbara did not attend. Why she did not remains a mystery.

Mediation Agreement Without Sister

In the mediation, the two brothers reached a settlement whereby Randall would pay Mark and Barbara $1,000,000 each for withdrawing all their claims. When Randall petitioned the court to close the estate based on the mediation agreement, both Mark and Barbara objected on the ground that Barbara had not been notified about the mediation and did not sign the agreement. The probate court ruled that Barbara was bound by the actions of the fiduciary, Randall, and that Barbara had received sufficient notice of the mediation and chose not to participate.

Court of Appeals: Fiduciary Must Notify

The Court of Appeals disagreed. It found that the only notice of the mediation received by Barbara was the probate court’s pre-trial scheduling conference order advising that the mediator had been selected and that mediation must be completed by June 7, 2017. The fiduciary is obligated under MCR 5.120 to notify and inform all interested persons regarding any contested matter, and Randall failed to do that. The Court also noted that Barbara could not be bound by the mediation agreement because neither she nor anyone with authority to represent her signed the agreement, as required under MCR 2.507(G).

Randall suggested on appeal that, under MCR 2.411(C)(1), the mediator is supposed to contact the parties to schedule mediation, and the fact that the mediator did not contact Barbara is further evidence that she was not considered a party to the mediation required to receive notice. The Court did not believe this relieved the fiduciary of his obligation to notify under MCR 5.120. The Court thus vacated the court order that the mediated settlement agreement was binding and enforceable upon Barbara.

The Court acknowledged that Barbara did know about the mediation, through the scheduling order sent her by the probate court. It also noted that Barbara provided an affidavit averring that she was not aware of the mediation’s occurrence until after it was completed. The Court seems to have overlooked Barbara’s lack of credibility to make the larger point that a party cannot be bound to a mediated settlement if that party does not attend the mediation, unless there is clear notice and designation of a representative who will attend the mediation on the party’s behalf.

Mediator Must Notify?

While the Court blames the fiduciary, Randall, for not notifying Barbara, the Court could have read MCR 2.411(C)(1) to make the mediator bear some of the burden as well. It requires the ADR clerk to send a copy of the mediation order “to each party,” then for the mediator to “confer with the parties” to schedule the mediation. In this case, the court sent a notice to Barbara as a party, but the mediator apparently did not “confer” with her. Why not? The opinion implies (in a footnote) that the mediator notified only Trustee Randall and Petitioner Mark, and not the third sibling, Barbara, because Barbara did not join in filing the petition. Perhaps the mediator assumed that, since Barbara was not a named party, she did not need to be notified; or that one of her brothers would represent her interests also. The mediator in this case is experienced, and it’s hard to believe that he just chose not to contact the third sibling of a three-sibling estate case, especially when it became clear that the settlement would involve her share of the estate. There must be more to the story, but confidentiality may preclude us from finding out.

This case is reminiscent of Peterson v Kolinske, another unpublished Court of Appeals case involving an estate mediation (unpublished per curiam opinion of the Court of Appeals, issued April 17, 2018, Docket No. 338327), where one of the adult children, Theresa, was unable to attend the mediation, so the mediation agreement was held to be valid only as to the siblings who signed it in the mediation. The Court of Appeals noted that, although Theresa was given notice of the mediation, she was merely an interested person, “not a party to the proceedings,” and a written agreement to alter estate distribution is effective only via a written agreement executed by all who are affected by its provisions, MCL 700.3914.

Lesson for Mediators

The lesson for mediators seems to be that, if you want the agreement to be enforceable against all the participants named in it, you need to lean on the fiduciary to make sure s/he notifies them all about the mediation, and has them clearly designate a representative if any one of them chooses not to attend the mediation. Taking the two cases together, it also appears that mediators cannot rely on the legal definition of a “party” in deciding whom to notify about a mediation, pursuant to MCR 2.411(C)(1). In probate cases, the mediator would be wise to notify all potential beneficiaries, and not to proceed unless they all plan to attend or clearly designate a representative.


Ministers Sue Their Denomination

A denomination’s attempt to discipline two of its ministers has spawned years of litigation.

Both ministers occupied positions in the Presbyterian Church USA (PCUSA)’s national hierarchy. Reverend Roger Dermody was deputy executive director of missions, and supervised Rev. Eric Hoey was director of evangelism and church growth. Rev. Hoey and some of his colleagues formed a nonprofit, apparently without PCUSA authority to do so. The PCUSA conducted an internal investigation and, in accordance with its Book of Order, issued warnings to the Presbytery. It issued a formal warning against Rev. Dermody for violating several PCUSA policies, including its ethics policy. It fired Rev. Hoey, and informed his home congregation that his termination was due to ethical violations.

Both ministers denied any wrongdoing, and each sued the PCUSA in court for defamation in 2015. Their lawsuits took different courses.

In the Dermody case, instead of determining that it had no jurisdiction over an internal church dispute, the court considered the defamation claim: truth is a complete defense to defamation, and the only way for the court to determine whether the PCUSA’s finding was true would require the court to interpret church doctrine and policies, which courts are loathe to do, under what they refer to as the “ecclesiastical abstention doctrine.” The court granted PCUSA’s motion for summary judgment, and the Kentucky Court of Appeals affirmed, Dermody v Presbyterian Church U.S.A., 530 S.W.3d 467 (Ky.App. 2017).

We might prefer to see courts apply the “ecclesiastical abstention doctrine” at the outset and refuse even to consider the elements of the claim, but in any case, the court got this right; this internal dispute over whether the minister acted ethically does not belong in a state court.

One commentator termed this case “a victory for church discipline.”

Rev. Hoey’s case took a different path through the courts. He won a procedural motion in the trial court, which was affirmed by the Kentucky Court of Appeals and its Supreme Court, Presbyterian Church U.S.A. v. Edwards, 566 S.W.3d 175 (Ky. 2018).  (Edwards was the trial court judge who ruled against the PCUSA).

The PCUSA  petitioned the US Supreme Court for cert. PCUSA presented the issue as, “Whether the First Amendment requires a court to dismiss a claim without discovery or further proceedings when the claim, as expressly pleaded, contests a church’s termination of a minister’s employment on grounds that necessarily require judicial inquiry into church doctrine, policy, discipline or governance.” That petition for cert. was ultimately denied this past October (No. 18-1441, cert den October 7, 2019), four years after litigation began.

It may well be that an injustice was perpetrated against these two ministers, and that their reputations were unfairly tainted. But the Apostle Paul said it was better to be wronged than to sue your brother in court (I Cor. 6:1-7). But Christians do have another way to seek justice: within the church, not in the courts.

Christian Students Sue Their Christian College

A lawsuit involving Christians on both sides was filed in Federal Court this week. Several students of Liberty University in Lynchburg, Virginia, are suing their college for return of fees paid for services not received. In the wake of the coronavirus pandemic, the college moved its courses online and reduced its campus services and activities in March, but kept the dorms open and refused to refund room and board fees for the balance of the semester.

This is an issue facing colleges and college students around the country this spring, and there are reports of other lawsuits over this issue. But, being the largest Christian college in the U.S., one would prefer that the Liberty University students and leadership had been able to work this out privately, in accordance with biblical injunctions against taking disputes to court (I Corinthians 6:1-7).

The students, who filed this class action on behalf of thousands of other Liberty students, may have selected their attorney, a class-action specialist from Chicago, for his legal expertise more than his familiarity with Scripture; if so, they have a wonderful opportunity to show him how Christians resolve their disputes, in love, in private. The college likewise will hopefully do everything in its power to settle this matter swiftly, privately and fairly (Matthew 5:25).

Church Re-unites 24 Years After Split

Church splits are common news. But congregations re-uniting after a full split? That’s a God story.

In 1993, First Baptist Church of Ellisville, near St. Louis, Missouri, divided in two: 400 members left to start a new church, and 400 stayed behind. The new church, West County Community Church, built a building five miles down the road from their former church. For the next 23 years, both churches carried on separately. In 2016, the Community church got a new pastor, who learned of the history and thought about reconciliation: “The gospel is seeing broken pieces put back together. That’s the redemptive story.”

Then leaders of both congregations realized that the other church had resources they lacked, and they began to consider a merger. The original church had a graying membership and an aging building in need of costly repairs; the new church had a beautiful structure but insufficient funds to maintain it, and insufficient numbers to fill it. Not everyone was in favor of a merger, especially those members who were still hurt by the split. But many saw this as an answer to prayer, and in 2017 the leaders of both churches started merging the two congregations that had once been one.

They acknowledge they made some mistakes as they merged the two church cultures, and they lost some members, but apparently the re-united church is now thriving, with a new name, Fellowship of Wildwood. The congregation worships in the newer building; the proceeds from sale of the original building paid off the mortgage for the newer one.

I would be interested to hear more specifically what they did to heal the wounds from the church split. Contrary to the saying, time does not heal all wounds, and conflicts present unique opportunities to experience the power of the gospel. But this is a hopeful story in a time when we long to see signs that God is at work among us.

Conflict With Your Ex Over Parenting? There’s an App for That

The “stay home” orders around the world are forcing us to minimize personal meetings and maximize technology. One example: mediators and family judges often met with divorced or separated parents to help them resolve issues regarding their children, like child support, parenting time, and education. Those in-person meetings are no longer available, at a time when demand may be increasing due to the stress of the pandemic.

Technology to the rescue: the co Parenter app. According to an ABA report,  “CoParenter is a platform that allows users to create parenting plans and decide everyday issues, such as whether a teen should be allowed to get a mohawk or tattoo. A paid yearly or monthly subscription includes on-demand access to a network of mediators to help the parents reach a resolution if they can’t agree. Its creator, Jonathan Verk, realized that many angry parents waiting in courtrooms to have a judge decide their parenting disputes were not fighting about legal issues, so they didn’t really need a judge or attorney. And they were unrepresented. So he created an app that “allows divorced or divorcing couples to interact in a businesslike manner that eliminates conflict. The app uses machine learning to identify hostile language that can derail negotiations.Mr. Verk presented his app at the ABA Techshow 2020 held in late February in Chicago – a perfect time, as it turned out, to tout a technological solution to a problem that was about to become almost impossible to address in person.

Will the app render mediators obsolete? Not likely, humans beings being what they are. But it could help frustrated couples work through at least some of their issues. It’s just another example of how technology is intersecting with dispute resolution.


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