I started out as a landscape contractor, then worked for the City of San Diego, in the Park and Recreation and Engineering Departments for 14 years.

In 1990 I decided to go to law school, changing careers completely. I worked full time and attended law school at night, which took 4 years to complete.

My undergraduate 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 up their businesses as LLCs or Corporations, reviewing contracts and commercial leases, and I handled some litigation cases.

One of my clients asked me if I knew how to draft a trust because they had heard that was a good thing to do, and wanted to put their business into a trust, So I did what every new attorney does and learned about estate planning so I could do that work too.

That led me to my first probate case and my introduction to probate court and other Trusts and Estates attorneys. I found that I really liked this work and by 1997 my practice was focused entirely on Trust and Estate law.

When I had enough experience I qualified to become a California State Bar Certified Specialist in Estate 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 Trusts and Estates.

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 through to a court trial. Incidentally, with the exception of conservatorships, all disputes in probate court are decided by a judge without a jury.

‍My Mediation Experience

My first introduction to mediation was in an elective course in law school, which led to my interning with the City Attorney's office where I assisted with resolving neighborhood disputes.  

So, I was already familiar with the process when I first started using mediation to help resolve my client's cases.

After attending a number of mediations as counsel for my clients, I decided to expand my knowledge by taking a specialized training course in mediation offered by the National Conflict Resolution Center here in San Diego.

That training increased my ability to help my own clients settle their cases. The probate court requires all litigants to participate in either a mediation or, for cases that don't have the resources to pay for mediation, a Mandatory Settlement Conference, prior to the assignment of a trial date.

The Mandatory Settlement Conference program is staffed entirely by volunteer attorneys with experience in trust and estate matters and who are familiar with dispute resolution methods.

Some of my own cases have benefited from the services of those volunteer attorneys, so in 2009 I began volunteering with the Probate Court, serving as a Settlement Conference Officer, essentially returning the favor so to speak. That work also offered me the opportunity to combine my years of experience as a trust and estate litigator with my mediation skills, assisting other attorneys and their clients in resolving disputes.  

I began working formally as a paid mediator through the West Coast Resolution Group in 2020, focusing on trust and estates dispute resolution,  in addition to continuing my trusts and estates practice.  WCRG is an affiliate of the National Conflict Resolution Center, and has a talented team of professionals who manage the scheduling and logistics for my mediations. WCRG also has an entire floor of conference rooms for use during in-person or hybrid mediations.

What are the Benefits of Mediation?

To begin with, it’s important to understand that the only people who enjoy litigation are the attorneys and their staff.  In fact, no one wants to be sitting in an attorney’s office unless they work there, have friends who work there, or provide services to the firm. Even getting an estate plan done can be uncomfortable, because you have to face the fact of your own mortality. And of course, attorneys are expensive.

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. 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 protect their rights.

However, that role also must include the ability to help clients resolve disputes 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.

Litigation is complex, time consuming and astonishingly expensive. There are very strict rules that govern how a court case proceeds from the first petition or response filed with the court all the way through to a trial before a probate judge. It is not uncommon for a trust and estates case to take up to 2 years to complete and the price tag for all that work can easily exceed $100,000 or more.

Litigation also carries considerable risk. In order to take a case to trial the parties must present witnesses who will testify in court and present other evidence in the form of documents that support their claims or defenses. This creates variables that are often beyond the control of the client and their attorney.  

No one can guarantee how well a person will perform when they are sitting in the witness box. Witnesses who present as confident and credible when they are initially interviewed often experience significant stress as the trial approaches. They can become so flustered that they don’t sound nearly as credible on the witness stand as they did sitting in the lawyer’s office.

The other wild card is not knowing how the judge is perceiving the witnesses and how he or she is gauging the credibility of the testimony. A 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 one side prevails and the other side loses. The judge must follow the law exactly and cannot be creative with their rulings.

So, how can we mitigate this risk?   By reaching a settlement through mediation with the opposing party as early in the case as possible, that's how.  The parties in a mediation do have the ability to craft creative settlements that avoid the win-lose scenario.

The courts are also heavily invested in ensuring that parties in litigation participate in settlement efforts early in the case, either by mediation or mandatory settlement conference. Not only is this better for the parties, but every settled case is one less for the court to manage, and the probate courts in particular are experiencing a greater influx of cases as our population ages.

The Mediation Process

‍Mediation can occur before a case is ever filed in court. In fact, some parties who are able to handle settlement negotiations directly, because they're still actually speaking with one another, can often utilize an experienced attorney or mediator as a coach to help them frame their positions.

Even cases that do wind up in court, can benefit from early mediation once both sides are clear about their own position and that of the other side.

Often the parties will want to conduct limited discovery before going to mediation to ensure they understand the other side's position and the evidence they might present at a trial.

Discovery is a process where the parties exchange written questions and answers, and sometimes also includes taking depositions. A deposition is a procedure where a key witness, often a party, is asked questions under oath by an attorney. The questions and answers are taken down verbatim by a court reporter and later turned into a printed transcript.

Typically, when the attorneys are confident they understand the other side of the case, they will confer and choose a mediator who has a good reputation and knowledge about the area of law that relates to the case. The mediator's staff then take over and coordinate dates to schedule the mediation.

With the overwhelming adoption of Microsoft Teams and Zoom, mediations can be done remotely. This is convenient when the parties live in different cities or states. The courts all offer some kind of remote video appearance option for hearings.

Many people feel that in-person mediations are more productive, and I agree that’s true for some cases but not all.  Some people who are elderly or are otherwise at risk, want to avoid the risk of catching Covid or another respiratory disease. Some people are also better able to participate in a day-long mediation if they are in their own home with a comfortable chair, their kitchen and a restroom nearby. Also as I mentioned earlier, mediations can also be hybrid with a combination of in-person and remote participants.

Once the mediation has been scheduled, the parties will exchange mediation briefs, where they provide a description of the case and identify the law and 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.

When I mediate a case I schedule a short individual meeting with each attorney after I’ve reviewed the briefs. I use these advance meetings to gain insight into the parties personalities, confirm that the attorneys have explained the mediation process to their clients and learn about any prior settlement negotiations. I also confirm that the attorneys have discussed the risks of litigation and benefits of settlement with their clients.

The day of the mediation I start out by meeting briefly and privately with each party and their respective attorneys – either in separate Zoom rooms or separate physical conference rooms – and go over the rules around confidentiality and how the mediation will progress.  Everything about a mediation is confidential, from the briefs to everything said by anyone during the mediation, in fact it's important to include a provision in any written settlement agreement confirming the agreement is not confidential.

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 each party. My initial goal is to give each party the opportunity to tell me about their side of the case, in their own words, and hopefully identify any areas where they may be able to agree before moving on to the areas where they are in sharp disagreement.

For example, when the dispute involves claims that one side has acted improperly or stolen money from an elder, it’s common for the parties to agree that the central focus is making sure the elder is safe and being cared for properly.

I also reiterate the benefits of reaching a settlement during the mediation and the risks of taking the case to trial.  An important factor that I emphasize is the financial and emotional cost to each party if they continue the dispute for another 6 to 12 months.  Peace of mind and the ability to return to one’s own life without waking up and worrying about the first thing every morning has significant value to most people.

Many times the attorneys want me to share my personal experience and insight into their client's dispute. For example, when asked to do so I can identify strengths and potential weaknesses in each party’s position. I can share how my own cases have taken unexpected turns, as well as emphasize the uncertainty of how the judge will evaluate the evidence.

Mediations generally require at least a full day to complete simply because the parties need time to tell their story, consider offers, make counter offers and consider creative solutions. My role is that of shuttle diplomacy, going back and forth between the parties, conveying offers and counter offers as well as my own observations. The parties also require time to consult with their counsel privately after receiving an offer or counter offer.

Ultimately, I’m happy to say that the vast majority of the cases I’ve mediated have resulted in settlement and a written agreement.  By the way, another topic I discuss with the attorneys during the pre-mediation meetings is my expectation that they will work together before the mediation to prepare a written settlement agreement containing all the agreed legal provisions and which only needs the specific settlement terms inserted.

I've found that waiting until the end of mediation to start discussing how the settlement agreement should be drafted, can derail settlements because the parties are often physically and emotionally exhausted and want to be done. Also, because buyer's remorse is a real thing, I require parties who have reached a resolution to actually sign a settlement agreement before concluding a mediation.

‍Tools and Additional Information
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‍Merrianne E. Dean
Bellator Law Group, APC
555 W. Beech Street, Suite 400
San Diego, California, 92101
619-232-8377
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Website: https://Bellatorlawgroup.com
Mediation Worksheet https://www.bellatorlawgroup.com/worksheet  
West Coast Mediation Group: https://ncrconline.com/mediation-conflict-resolution/west-coast-resolution-group/mediator-bios/