jou probate & restate planningna l · 8, number 1, for $6 each, plus $2 for postage and...

TABLE OF CONTENTS

MICHIGANPROBATE & ESTATE PLANNING

JOURNALVol. 22 M Fall 2002 M No. 1

STATE BAR OF MICHIGAN PROBATE AND ESTATE PLANNING SECTION

Feature ArticlesFacilitative Mediation—A Good OptionCatherine A. Jacobs ..............................2Let the Dodge Brothers Drive YouHome—Using the Dodge Act andFacilitative Mediation to ResolveProbate and Trust LitigationJohn W. Allen........................................6The Probate Judge OrderedMediation—Now What?Patricia Gormely Prince and Shaheen I. Imami................................10The Caucus in Mediation—It’s MoreThan Shuttle DiplomacyTracy L. Allen ....................................14ADR: The Grand Traverse ExperienceGeorge F. Bearup ................................19

Subscription Information

The Michigan Probate and Estate Planning Journal is pub-lished quarterly by the Probate and Estate Planning Sectionof the State Bar of Michigan, with the cooperation of theInstitute of Continuing Legal Education, and is sent to allmembers of the Section. Lawyers newly admitted to the StateBar automatically become members of the Section for twoyears following their date of admission. Members of the StateBar who are not yet 70 years old may become members ofthe Section by paying annual dues of $20. Members 70 yearsof age or older and law school students may become mem-bers by paying annual dues of $10. Institutions and individu-als not eligible to become members of the State Bar may sub-scribe to the Journal by paying an annual $25 subscription.The subscription year begins on October 1 and is not prorat-ed for partial years. Subscription information is availablefrom the State Bar of Michigan, Journal SubscriptionService, 306 Townsend Street, Lansing, MI 48933-2083,(517) 372-9030. A limited number of copies of prior issues ofthe Journalare available beginning with Fall 1988, Volume8, Number 1, for $6 each, plus $2 for postage and handling.Copies of articles from back issues cost $7 per article. Priorissues and copies of articles from back issues may beobtained by contacting the Wayne State University LawLibrary, 468 Ferry Mall, Detroit, MI, (313) 577-3925.

Editorial Policy

The Michigan Probate and Estate Planning Journal is aimedprimarily at lawyers who devote at least a portion of theirpractice to matters dealing with wills, trusts, and estates. TheJournal endeavors to address current developments believedto be of professional interest to members and other readers.The goal of the editorial board is to print relevant articles andcolumns that are written in a readable and informative stylethat will aid lawyers in giving their clients accurate, prompt,and efficient counsel.

The editorial board of the Journal reserves the right to acceptor reject manuscripts and to condition acceptance on the revi-sion of material to conform to its editorial policies and crite-ria. Manuscripts and letters should be sent to Nancy L. Little,Managing Editor, Michigan Probate and Estate PlanningJournal, 2125 University Park Drive #250, Okemos, MI48864, (517) 706-5790, fax (517) 706-0500, e-mail [email protected].

Opinions expressed in the Journal are those of the authorsand do not necessarily reflect the views of the editorial boardor of the Probate and Estate Planning Council. It is theresponsibility of the individual lawyer to determine if adviceor comments in an article are appropriate or relevant in agiven situation. The editorial board, the Probate and EstatePlanning Council, and the State Bar of Michigan disclaim allliability resulting from comments and opinions in theJournal.

Citation Form

Issues through Volume 4, Number 3 may be cited [Vol.] MichProb & Tr LJ [Page] [Year]. Subsequent issues may be citedMichigan Prob & Est Plan J, [Issue], at [Page].

Section Web Sites

http://www.icle.org/sections/probate/

http://www.michbar.org/sections/

From the Desk of the Chairperson

John A. Scott ..........................................................................1Feature ArticlesFacilitative Mediation—A Good OptionCatherine A. Jacobs ..................................................................................2Let the Dodge Brothers Drive You Home—Using the Dodge Act andFacilitative Mediation to Resolve Probate and Trust LitigationJohn W. Allen............................................................................................6The Probate Judge Ordered Mediation—Now What?Patricia Gormely Prince and Shaheen I. Imami ......................................10The Caucus in Mediation—It’s More Than Shuttle DiplomacyTracy L. Allen ..........................................................................................14ADR: The Grand Traverse ExperienceGeorge F. Bearup ......................................................................................19

DepartmentsRecent Decisions in Michigan Probate, Trust, and Estate Planning LawHon. Phillip E. Harter ..............................................................................24Ethics, Unauthorized Practice of Law, and Image—DevelopmentsRamon F. Rolf, Jr. ....................................................................................27Probate and Estate Planning Council Q and APatricia Gormely Prince and Randall J. Soverinsky ................................28

MiscellaneousICLE Page ................................................................................................31Section Council ........................................................................................32Section Committees ..................................................................................33

Michigan Probate and Estate Planning JournalNancy L. Little, Managing Editor2125 University Park Dr. #250Okemos, MI 48864(517) 706-5790, Fax (517) 706-0500E-mail [email protected]

Editorial Board

Nancy L. Little, Managing EditorFoster, Zack & Lowe, PC, Okemos

Douglas G. ChalgianChalgian Law, PLLC, East Lansing

Hon. James S. CaseySmith, Koning, VanWagoner & Beck, PC, Portage

Amy Nehs MorrisseyWesterman & Associates, Ann Arbor

Sarah R. Pinkelman, Copy and Production EditorInstitute of Continuing Legal Education, Ann Arbor

Michigan Probate and Estate Planning JournalVol. 22 M Fall 2002 M No. 1

TABLE OF CONTENTS

As I write this, I am about toturn over the gavel to DirkHoffius of Grand Rapids aschair of the Section and conveyto him personally my fondhopes for a successful year aschair. Hoffius brings years ofexperience in probate andestate planning practice, alongwith participation in community

charities, to his upcoming role. He will need all thoseprofessional skills to conduct the meetings of theCouncil, which is sometimes like attempting to herdcats. Without wishing to steal his thunder, I know hewill continue his interest in long-range planning forthe Section and Council. All of you with an interest inthe Council’s affairs are urged to provide input to thisprocess.

The obvious role of the chair of the Section is topreside over the meetings of the Council. Less obvi-ous is that the chair conducts the business of theSection. Scarcely a week goes by when there are notfrequent demands made on the chair’s time andattention to answer questions from the State Bar,from Section members, or from members of the pub-lic on referral from the State Bar. The question mostfrequently asked is, “Can I have the list of the mem-bers of the Section and their addresses or e-mailaddresses?” The answer is a plain and simple “No.”It has been the long-standing policy of the Councilthat the list is not available except to ICLE for use inconnection with the annual probate seminar.Therefore, please know that it is not from the chair ofthis Section that brokers of low-interest mortgages,repairers of credit reports, or marketers of aluminumsiding and herbal Viagra substitutes have gotten youre-mail address.

The chair, of course, has other roles. As chair, Ipresented the position of the Section to the supremecourt on the issue of court reform. In addition, I wasappointed by the State Bar of Michigan’s president,Bruce W. Neckers, to a State Bar study committeeon court reform. The Council, over a number ofyears, has steadfastly supported the position thatMichigan citizens need probate judges and probatepersonnel to staff and preside over probate courts.There are a number of very interesting constitution-al and judicial administrative questions that are

going to require review and attention at a number oflevels. The Council and the Section can expect thatthese issues will be with us for quite awhile beforethere is resolution.

I had hoped that during my tenure, theCommittee on Special Projects (formerly SCOC-PAR) would have completed and had the newestversion of the Uniform Principal and Income Actbefore the legislature with a sponsor. We are, as Iwrite this letter, almost there. In the coming year(probably after the election), we hope the legislationwill be proposed, debated, and passed by the legis-lature and signed by the governor. Although principaland income questions are not very sexy, dealingwith trust administration involves confronting the def-initions and rules of the Uniform Principal andIncome Act in whatever format the state has adopt-ed. The 1997 Uniform Principal and Income Act is,by the Council’s reckoning, a substantial improve-ment over Michigan’s presently used earlier version.Recent IRS proposed regulations approve unitrustconcepts, and the list of states that have adopted the1997 Uniform Principal and Income Act keeps grow-ing—these versions have either the languageapproving unitrusts or the language approvingtrustee discretion in characterizing principal andincome in a unitrust manner.

Our Section has been active in many other ways.For example, under the able leadership of KennethSeavoy of Marquette, a number of new pamphletsdescribing various probate matters are being madeavailable to the members of the State Bar for distri-bution to our clients.

I now look forward to joining that band of merrypranksters consisting of ex officio members of theCouncil, such as Patricia Gormely Prince, BrianHowe, John Bos, and others of their ilk, that add tothe spicy and entertaining discussions of law, policy,and current events that make the Council meetingsso enjoyable (and unpredictable). I am sure Hoffiusjoins with me in extending a heartfelt invitation toattend the Council meetings. The list of meetingdates and places is located on the back of eachissue of the journal.

My fifteen minutes are now about up. I see thehook approaching. John A. Scott

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Fall 2002 MICHIGAN PROBATE & ESTATE PLANNING

From the Desk of the ChairpersonBy John A. Scott

In November 2001, as part of my duties aschairperson of the Ingham County BarAssociation Probate and Trust Section, JudgeR. George Economy asked me if I would puttogether a committee to develop an alterna-tive dispute resolution (ADR) plan to beadopted by the Ingham County Probate Courtpursuant to MCR 2.410.

I am embarrassed to say that before JudgeEconomy’s request, I had given little thoughtto MCR 2.410 and 2.411, to MCR 3.216, or tothe concept of facilitative mediation. Duringthe committee meetings, I learned that atleast two other attorneys in the Lansing areahad taken the required 40-hour trainingcourse to qualify as facilitative mediators ingeneral civil litigation. I immediately startedlooking for an approved course and sooncompleted the 40 hours necessary for medi-ating general civil litigation. I was soimpressed that I took a second 40-hourcourse that was part of the qualificationprocess to become a court-approved facilita-tive mediator in domestic relations.

Before the end of the first day of training, Irealized that facilitative mediation is radicallydifferent from case evaluation (which used tobe known as mediation). In case evaluation,case evaluators review the case presented bythe lawyers and recommend a settlementamount; in facilitative mediation, the mediatoris a truly neutral third party. Facilitative medi-ation also differs from the more familiar eval-uative mediation. In evaluative mediation, themediator or mediators encourage settlementby pointing out the weakness or strength of acase and by predicting what the particularjudge or jury might do. By the end of the train-ing, I had become convinced of the benefits offacilitative mediation. By the time I had com-pleted my second 40-hour course, I knew it

was important that lawyers work to make facil-itative mediation the preferred model of vari-ous ADR methods.

Facilitative mediation is not restricted tocases that are before the court (cases thathave had either a petition or a complaint filedwith the court). A lawyer would serve his or herclient well by suggesting that the client consid-er facilitative mediation from the beginning ofany dispute.

Facilitative mediation is a process by whicha neutral third party, the mediator, facilitatescommunication between the litigants andassists them in identifying issues and devel-oping various solutions in an effort to reach amutually agreeable settlement. Facilitativemediation is good for both the legal systemand the participants in the system.

In facilitative mediation, the focus is onactive and meaningful participation by the liti-gants and not just their attorneys. The litigants,through discussions guided by the facilitator,are responsible for developing and crafting aresolution to the dispute. This results in aprocess that empowers the litigants and pro-vides them with a sense of ownership in theresolution. For this reason, there is a strongerlikelihood that the parties will adhere to thesettlement reached than when a decision ismade for them by a judge, a jury, an arbitrator,or a mediator given binding authority.

The facilitative process is generally infor-mal and relaxed compared to other ADRmethods. For instance, parties in facilitativemediation are allowed to bring to resolutionissues that they would not be allowed toaddress in court, where the confines of courtrules and rules of evidence limit the informa-tion presented to reach a decision.

The confidentiality of the entire processalso factors greatly in the success of the

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Facilitative Mediation—A Good OptionBy Catherine A. Jacobs

Fall 2002MICHIGAN PROBATE & ESTATE PLANNING

process. This encourages all parties to beopen without the fear that something is beinggiven up in the case. Another significant ele-ment is the neutrality of the mediator. Thisreduces the tendency of the parties and theircounsel to posture and Agame@ the mediatoras typically happens when the third party is adecision maker rather then a mediator. Theparties are usually informed of these two ele-ments at the onset of mediation and, if neces-sary, may be reminded of the elements duringthe mediation.

Facilitative mediation is particularly appro-priate for cases in probate court. Few mattersthat come before the probate court lack anemotional element; many involve years ofangst and bitter family feuds. Fights ofteninvolve more than just dollars. In many cases,it is the emotional element that has broughtthe case to court or hindered previous settle-ment attempts. Because facilitative mediationis designed to encourage parties to resolveissues, it is particularly well-suited to this typeof conflict. It provides the parties with a non-threatening, neutral form in which to havetheir "side" heard and, once the venting iscomplete, often settlement is not far behind.Facilitative mediation is therefore a goodoption in almost all cases that come beforethe probate court. In particular, it should bethe choice in all cases where there will becontinued involvement of the parties, such asthose involving guardianships, conservator-ships, and trust administration.

In my conversations with a number oflawyers, I have discovered that there aresome serious misunderstandings about thefacilitative mediation process. These miscon-ceptions undoubtedly contribute to theselawyers= resistance to recommending facilita-tive mediation to their clients. Contrary to theunderstanding of some lawyers, it is not aprocess that eliminates involvement of thelawyers. There is no rule that the lawyershould not be present and participate. When

parties are represented by counsel, it is mypreference that the lawyers be present andparticipate in the mediation. It is the job of themediator to keep the lawyers from taking overthe mediation by posturing and advocating.The model taught in the course offered byICLE, in which one of the trainers is TracyAllen (one of the authors in this issue), alwaysincludes the presence and participation of thelawyer when parties are represented by coun-sel. Many times, the party is not willing orcomfortable in the beginning of the mediationto speak. The lawyer may speak for the party.Inevitably, as the process continues, the partybecomes more comfortable and, therefore, iswilling to speak and actively participate. It isthe encouragement of the active participationof the party that makes the facilitative media-tion unique. How many times have you heardthe complaint, “I don’t know what happened—the lawyers went into a room and worked outthe settlement”? How many times have youbeen challenged by a client who asks whetherthe mediator knew this or that? Facilitativemediation is designed to encourage full par-ticipation by the parties to resolve all issuesbetween them, to give them ownership of thesettlement they have crafted, and to result inan agreement that will have few, if any, posta-greement problems.

The goal of ADR should not simply be tosettle cases and remove them from thismonth=s docket. The goal is not only to settlecases but also to keep them from returning.This is the purpose of facilitative mediation.The participation of the parties, as well as thelawyers, is essential to this goal.

Lawyers are fearful they will lose revenueor, worse, they will lose control of their clientby encouraging the client to participate in thefacilitative mediation process. Regarding los-ing fees, it would be interesting to take a headcount of the lawyers who have had to cut hisor her fees as the case drags on and on.Sound familiar? Further, prior to a client set-


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tling his or her case at mediation, the clientwill need to be made aware of the strengthsand weaknesses of the case. This can bedone only after full discovery, research, andassessment by the lawyer. Regarding theconcern that the lawyer will lose control of theclient, the lawyer continues to participate inthe mediation process; however, the clientalso plays an active role in the mediation,something that either does not occur or hap-pens only on a limited basis under other formsof ADR. The increased participation by theclient will not cause the lawyer to lose controlof his or her client. The client will be lookingmore to the attorney for guidance because ofthe client=s expected participation.

Another misunderstanding or misconcep-tion is that this is the “touchy feely” process,and we litigators shrink from being labeled as“touchy feely.” Nothing could be further fromthe actual practice. I am still waiting for my first“touchy feely” mediation. When personal feel-ings such as “Mom loved you more” enter intothe case—which are frequently the underpin-ning of any dispute in probate court—“touchyfeely” seems as distant as the planet Mars. Attimes you feel more like a referee than a facil-itator. Frequently during training, instructorsstate that the mediator does not own the out-come, the parties do. We must keep in mindthat, likewise, lawyers do not own the outcomeand should not discourage clients from con-sidering all ADR tools available to them. Aslawyers we should welcome a process wherewinning at all costs and leaving a wake of rub-ble behind is not the ultimate goal. In facilita-tive mediation, we can use the law and legalsystem to assist clients in evaluating thestrength and weakness of their position as wellas the emotional and financial cost from stick-ing to that position all the way to trial. A clientcan probably get even in a trial for “Mom lovedyou more,” but it is doubtful that the client willbenefit from or be satisfied with the result.Facilitative mediation allows the parties to

hear the concerns of the others in a neutralenvironment. The mere acknowledgment ofsuch feelings can cause the animosity to sub-side and allow the parties to resolve disputes.They probably will not leave hugging eachother, but they will leave satisfied that theywere allowed to present their issues and par-ticipate in the resolution of issues.

A client benefits from the process becausethe client has an opportunity to present his orher full case, including those issues that arenot monetary issues, but are important, andsometimes crucial, to the client and the settle-ment of the case. The trial procedure seldomgives this opportunity. Clients who do go tocourt discover that their Aday in court@ is lessthan a great experience. Clients really do notwant to air their dirty laundry in a public court-room. To the contrary, the thought of having tobe in a courtroom and having to testify isrepulsive to most people. How many timeshave you had a client beg to be placed on thestand and be cross-examined by opposingcounsel? Facilitative mediation allows theclient to have his or her opportunity to presentall the important issues, and to do so, not onlyto a neutral party, but to his or her opponent.Many times this is the first opportunity or onlyopportunity for the client to do this.

The courts benefit from the easing of thecourt docket, both today and tomorrow, ascases are settled through the facilitative medi-ation process. Under the preexisting systemof ADR (which was called mediation but isnow known as case evaluation), the court fre-quently becomes tangled in litigation after thebase dispute is settled. The hallmark of facili-tative mediation is that the parties activelyparticipate in the process and themselves for-mulate a settlement of disputes betweenthem. The parties take ownership of the set-tlement they have crafted together, and thelikelihood of disputes over the settlement isgreatly reduced. Because the parties haveparticipated and have crafted the agreement


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together, the parties are inclined to live up toeach of their obligations.

In the course for domestic facilitative medi-ators, one of the course participants was theHonorable Bill Callahan of the Wayne CountyCircuit Court Family Division. Judge Callahantook the course because he personally want-ed to know more about the process to whichhe would be directing litigants. JudgeCallahan’s words are applicable to facilitativemediation regardless of the forum of the case.He wrote to the instructor and the participantsafter taking the facilitative mediation courseand expressed this opinion:

During the role-playing sessions, my feel-ings about the mediation process changedsignificantly, opening my mind to a new wayof bringing people with adverse positionstogether. By encouraging a cooperativeprocess, a facilitative mediator is more like-ly to achieve a more satisfactory outcomewhereby the participants can feel as if theycontrolled the outcome as opposed to athird party forcing them into an agreement.

I expect that the facilitative mediationprocess will become increasingly morepopular with both family law practitionersand judges. I also expect that there will beexponential growth in the use of this tech-nique.

. . . The working lives of attorneys will bemuch less stressful as these methodsexpand in popularity (emphasis added).

Is there anyone who would reject a processthat has the potential to reduce stress?

I am enthusiastically convinced of the ben-efits of facilitative mediation and wish to makeMichigan practitioners aware of this processand to encourage them to use it.

The authors who have volunteered to con-tribute to this issue come from different per-spectives. John Allen writes as lawyer andfacilitator, addressing the application of theDodge Act and mediation to the probate prac-tice. Patricia Gormely Prince and Shaheen

Imami give lawyers the basics on knowingwhen mediation is appropriate and preparingthemselves and their client for the process.Tracy Allen has the most experience as amediator. In addition, she has trained othersin the art of facilitative mediation. Tracy Allenhas written an informative article on caucus-ing as part of the mediation process. GeorgeBearup reports on the experience of practi-tioners and facilitators in the northern coun-ties of Grand Traverse, Antrim, and Leelanau,where facilitative mediation has been the suc-cessful norm for many years. Each authorbrings to this publication experience, quality,and variety. I encourage you to read each arti-cle and prepare for the sign of the times: facil-itative mediation.


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Catherine A. Jacobs practiceswith the firm Loomis, Ewert,Parsley, Davis and Gotting,PC, Lansing, Michigan, andconcentrates in the areas ofestate planning, estate taxa-tion, estate and trust adminis-tration, probate and probatelitigation, elder law, adoption,

family law, and transportation law. She is a for-mer member of the Council of the Probate andEstate Planning Section of the State Bar, a for-mer member of the board of directors of theIngham County Bar Association, and is thechairperson of its Probate and Trust Section.Ms. Jacobs served on the State Probate RulesCommittee. She is a current member of theState Bar of Michigan’s Judicial andProfessional Ethics Committee and Multi-disci-plinary Practices Committee. She is coeditor ofTrust Administration in Michigan (ICLE 1999 &Supps) and is a contributing author to Taxationof Estates and Trusts (ICLE 1994 & Supps) andMichigan Probate Litigation (ICLE 2d ed 2001 &Supps). Ms. Jacobs is an approved mediator forboth general civil litigation issues (probate andcircuit courts) and family law issues.

John Dodge and his brother Horace areAmerican legends. Together, they and theDodge Company built an American industrialgiant, yielding a brand still honored by thenameplate on many of the vehicles we drivetoday. Their ingenuity and hard work pro-duced a family fortune that spawned a host ofcharitable good works as well as a monumen-tal Michigan probate dispute.

At age 43, John Dodge remarried, takingMatilda Rausch as his wife, and fathered asecond family of three children. After hisdeath in 1921, his dual families and his broth-er-executor, Horace, launched into a series oflegal battles that, over the ensuing years,filled many pages in the Michigan appellatereports.1 Like the infamous case Jarndyce vJarndyce in Charles Dickens’ Bleak House,close observers could watch heirs born intoand die out of the continuing struggle. For along while, it seemed to have no end in sight.

The Dodge Act

Ultimately, the Michigan legislature provid-ed the solution. In Public Act 249 of 1921, itamended what was then the MichiganProbate Code, adding a provision that permit-ted estate heirs and legatees to agree on analteration of the distributive shares from thoseallocated by the instruments, thus allowingthe long and entangled disputes of the JohnDodge Estate finally to end. Today this statuteis MCL 700.3914 of the Estates and ProtectedIndividuals Code (EPIC); similar provisions foragreements among trust beneficiaries arenow in MCL 700.7207, the revision andreplacement for the Settlement of TrustDisputes Act. Aware of their historicalantecedents, many lawyers still refer to thesestatutory provisions as “the Dodge Act.”

Together, these statutes permit virtually

unlimited discretion for interested parties toalter their interests under a will or under thelaws of intestacy and for trust beneficiaries toresolve contests, controversies, and ques-tions of construction or interpretation concern-ing the existence, administration, or termina-tion of an irrevocable trust. Subject only to therights of creditors and taxing authorities, goodfaith and reasonable settlements must beaccepted by the court and are binding uponthe fiduciaries.

Some may think this violates the funda-mental principle of the law of wills and trusts,which holds that properly written directions ofthe testator or settlor should be followed to theletter. Others persuasively contend that theDodge Act provides a desirable, and oftennecessary, method of dispute resolution andan essential tool for the twenty-first-centuryprobate and trust practitioner. Together withfacilitative mediation, the Dodge Act alsoallows Michigan lawyers to be healers insome of the most difficult family disputes.

The History of Lawyers as Healers

The history of lawyers—even triallawyers—is not to do battle, but to prevent it.In the early twelfth century, faced withincreasing incidents of violence and localnobles assembling private armies, Henry IIsystemized the earlier experiments of hisgrandfather, Henry I, by sending his “court” (inthe form of traveling justices) on regular cir-cuits throughout his realm.2 The purpose wasto substitute peaceful resolutions of disputesfor the old method of trial by battle.3Advocates soon emerged to represent thoseappearing at the local “court,” and the traditionof Anglo-American lawyering was born. Fromthe beginning, the intended role of lawyers

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Let the Dodge Brothers Drive You Home—Using the Dodge Act andFacilitative Mediation to Resolve Probate and Trust Litigation

By John W. Allen


was to remove the sting and cleavings of trialby battle. Thus, even for litigators, historyemphasizes the lawyer’s role to resolve dis-putes, not to create them.

This duty continues today in the MichiganLawyer’s Oath, which states:

I will not counsel or maintain any suit orproceeding which shall appear to me to beunjust, nor any defense except such as Ibelieve to be honestly debatable under thelaw of the land;

I will employ for the purpose of main-taining the causes confided to me suchmeans only as are consistent with truthand honor, and will never seek to misleadthe judge or jury by any artifice or falsestatement of fact or law.4

Modern leaders of the profession havereaffirmed our duty as healers. Twenty yearsago, U.S. Supreme Court Justice WarrenBerger, frequently a candid and healthy criticof our profession, observed:

The obligation of our profession is, or haslong been thought to be, to serve as heal-ers of human conflicts. . . . Law schoolshave traditionally steeped the students inthe adversary tradition rather than in theskills of resolving conflicts.5

More Probate and Trust Contests

Probate and trust conflicts are on the rise.In its time, John Dodge’s estate had unusualcharacteristics. The testator and settlor haddied with two families. And the assets wereenough to make the fight seem worthwhile. Intwenty-first-century Michigan, these charac-teristics are not unusual. Approximately half ofall estates will involve a decedent with twofamilies. And, due to decades of healthy eco-nomics, most estates will have plenty ofassets worth fighting about. Probate and trustadversary litigation has become a growthbusiness.

But the harm to the families is fundamentaland profound. The wounding hurt of the loss

of a parent or loved one is only exacerbatedby contested, adversary proceedings. Thesting of a legal battle may sometimes yieldcatharsis but only at a substantial price, bothfinancially and emotionally.

Will contests and trust contests oftenrevolve around dissatisfaction by one or morelegatees and beneficiaries with the allocationsdictated by the terms of the will or trust. Whilethe Dodge Act provides a statutory method formodifying those allocations, it still requires, asa precondition, that the legatees and benefici-aries agree on those modifications. This iswhere facilitative mediation can play a crucialrole.

Facilitative Mediation—EssentialElements of a Different Animal

Facilitative mediation is not the mis-nomered “Michigan mediation” (now caseevaluation) that has existed under MCR2.403. In fact, case evaluation is not media-tion at all. Rather, that procedure represents aform of evaluation coupled with potentiallylarge sanctions to a rejecting party; in appro-priate cases, such evaluation may be useful inending the court contest and closing the file,but it does little to assist the parties in repair-ing the human damage caused by the dis-pute. Especially in disputes involving familymembers, we should expect and do more.

Facilitative mediation is a different animal,the structure of which may be designed by theparties themselves; resolution comes onlyfrom the parties’ agreement with each otherand is never imposed by the mediator.Successful facilitations frequently share somecommonly employed methods and character-istics. These include a skilled facilitator, ade-quate time, perseverance, and closure byenforceable agreement.

A skilled facilitative mediator does notattempt to impose any particular resolution onany one. Instead, through proven techniqueshoned by formal training and experience, the


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facilitative mediator assists the parties in find-ing their own solutions.

Facilitative mediations take time. Under theformer Michigan mediation and the currentcase evaluation of MCR 2.403, many courtsschedule case evaluations to be held on amachine like basis, frequently permitting only15 to 30 minutes per case. While even Johnand Horace Dodge might be proud of suchproduction-line efficiency, it is extremely rarethat a facilitative mediation can succeed inless than one-half to a full day and often willtake even longer. The parties need time tovent their frustrations and strong feelings andto find their own routes to what each individu-ally recognizes as a reasonable result.

Facilitation also requires perseverance.Although no one should ever be required toreach an agreement, it is reasonable that theparties and their counsel be strongly encour-aged to stay the course until the methods offacilitation are given a reasonable chance towork. The parties and their counsel oftenagree not to depart from the mediation untilfirst giving the mediator adequate notice andan opportunity to persuade them to stay.

Finally, any agreement by the partiesshould be marked by closure with an enforce-able agreement. Any agreement reached atthe mediation should be reduced to a signedwritten evidence of settlement before the par-ties depart. This makes the settlementenforceable under Michigan law, even when acourt appearance is not immediately practica-ble.6 If not preserved by an enforceable writ-ing or a recital on the court record, yester-day’s agreement can be overcome by tomor-row’s buyer’s remorse; closure is lost, and thefacilitative mediation will have been wasted.

Because facilitative mediations often con-clude after normal business hours, courtappearances are not always available whenthe parties want to memorialize their settle-ment agreement. One alternative is to draft awritten memorandum that is signed before

departure and then later converted into amore formal agreement.

Under Michigan law, a “writing” can alsoinclude an electronic recording.7 Thus, anoth-er alternative to comply with MCR 2.507(H)might include reciting the settlement termsonto a magnetic audio recording tape or disc,with the parties and attorneys signing anattestation, incorporating by reference thecontents of the tape recording. Later, the tran-script of the tape can be used as the settle-ment document or as the basis for a more for-mal writing. An example of the written evi-dence of settlement is attached as exhibit A.8

Conclusion

The high emotional stakes of family dis-putes place a special obligation on probateand trust practitioners to use nonadversaryalternatives to dispute resolution. The DodgeAct and facilitative mediation offer specialopportunities to Michigan lawyers to serve notonly their clients but also the best goals of theprofession as a healing art.


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John W. Allen is a partnerwith Varnum, Riddering,Schmidt & Howlett, LLP, inKalamazoo, Michigan. He isa Certified FacilitativeMediator, chair of the StateBar of Michigan GrievanceCommittee, and incomingchair of the American Bar

Association Tort and Insurance PracticeSection Professionalism Committee. Specialthanks and acknowledgment go to CatherineJacobs, Dirk Hoffius, and Kristen Beutler whogave valuable assistance to the preparationof this article.

Exhibit ASTATE OF MICHIGAN

_____________ COUNTY PROBATE COURT

IN THE MATTER OF:Petitioner,

v. File No.: _______________Respondent.

___________________________________/

EVIDENCE OF SETTLEMENT AGREEMENT

Facilitative Mediator: [insert name]Date: [insert date]

Pursuant to MCR 2.507(H), the undersigned parties have entered a settlement agreementaccording to the terms described in the electronic recording, a copy or transcript of which is incor-porated by reference.

This is intended to be the Evidence of Settlement required by MCR 2.507(H) and may beused by the court to enter judgment or any other appropriate order.

________________________________ __________________________________Petitioner Respondent

APPROVED: APPROVED:

________________________________ __________________________________Attorney for Petitioner Attorney for Respondent


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Notes1. In re Dodge’s Estate, 242 Mich 156, 218 NW 798(1928). Dodge v Detroit Trust Co, 300 Mich 575, 2NW2d 509 (1942).2. Theodore F. T. Plucknett, A Concise History of theCommon Law 103 (5th ed 1956).3. Thomas Pitt Taswell-Langmead, EnglishConstitutional History 58 (1960).4. Rules Concerning the State Bar of Michigan, Rule15, §3(1).

5. Justice Warren Berger, “Annual Report on the Stateof the U.S. Judiciary,” given to the American BarAssociation Annual Meeting in Chicago, Illinois, onJanuary 24, 1982, as reported by the ABA Journal 68,274–277 (March 1982).6. See MCR 2.507(H).7. See MRE 1001(1).8. Original credit for this device goes to facilitativemediator Sheldon Larky, of Bingham Farms, Michigan.

Attorneys involved in probate litigation arewell aware that contested dockets are becom-ing increasingly congested (at least in theDetroit metropolitan area). It is not uncommonfor even relatively straightforward cases totake years to resolve due to the strain on judi-cial resources. Recently, however, probatejudges are taking advantage of MCR 5.143(A)more actively in an attempt to alleviate someof this congestion and give many parties theopportunity to resolve their differences over aperiod of days rather than months or evenyears.

Specifically, MCR 5.143(A) allows the courtto “submit to mediation, case evaluation, orother alternative dispute resolution processone or more requests for relief in any contest-ed proceeding.” In practice, probate judgesusually rely on mediation (also referred to as“facilitation” by many practitioners) as thealternative dispute resolution (ADR) processof choice. Mediation is the only ADR proce-dure (outside of the often laughable processof case evaluation) for which the MichiganCourt Rules provide an explicit and ready-made procedure. This article will briefly out-line the provisions and procedures of court-ordered mediation as well as considerationsthat should be taken into account by attorneysand their clients alike.

What Is Mediation?

This is actually something of a trick ques-tion. Because of the amendments to theMichigan Court Rules that became effective inAugust 2000, the meaning of the term media-tion is no longer what it once was (a veryfamiliar concept to those of us getting older).Before the amendments, mediation meantsubmitting the issues to a panel of three medi-ators who would evaluate the facts and law

and then render an award based on the per-ceived merits of the case (or so it went in the-ory). After the amendments became effectivein August 2000, this old method of mediationwas renamed “case evaluation,” and aprocess formerly known as “facilitation” wastweaked and renamed “mediation.” It wasmuch like the reinvention of Coke Classicafter the introduction of the much-reviledabomination known as New Coke.

This article will only address mediation aswe now know it and not any of the other formsof ADR permitted by MCR 2.410, includingcase evaluation and arbitration, or the Cokedebacle for that matter. With this in mind, theidea of mediation is rather simple. In short,mediation is merely a negotiation betweentwo (or more) sides with a neutral third party(the mediator) acting as a go-between and, insome cases, a buffer. The formal definitionprovided by the Michigan Supreme Court inMCR 2.411(A)(2), however, is somewhatmore lengthy:

“Mediation” is a process in which a neutralthird party facilitates communicationbetween parties, assists in identifyingissues, and helps explore solutions to pro-mote a mutually acceptable settlement.

Mediation is not a process by which themediator acts as an arbiter in deciding who isultimately right or wrong. Moreover, the medi-ator has no power to make any binding awardor decision in favor a particular side. Thesefacts are clear from MCR 2.411(A)(2) andshould be made abundantly clear to clients sothey understand that they are not giving upany rights to have the issue decided by thecourt (or possibly a jury). In explaining theidea and process to a client, it might be help-ful for attorneys to liken a mediator to a mar-riage counselor. It is also important to tell

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The Probate Judge Ordered Mediation—Now What?By Patricia Gormely Prince and Shaheen I. Imami


clients that any statements made by eitherside throughout the mediation cannot be usedin other proceedings, including trial.

Do We Have to Go?

Unfortunately, in some instances the realitythat the mediator has no decision-makingauthority can lead to reluctance by the clientregarding participation. In fact, many clientsmight ask, “What’s the point?” Unfortunatelyfor the often petulant client, the probatejudge’s order carries with it the same forceand effect of Captain Picard’s instruction toNumber One: “Make it so.” Hence, even if youand your client and the other side considermediation to be an act of futility, it must bedone; everyone might sit on their hands andstare at the table without speaking to eachother, but it must be done.

What Happens Now?

Now that your client knows mediation isunavoidable, the issue becomes whether heor she will give the idea of mediation at leasta fair chance to work or will he or she merelysulk. Faced with the fact that over 90 percentof civil cases settle, no attorney should be shyin discussing with his or her client, in veryfrank terms, the possibility and ramificationsof settlement. Although it is true that probatelitigation is more likely to involve “principles”or personal animosity rather than other typesof civil litigation, in the end, cost and fatiguestill drive the vast majority of parties to settletheir disputes. This does not mean, however,that we should ignore factual and legal issuesthat support our client’s position. Instead, itmeans that our role as attorneys should be totemper zealous representation with well-known and anticipated practical considera-tions. Sometimes this means forsaking adrawn-out fight (and additional fees) inexchange for a more expedient (and ultimate-ly less expensive and emotionally draining)resolution. Like any other negotiation, a suc-

cessful mediation requires a win-win situation.It also requires a level of client trust, control,and focus that many attorneys find difficult toachieve given the basic nature of probate dis-putes. So, for those attorneys who view medi-ation as a genuine opportunity for resolutionand can successfully convey this to theirclients, there are three basic considerationsthat must be addressed.

The very first is selecting the mediator. Inchoosing a mediator, MCR 2.411(B) permitsthe parties to either stipulate to a particularindividual or have one chosen for them from alist of court-approved individuals. Importantly,if the parties agree on a mediator, the courtmust appoint that individual. So the goal,unlike in case evaluation, should be to findsomeone who is reasonably unbiased so nei-ther side feels shortchanged even before dis-cussing the issues. Keeping in mind the ulti-mate goal of settlement, the chosen mediatorshould also possess an ability to control whatoften can become a three-ring circus of unbri-dled emotion and visceral expressions of dis-like by the parties. Certainly, no attorney evenoffhandedly familiar with probate litigation willdisagree that postdeath disputes are amongthe most hostile, rivaled only by divorces.Clearly then, the parties’ agreement on amediator becomes quite important when thealternative is a court-appointed mediator who,although qualified on paper, might be unableor unwilling to assert the necessary calmingcontrol to move settlement discussions for-ward effectively.

The second consideration is cost (and itgoes hand in hand with the first) becausemediation can be expensive to clients. Notonly are the clients paying for the attorneys’time, but they are also incurring an hourlycharge for the mediator’s time. These costscan range from $150 per hour to more than$300 per hour. Fortunately, costs can be min-imized (relatively, of course) if the clients areserious about settlement. Regardless, the fact


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remains that a successful mediation is almostalways cheaper than even a successful trial.

The final consideration involves the client’sexpectations. It is impossible to represent aclient effectively in settlement negotiationswithout knowing the differences between dealbreakers and throwaway items. Getting to thispoint will require a serious conversation withyour client, during which you discuss thestrengths and weaknesses of your case, aswell as the things that your client can live withand without. You and your client must under-stand that this is a negotiation; its success liesin compromise.

How Do I Prepare?

This may sound like a quote from YogiBerra, but the best way to prepare is to beprepared. As the attorney, you must be veryfamiliar with the nuts and bolts of your casebecause your negotiating position is derivedfrom the strengths and weaknesses of yourcase. Fortunately, a skilled mediator will beable to consider your case from a neutralposition and give you constructive feedbackto supplement your own view.

Aside from preparedness, there are sever-al practical steps to take in getting ready formediation. First, if the mediator is someonewith whom you are not familiar, definitely talkto other attorneys to get a variety of opinions.

Second, contact the mediator and ask whattypes of materials he or she wants. More like-ly than not, the mediator will want a summarythat concisely presents the issues, facts, andlaws applicable to your case. Although youshould certainly present your case persua-sively, you should work hard to avoid sound-ing overly biased and appearing ignorant ofobvious weaknesses. Also, if the mediatordoes not specialize in probate law or estateplanning, the limited use of citations can beuseful (but avoid using string cites). Withregard to supporting documentation, ask themediator or the mediator’s staff what to

include and (sometimes more important) whatto exclude. For instance, some mediatorsmight be content with quotes from depositiontestimony, while others like to have the entiretranscript so statements can be placed in theproper context.

Third, ask the mediator whether openingstatements are expected or permitted. Eventhough a skilled and conscientious mediatorreads each party’s submitted materials, it isstill common to permit opening statements sothat each side can highlight the strengths ofhis or her case. In truth, this is probably moreimportant to the clients than it is to the attor-neys or the mediator (unless, of course, youget stuck with an ill-prepared mediator). So,prepare something short and sweet that hitsthe highest points of your case, probably nomore than five minutes.

Finally, sit down with your client and dis-cuss your negotiating strategy as well as whatthe client must have to be willing to settle thecase. Remember: the entire idea behindnegotiation and settlement is that all sidesmake concessions to get what they reallywant. It is also important that you share theoutlines of your negotiating strategy (e.g.,deal breakers versus throwaway items) withyour client in terms that he or she will findeasy to understand to avoid unnecessaryconfusion or anxiety.

The Day of Reckoning

On the day of mediation, the mediator willusually address, at the outset, all of the par-ties together as a group. The mediator willoutline his or her rules, procedures, andexpectations for the mediation and make cer-tain that everyone understands that the goalis settlement. At this point, if your client is notserious about settlement, by all means leteveryone else know so that no more time thannecessary is wasted.

After each side finishes giving an openingstatement, the mediator will normally hold


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breakout sessions to address the parties sep-arately and better identify expectations. It isduring these sessions that the mediator trulybegins to gauge the possibility and require-ments of settlement. It is also the time whenthe mediator tells you and your client what dif-ficulties you will likely face if the case goes totrial. The mediator will usually go back andforth between the parties until a settlement isreached or until it becomes obvious that theparties are too far apart in their expectations.Depending on the circumstances and thecommitment of the parties, the mediation cantake as little as an hour or as long as a day ormore.

It’s Over—Now What?

Obviously, the case either settles or it doesnot. Either way, pursuant to MCR 2.411(C)(3),the mediator is required to report the results tothe court within seven days of conclusion ofthe process. If a settlement could not bereached, the parties march on toward trial. If asettlement has been reached, it is very impor-tant to reduce the agreement to writing. Thewriting need not be a tome, but it should atleast outline what each party will get under thesettlement and the time for each party’s per-formance. If at all possible, this agreementshould be completed while still with the medi-ator. This will help prevent any buyer’sremorse that might crop up later. Further, aftera successful settlement, MCR 2.411(C)(4)requires the attorneys to “prepare and submitto the court the appropriate documents toconclude the case.”

Conclusion

Certainly, no alternative dispute resolutionmethod is foolproof and a sampling of experi-enced attorneys will undoubtedly yield a vari-ety of opinions about the effectiveness ofmediation. Yet, if approached with the properframe of mind by the parties and handled by askilled mediator, the process of mediation can

and does provide a viable alternative to trial,even for some of the ugliest cases. In suchinstances, mediation more often than notsaves everyone a great deal of time, money,and aggravation. This is confirmed by our ownexperience. (In fact, Pat Prince has not onlyhad a number of cases reach settlementthrough mediation, she has also successfullymediated several cases.)

Shaheen I. Imami, of Patricia Gormely Prince,PC, Farmington Hills, Michigan, practices inthe areas of probate litigation, real estate law,commercial law, immigration law, energy law,fiduciary income tax law, and general prac-tice. Mr. Imami is a member of the Detroit,Federal, and American Bar Associations, theState Bar of Michigan, and the AmericanImmigration Lawyers Association.


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Patricia Gormely Prince, ofPatricia Gormely Prince,PC, Farmington Hills,Michigan, practices in thearea of probate and estateplanning. She is a formerchair of the Probate andEstate Planning Section ofthe State Bar of Michigan.

Ms. Prince is a member of the WomenLawyers Association of Michigan and of theReal Property, Probate and Trust Law Sectionof the American Bar Association. She is apast managing editor of the Michigan Probateand Estate Planning Journal, is a supplementauthor for Lawyers Cooperative PublishingCompany, and contributes to several ICLEpublications.

With the adoption of MCRs 2.410 and2.411 almost two years ago, mediation for-mally arrived in Michigan. Since then,Michigan lawyers have learned to use thenew alternative dispute resolution (ADR)court rules to their advantage. They have fig-ured out how to select the appropriate media-tor. By necessity, they have changed theiradvocacy style to be effective in mediation.They are even counseling and preparing theirclients to be civil, empathetic, and persuasivein mediation. In fact, many attorneys firmlybelieve this “ADR stuff” has merit.

Imagine yourself embroiled in a continuingprobate adventure. The case has been lan-guishing in the court system for 13 months. Itoccupies an entire corner of your office.Emotions and tempers are running almost ashigh in your office as the level of mistrust per-vading the family unit. After seeing the dece-dent’s estate dissipating to cover legal fees,the judge, cognizant of the impact of “FatherTime,” orders the case to mediation. There issome skepticism about the process becausethe parties have not spoken to each other intwo years. The clients are apprehensiveabout being in the same room with eachother. Nevertheless, you have confidence.You believe the opening joint session will pro-vide fertile ground for self-expression by theparties. You believe facilitated communica-tions will drive the participants toward closure.You also know that if that doesn’t work, themediation caucus will provide a safe haven;the parties can be separated.

The mediation begins. After each partici-pant is given the opportunity to express his orher views on the case, the mediator continuesthe joint session. The mediator begins to askquestions and delve into areas that make theclients and the lawyers feel uneasy. You sayto yourself, “This family is dysfunctional. No

one has gotten along in ten years. The estatesettlement process has become an annuityfor our office. The relatives can’t agree onanything. It’s a real toss-up whether or notthey can remain in the same room with eachother. How soon can we go to caucus? Thiscase will collapse if we don’t break into a cau-cus.” The other lawyer suggests a caucus.The mediator keeps going. No caucus. Whatis happening?

The “Limited” Caucus ModelThe rules of the new game have changed

again, but perhaps no one has told thelawyers. Before the new court rules, the major-ity of Michigan mediation participants expect-ed to spend most of the mediation session inseparate rooms, away from each other. This isnot the model being taught to mediators desir-ing to do court-ordered mediation under thenew court rules. Just as there are many stylesof mediators, there are also different models ofmediation. The model many came to knowbefore the court rules has limited, if any, open-ing statements and joint sessions and reliesheavily on caucus negotiating. This approachkeeps the parties apart, thus requiring themediator to be both messenger and recepta-cle. Not surprisingly, this model is not alwayseffective or appropriate.

As mediation gains favor in the litigationarena, trends across the country are alsoadapting to change. Experience shows thatmany rewarding settlements are reached inmediation without a caucus. In fact, Harvard isteaching a mediation model that has no cau-cus. Following the global wave while remain-ing true to visionaries of the mediationprocess, Michigan has adopted a modelunder the new court rules that leaves much ofthe mediation process in the hands and con-trol of the participants. Consequently, when

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The Caucus in Mediation—It’s More Than Shuttle DiplomacyBy Tracy L. Allen


the State Court Administrative Office (SCAO)set forth its guidelines for training court-appointed mediators, it chose a mediationmodel that uses the caucus sparingly.

Some lawyers and mediators may arguethat the SCAO model is “perceived madness.”These are lawyers and mediators who mayonly know how to mediate through shuttlediplomacy. Their model of mediation ignoresthe fundamental feature and value of media-tion as a joint conflict-resolving process. Asthe Model Standards of Conduct for Mediatorsstates, mediation is “based on the principle ofself-determination.”1 The process relies on theparties working together to reach a voluntary,uncoerced agreement with the aid of a neutralthird party who guides the negotiations.

To better achieve these principles, the fun-damental philosophy that solutions “stick” bet-ter and longer when parties are jointly con-tributing to the solution design and implemen-tation is at the core of the SCAO model. Whenit comes to persuasion, personal experiencesbeat facts and logic. Personal experienceswork because they keep the parties engaged.The parties therefore pay attention andprocess the information. From personal expe-rience, participants are able to form opinionswithout depending on others with suspectmotives.2 Keeping parties physically togetherand focused on the possible solutions furtherstheir personal experiences.

In this design there also exists assump-tions and recognitions regarding basic humantendencies and simple rules of interest-basednegotiation. For disputants to reach a mutual-ly agreed-on solution, they need to beinformed of and understand the needs, inter-ests, and concerns of the opposition.Successful results in mediation do not requirethe participants to agree with each other’sneeds, but only to acknowledge them.Through this recognition, participants are bet-ter able to brainstorm and propose solutionsthat address the particular obvious and not-

so-obvious interests of each party. Thesegoals are difficult to achieve if the parties areseparated and working through the mediatoras an interpreter.

The Caucus Should Have a Purpose

What is the purpose of the caucus? Someusers of mediation have never given thisquestion a single thought. They just expect toend up in a caucus shortly after the mediationbegins. Most have never analyzed the rea-sons for, or the effectiveness of, the caucus.

Admittedly, there are many reasons forgoing to caucus, but it may surprise evensophisticated users of mediation that thereare a variety of types of caucuses. Both thetype and timing of a caucus in mediation mustbe purposeful. Early in the development ofmediation in Michigan, it was thought that thecaucus was a private meeting of the attorney,client, and mediator. It was also assumed thatonce the caucus occurred, the participantswould not return to joint session. These prac-tices frequently resulted in participants spend-ing six to ten hours of a mediation separatedfrom each other, waiting for the mediator toreturn with news and counterproposals fromthe other room. At a minimum, this pattern iscounterproductive to the notion of self-deter-mination through joint corroboration.

There is good news. This somewhat old-fashioned approach is giving way to newer,more creative uses of joint sessions and cau-cusing. The caucus can be a meeting justbetween lawyers with or without the mediator.It can be a conference between one lawyerand the mediator. Often the caucus can be ameeting of the parties with or without counsel,with or without the mediator, etc. There are nofixed rules. The use of the caucus should bebased on the perceived needs of the partici-pants at the particular moment in the process.There is no model that says joint sessionscannot occur after a caucus. In fact, theSCAO model encourages returning to joint


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session after the purpose of the caucus hasbeen achieved.

Fundamental Principles of the Caucus

The fundamental assumption in using thecaucus (when the mediator meets with onlyone counsel and client) is that a party and hisor her attorney will be more forthcoming withinformation, admissions, and concessions inthe privacy of a separate room, outside theview of the opponents. In the caucus, partiesare able to communicate concessions andfears without being vulnerable. The informa-tion shared in the privacy of a caucus may beuseful to the mediator in gaining a sense ofthe range of possible settlement options byunderstanding the “smoking gun,” the “true”feelings, and the “below-the-line” needs of theparty that may help to advance toward settle-ment. Frequently the mediator wants to askquestions or develop a line of thinking in aparty that, if done in the presence of others,might suggest a lack of neutrality. It is often inthe caucus setting where tough “reality test-ing” of the elements of a case can be exploredwithout the risk of loss to the participants. Inthese instances, the mediator times the use ofthe caucus and directs the content of the cau-cus discussion to serve the needs of the par-ties in the process.

Breaking into a separate session also pro-vides people with the opportunity to evaluatesettlement options and arguments without thepressure or influence of the opponent. Itallows time to think, to cool off, to regroup,and to respond thoughtfully, not necessarilyemotionally. In family and probate cases,where emotions often run high, particularlywith respect to nonlegal issues, the caucuscan be an opportunity for reflection on thereality of the situation vis-à-vis the logic of thedispute. The caucus also gives time torestructure a proposal and to evaluate a coun-terproposal. In short, the caucus offersbreathing room.

While the use and value of a caucuschanges case by case, one fundamental fea-ture works against mediation goals. Onceaway from the opponent, parties are muchfreer to communicate deceptively and untruth-fully. The confidential, protective cloak ofcommunication with the mediator in a caucuscreates temptation. Caucuses can become abreeding ground for deceptive techniquesbecause the risk of being caught is substan-tially reduced.3 When the mediator or oppos-ing counsel suspects information or reactionsexchanged in a caucus, a return to the jointsession may be useful to test the sincerity ofthe positions being espoused privately.

The Value of Joint Sessions

From the mediator’s perspective, joint ses-sions are purposeful. From the parties’ per-spective, they are insightful. Much can beexplored with the aid of the mediator if thetenor and safe surroundings of the joint ses-sion are effectively established in advance bythe mediator. Although the caucus is a usefultool if used wisely, it should not be the fallbackposition after opening statements when theissues are flying all over the place, the partiesare miles apart, and the mediator cannot geta grasp on an agenda. Rather, the caucuscan be used to generate new or revised set-tlement options but only when the parties arenot willing to explore them in a joint session. Itis a common mistake for new mediators toseparate into a caucus too early. As emotionsclimb and people become uncomfortable, thefleeing instinct sets in. Everyone wants to runfrom his or her uneasiness and the caucusprovides a way of escape. Often, this is pre-cisely the point in the process when the medi-ator needs to remain calm and confident, lis-tening for needs and interests and then usingthem to assist and direct the joint discussiontoward exploring the resolutions the partiesseek. Excited utterances can be very reveal-ing. Many opportunities for discussion fre-


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quently surface when the parties are forced toconfront and manage their own weaknessesand challenges in a joint session.

In the SCAO training model, mediators aretaught to identify the purpose of a caucus andthen use it to develop a specific goal. Once thegoal is accomplished, the model encouragesthe participants to return to the joint session.From the mediator’s perspective, this is quiteeconomical and effective. If a party has a rea-sonable settlement offer, why should the medi-ator be the messenger? Give credit in theprocess where credit is due. Often attorneysattempt to “game” the mediator and make himor her the scapegoat. If counsel is insistent onmaking an offer the mediator considers unpro-ductive, why should the mediator’s credibilitybe at risk? When parties are in the depths ofexchanging settlement proposals, is it efficientfor the mediator to continue shuttle diplomacy,acting merely as a courier pigeon of one side’sone percent move in response to the otherside’s one percent move? If the message issincere, even if it isn’t productive, should themediator be the courier? If a great idea is pro-posed, why should the mediator take owner-ship of it? Why not let the idea maker presentthe option?

In evaluating the different models of medi-ation as well as the different styles of media-tors, it is clear that no one model and no onemethod is a panacea. Each case has itsunique characteristics and must be dealt within an individual manner. Note, however, thatthe true spirit of mediation anticipates aprocess that belongs to the parties, not totheir lawyers and not to the mediator. Mostpsychologists opine that in family or probate-related disputes, there is an obvious need toaddress nonlegal, highly emotional issuesbefore resolution can occur. Mediators call it“venting.” Sometimes this occurs in a caucusbut experienced mediators will agree thatmuch of it occurs, and needs to, in a joint ses-sion. This ties into basic human needs to be

understood, to feel heard, to seek revenge,and to win. Once this occurs, the door to res-olution often opens widely. Much of this can-not occur if the parties are separated.

The Economy of Joint Collaboration

The mediator is also the catalyst for brain-storming settlement options. This is difficult todo if everyone is in different rooms and themediator has to go from room to room with theideas. In separate caucuses, each argument orproposal from a party may seem reasonableuntil the mediator presents it in the next roomand hears why it is not so reasonable (only tofind himself or herself subconsciously agree-ing), and then returns for round two of what willand will not work. The ping-pong game begins.This is inefficient. It is a process that “games”the mediator and often results in little beingaccomplished except increasing frustration onthe part of everyone in the mediation.

There is also the strong possibility thatsooner or later, the mediator may misinterpretor miscommunicate the message. Although itis true that the mediator acts as a filter ofinformation and processes it in a way to makea deal, sometimes he or she makes mistakes.In an effort to soften a threat or bolster anargument, the mediator delivers it inappropri-ately. Mediators who are guilty of this (and weall are) know how long it takes to unwind themistake. Using the mediator as messengerprovides a scapegoat. Parties can also hidebehind the armor of the mediator, creating afalse sense of security that sometimes mustbe shaken if the case is to settle. Before medi-ation, parties and lawyers hide behind legalarguments and theories as well as the securi-ty of the unknown. What they have beendoing throughout the course of the disputehas not gotten them to resolution, so whyshould they remain in the zone that is notdelivering the closure they may honestlyseek? The caucus also leaves some partiesfeeling as though they have stepped away


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from or gone outside of the decision-makingprocess and have lost their direct influence onthe result. They are missing out on their ownpersonal experience. Separating parties maycalm emotions, but direct participation in theresolution is frequently the critical ingredientneeded to reach settlement.

Conclusion—A New Look to Mediation

The caucus has very specific and valuableuses in mediation. It can be a communicationtool for the mediator to connect with counseland parties. It creates a risk-free environmentto challenge behavior, theories, or assump-tions. It provides time to evaluate, reevaluate,and respond. It also creates a safe harbor forsaving face and making concessions. Butmediators and lawyers must not overlook thevalue of joint sessions, nor should users of theprocess fall victim to mediators who believeshuttle diplomacy is the only mediation model.

The beauty of the mediation process is itsflexibility coupled with the mediator’s style. Itis through effective adoption of these keycharacteristics that value and successfulresults are brought to the participants. At thecore of the mediation process is the founda-tional principle that ultimately, the processand the outcome rest in the hands and heartsof the participants. It is a corroborativeprocess that requires not only their active jointparticipation but also their mutual understand-ing of positions, needs, and interests.Separating parties into caucuses not onlyslows this process, it often interferes with theparties’ perceptions. Success in mediation forMichigan mediators, attorneys, and partiesrequires all concerned to take a new look atmediation models and make conscious deci-sions about the role of a caucus. Keepingownership of the process and the settlementoptions in the joint hands of those who arerelying on the mediation process to resolvetheir conflicts is a great beginning and endingto a successful mediation process.

Notes1 The Alliance for Education in Dispute Resolution,“Model Standards of Conduct for Mediators.” Seehttp://www.ilr.cornell.edu/alliance/model_standards_of_conduct_for_m.htm for the full text.2. Gene Bedell, Three Steps to Yes—The Gentle Art ofGetting Your Way 194 (2000).3. Jeffrey Krivis, The Truth About Deception inMediation, Mediate.com (March 2002), at http://medi-ate.com/articles/krivis11.cfm.


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Tracy L. Allen, of Sommers,Schwartz, Silver & Schwartz,PC, Southfield, Michigan,practices as a full-time neu-tral commercial mediatorand arbitrator. She special-izes in corporate, business,securities, tax, employment,and real estate matters in

addition to designing strategic managementprocesses for litigators and conflict resolutionprograms for employers. Ms. Allen hasauthored numerous articles and training mate-rials on ADR in the areas of real estate, tax,securities, employment, technology, estateplanning, and business planning for a varietyof professional organizations, including theAmerican Bar Association and ICLE. A formercollege and law school professor, Ms. Allenserves on the roster of several dispute resolu-tion organizations, including state and federalcourts, the National Association of SecuritiesDealers, the American Arbitration Association,the Chicago Board Options Exchange, andthe National Center For Dispute Resolution.She is a fellow of the International Academy ofMediators and serves as the secretary/treas-urer of the organization. Ms. Allen is a contrib-utor to Michigan Residential Real EstateTransactions (ICLE 1999 & Supps) andMichigan Basic Practice Handbook (ICLE 5thed 2001 & Cum Supp). She is a trainer inICLE’s 40-hour hands-on mediator trainingprogram.

For some time now, Traverse City hasattracted the reputation of being a bit ahead ofthe curve when it comes to the implementa-tion of facilitative mediation as an effectivedispute resolution mechanism. Across thestate many attorneys and judges are puzzledabout why facilitative mediation appears towork so well in Traverse City. They ask, “Whyis Traverse City different from other parts ofMichigan when it comes to the successfulimplementation of an alternate dispute resolu-tion process?”

Dumb luck may be the short answer. A moreserious albeit highly subjective analysis sug-gests that the Grand Traverse region’s goodfortune is the product of a fortuitous confluenceof people, interests, and events, helping it toget the jump on the rest of the state in theimplementation of an effective facilitative medi-ation regime. Several interviews with lawyers,judges, and court personnel helped to explainwhy the Grand Traverse–Leelanau–Antrim BarAssociation is a step ahead in the integration offacilitative mediation as a viable option in dis-pute resolution. What follows is a brief chronol-ogy and some personal conclusions that hope-fully shed light on this apparent success.

The Conflict Resolution Service (CRS),which appeared on the Traverse City scene inthe late 1980s, was a precursor to the currentcourt-mandated facilitative mediation. TheCRS was formed by nonattorneys Tom andDarlene Shea. The Sheas had obtained train-ing in conflict resolution services to carry outtheir personal conviction of pursing peacefulsolutions to broad social problems. Theybrought their personal belief to fruition withthe creation of the CRS. In its early years, theCRS was community focused and far lessconcerned with more formal litigation-typedisputes. Instead, the CRS focused its ener-

gies and resources on smaller neighborhooddisputes like barking dogs, spite fences, loudradios, and driveway encroachments.

In the early 1990s, MaryAnne Macy movedfrom Valparaiso, Indiana, to Traverse City.Macy, also a nonattorney, brought with herexposure to the Victim OffenderReconciliation Program (VORP) used inValparaiso. Macy’s self-training as a facilitatorrose from her personal interest in theMennonite tradition of problem solving: Listento what the victim has to say and then give theaggressor the opportunity to make amends tothe victim by saying, “I’ll fix it.” Macy’s back-ground was first put to good use by heremployer, the Council of Governments, in itsCommunity Corrections Program.

Yet another critical innovator in theTraverse City ADR approach to problem solv-ing was the city attorney for Traverse City,Peter Doren. Doren quickly became involvedwith the CRS through his friends the Sheas.In his capacity as city attorney, Doren hadfirsthand exposure to the need to provide anoncourt dispute resolution mechanism todeal with small conflicts in Traverse City. In1989 Doren became president of the GrandTraverse–Leelanau–Antrim Bar Association.Shortly after Doren’s election, Doren and theSheas initiated a dialogue on behalf of theCRS with the State Court AdministrativeOffice. They successfully obtained a grant tostaff the CRS and implement its elementalcommunity dispute resolution program. This$10,000 grant from the State Bar of Michiganwas one of six throughout the state for athree-year period.

The next thread in this abbreviated historywas, and continues to be, that the GrandTraverse–Leelanau–Antrim Bar Associationhas only two circuit judges, both of whom con-

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ADR: The Grand Traverse Experience

By George F. Bearup


tinue to “ride circuit” over three counties.When Philip Rodgers was elected circuitjudge in 1990, he brought with him the con-viction, quickly borne out of necessity, of theneed for greater docket control. This casemanagement perspective prompted JudgeRodgers to explore and implement manyoptions, admittedly outside the judicial main-stream, to control the burgeoning circuit courtdocket.

By 1993 some of these disparate threadsbegan to come together. Macy applied for andbecame law clerk to Judge Rodgers. One rea-son Judge Rodgers hired Macy was becausehe planned to use her skills in conflict resolu-tion at his protracted settlement conferences,which became notorious throughout the localcircuit. Judge Rodgers’ settlement confer-ences were all day pressure cookers withclients and attorneys confined to the court-house on a day scheduled thirty days prior totrial, with trial briefs and jury instructions inhand. All of these requirements were calculat-ed to require lawyers to learn their cases, toeducate their clients, and to narrow issues, allwith the intent to extract concessions and ulti-mately induce settlements. Critical to the suc-cess of this calculated settlement conferenceprocess was the use of a trained facilitativemediator who was capable of keeping the dia-logue moving during long, protracted hours atthe courthouse.

Thomas Power was elected the second cir-cuit court judge in 1993. He brought with himmany years of experience as a state repre-sentative. Judge Power knew the importanceof compromise and consensus building inproblem solving through his many years ofdedicated service in the state legislature. Hecame to the bench with an open mind andquickly embraced Judge Rodgers’ rigorousapproach to facilitative settlement confer-ences.

The fortunate confluence of people, proce-dures, and events all contributed to the initial

impetus for ADR in the Grand Traverse area:the pseudoauthority held by Doren as pastbar president, Judge Rodgers’ decision to hirea trained facilitator as his law clerk, JudgePower’s eager support of the facilitative set-tlement conference procedure, and Tom andDarlene Shea’s passion for achieving peace-ful resolutions in nonadversarial, extra-judicialchannels.

Things began to move rapidly after 1993.By this time Macy, after 40 hours of trainingand countless hours of watching other media-tions, became a CRS facilitative mediator,along with Doren, the Sheas, and severalother publicly spirited nonattorney individuals.All of these citizens, too numerous to name,obtained their exhaustive facilitative media-tion training to serve the Traverse City com-munity through the CRS. Due to this broadcommunity involvement, the CRS continuedto enhance its local reputation as a viableoption to the courts.

In 1994 Doren formally asked the local barassociation to form an ADR subcommittee asan adjunct to the local bar’s Judicial LiaisonCommittee. Significant in this subcommittee’sformation, Macy, the Sheas, and other nonat-torneys were encouraged to attend thoseearly ADR subcommittee meetings. This sub-committee brought trained facilitators, withouta predisposition toward adversarial solutions,into contact with members of the local bar.Doren’s foresight to include nonlawyers alsosent a message to the community that thelocal bar association did not exclusivelyrestrict dispute resolution to trained lawyersand, by including lay persons on a bar sub-committee, welcomed trained mediators toshare their experiences and skills withlawyers. By 1996 Doren and Judge Rodgers per-suaded the Grand Traverse–Leelanau–AntrimBar Association to create a separate standingADR committee. Again, CRS staff and laymediators were encouraged to attend andparticipate in the ADR’s committee meetings.


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Yet another step forward was the circuitjudges’ conviction to formally begin imple-menting ADR at the early stages of some civillitigation. While lawyers regularly yelpedabout the importance of pretrial discovery, thecircuit judges held the equally strong convic-tion that many of the disputes filed in theircourt did not require extensive pretrial discov-ery as much as they required an occasion forthe litigants to come together with a trainedneutral present to help the disputants reachan accord. Consequently, by 1997, ADR refer-rals began to surface in prehearing courtorders. Judges Rodgers and Power firstbegan to suggest ADR to litigants in a specif-ic limited number of cases, e.g., those thatdealt with real estate, fence disputes, bound-ary disputes, and family contract litigation.Although it is fair to say that some membersof the local bar were dubious about the judi-cial suggestion of facilitative mediation, withan intimate bar in a small judicial circuit withonly two circuit judges, not too many lawyerswere willing to openly wrangle with the judici-ary on their suggestion. As time passed, thisjudicial encouragement of voluntary mediationevolved into a much more strongly wordedprehearing court order, where ADR was seri-ously pressed upon the lawyers and litigants.While many attorneys quietly questionedwhether the circuit judges possessed theauthority to order parties to voluntary facilita-tive mediation, many attorneys were open-minded enough to at least explore mediationto see if the process actually worked. As aresult, word began to leak back to other mem-bers of the bar that, in fact, ADR seemed towork reasonably well in limited cases thatdealt with contracts, real estate, and otherfamily disputes that were actually “hand-picked” by the circuit judges as ripe for thisoptional form of dispute resolution.

Finding mandatory ADR in the civil sched-uling order shortly after civil litigation com-menced suggested that while it was still vol-

untary, it was also expected to be used by thecircuit judges. That “institutionalized” judicialexpectation created a market for trained facil-itative mediators. In 1997, the circuit judgesfirst compiled a voluntary ADR mediatorpanel. Of significance was the judges’ require-ment that any ADR panelist had to have atleast 40 hours of training and 50 hours ofpractical mediation monitoring before he orshe would become eligible to act as an ADRfacilitator who could be paid for his or herservice. This heavy requirement of trainingand practical experience exposure investedby the mediators was equally critical to ADR’ssuccess in its early days, as it induced thelocal bar to accept facilitative mediation as aviable option. Not just anybody, no matter howfriendly or popular they were in the bar, wouldqualify as a paid court-appointed facilitativemediator.

Practical training and experience weretherefore critical to the success of the ADRplan. Judges Rodgers and Power created acredibility with their ADR panel by imposingthis criteria five years before the MichiganCourt Rules. By imposing this high level oftraining, they established integrity for the localADR plan and afforded the early facilitatorsconsiderable credibility, which in turn addedintegrity and gained the bar’s confidence inthe ADR program.

As time passed, an actual ADR plan wasput into place, years before the MichiganCourt Rules ever required the need for a localcourt ADR plan. The judges and local bar alsodeveloped a close and continuing dialoguewith federal Judge David McKeague from1997 to 1999 on the utility of a court-endorsedfacilitative mediation plan. Judge McKeaguewas instrumental in implementing a very suc-cessful ADR program for the Western Districtof Michigan; he encouraged the local bar toaggressively pursue the adoption of a compa-rable plan at the circuit court level.

As a result of this judicial activism, the local


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bar quickly learned much about ADR, includ-ing its strengths and limitations. It helped tohave 100 percent circuit court support for theADR process, which created little room for alawyer’s dissent. While some lawyers stillpouted about an anomalous judicial order thatcompelled litigants to a voluntary dispute res-olution process, the rumors of the ADR plan’ssuccess added to the open-mindedness ofmany bar leaders who followed Doren and,coupled with a genuine fear of frustrating cir-cuit judge expectations, sped the facilitativemediation process along in Traverse City.

By the time the State Bar endorsed facilita-tive mediation and the Supreme Court creat-ed its rules, the Grand Traverse circuit’s planhad been up and running for several years.Not only was ADR part of the circuit court’scivil scheduling order in nonpersonal injurycases, its effective use began to “trickle down”to the district and probate courts as well. Forexample, the CSR began to work actively withthe district court and, in effect, took over muchof the district court’s small claims court dock-et. Now when a complaint is filed in the localsmall claims court, a CRS brochure is provid-ed as a handout to the complainant to explainthe option of facilitative mediation.

There is no single easy explanation for thesuccessful evolution of facilitative mediationin the Grand Traverse region. Was it the coin-cidence of the president of the local bar asso-ciation’s friendship with the CRS founders?Was it stumbling across a small group of peo-ple who held a strong interest in peacefulsolutions to social problems? Was it JudgeRodgers’ innovative efforts at docket control?Was it Judge Rodgers’ effective use of atrained facilitative mediator as his law clerkwho succeeded at shuttle diplomacy on set-tlement conference days? Was it JudgePower’s years of experience in the state leg-islature reaching consensus that promptedhim to eagerly embrace ADR in the circuitcourt? Was it the circuit judges’ desire to

move their calendars up six to twelve monthsin a case’s life by requiring facilitative media-tion early in the process before much, if any,pretrial discovery took place? Was it the suc-cessful use of the mandatory settlement con-ference technique, akin to directed mediation,that brought litigants together in the presenceof a trained facilitative mediator at a settle-ment conference long before anyone reallyknew what ADR was all about? Was it theclear message the circuit judges sent to thelocal bar through their civil scheduling ordersthat they expected the bar to eagerly embracevoluntary facilitative mediation on behalf oftheir clients? Was it the time the circuit judgestook to “handpick” cases that were ripe forADR? Or, more cynically, was it the reality thatthere were, and continue to be, only two cir-cuit judges in the three-county circuit, both ofwhom eagerly endorsed ADR (and who prob-ably intimidated the local bar into prompt com-pliance)?

The success enjoyed by facilitative media-tion in the Traverse City region is really theproduct of a few interested citizens committedto peaceful solutions interacting with a smallbut very open-minded and enterprising judici-ary eager to explore and implement tech-niques to control dockets through creativity intheir civil scheduling orders and a generallyreceptive local bar, which resulted in the ADRprocess taking hold at a relatively early date.While many corners of the state still struggleto cope with the facilitative mediation in theamended Michigan Court Rules, almost allthe Grand Traverse–Leelanau–Antrim Barmembers have been regularly exposed tofacilitative mediation for over seven years.Concomitantly, given the judicially createddemand for ADR, a “cottage industry” oftrained mediators also developed at the locallevel, so that a large percentage of the barhas obtained the mandated training neces-sary to serve as mediators, all of which com-plemented the ADR process.


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For all of these reasons, for better orworse, ADR works in “God’s Country.”Hopefully it will soon work well in otherMichigan communities, too.

_______________________The opinions and conclusions are those ofthe author alone. Consequently, if they are inerror, they are solely attributable to theauthor.


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George F. Bearup, of Smith,Haughey, Rice & Roegge,Traverse City, Michigan,practices in the areas ofestate and retirement plan-ning, business law, anddivorce law. He is a memberof the Family Law and Laborand Employment Law

Sections of the American Bar Association aswell as the Real Property, Probate and TrustLaw Section. Mr. Bearup is also a member ofthe Family Law, Taxation, Business Law, andProbate and Estate Planning Sections of theState Bar of Michigan. He is the current chair-person for the Judicial Liaison Committee ofthe Grand Traverse–Leelanau–Antrim BarAssociation. Mr. Bearup has written severalarticles on divorce and probate and estateplanning and has served as a speaker andmoderator for numerous ICLE seminars. Heis a chapter author of Michigan RevocableGrantor Trusts (ICLE 2d ed & Supps). Mr.Bearup has been listed in The Best Lawyersin America for several years for his work inestates and trusts.

Recent Decisions inMichigan Probate, Trust,and Estate Planning Law

By Hon. Phillip E. HarterSummaries of new appellate cases, court

rules, and statutes affecting the probate courtmay be found on the Calhoun County Website at http://courts.co.calhoun.mi.us.

Holographic Will—Will—Codicil—Testamentary Intent

Korean New Hope Assembly of God vHaight (In re Estate of Smith), No 228127,2002 Mich App LEXIS 994 (July 5, 2002).

On April 20, 1999, the day following theexecution of her last will, the decedent exe-cuted a handwritten document that stated asfollows:

I want to donate $150,000 to God in orderto build a church 1999/04/20.Lee, Kilyon (deacon)

The decedent died on May 1, 1999. Thepetitioners contended that the handwrittendocument signed by the decedent was a holo-graphic will and should be probated as a cod-icil to the decedent’s existing will. The respon-dents contended that the document merelyexpressed a present intent to give money andthus is not a testamentary instrument. Theprobate court concluded that, on its face, thedocument at issue was not a testamentaryinstrument because it made no reference todeath, a prior will, its effective date, or theintent of the decedent that it become effectiveon her death; nor was it physically attached toa will. The trial court opined that extrinsic evi-dence is relevant only if the document isadmitted into probate. Concluding that thedocument was not a testamentary instrument,

the probate court denied its admission andgranted summary disposition in favor of therespondents.

The court of appeals reversed the trialcourt and remanded. In reaching this deci-sion, they decided that the Estates andProtected Individuals Code (EPIC) applies tothis case. The probate court had opined that ifMCL 700.8101(2)(b) applied, the probatecourt still would be precluded from consider-ing the act because to do so would impair anaccrual right that came into existence on thedate of the decedent’s death. According to theprobate court, the accrued right would be theright of the heirs under the decedent’s last willand testament to inherit the funds in disputepursuant to that document rather than thepurported codicil.

MCL 700.8101(2) states in pertinent part:

Except as provided elsewhere in this act,on this act’s effective date, all of the fol-lowing apply:

. . . .(b) The act applies to a proceeding in

court pending on that date or commencedafter that date regardless of the time of thedecedent’s death except to the extent thatin the opinion of the court the former pro-cedure should be made applicable in aparticular case in the interest of justice orbecause of the infeasibility of applying thisact’s procedure.

. . . .

(d) This act does not impair an accruedright or an action taken before that date ina proceeding. If a right is acquired, extin-guished, or barred upon the expiration of aprescribed period of time that commencesto run by the provision of a statute beforethis act’s effective date, the provisionremains in force with respect to that right.

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Departments


In rejecting such argument, the court ofappeals held that a devise under a will wasnot an “accrued right” under the act becauseit is not so fixed that it may not be changed.Rather, it could be changed in conjunctionwith a showing under EPIC that there is amore recent will, a partial or complete revoca-tion, an addition or alteration of the dece-dent’s will, a partial or complete revival of aformerly revoked will, or a formerly revokedportion of a will. Therefore, the rights of bene-ficiaries of the will are contingent on the pend-ing determination about whether there was acodicil and how such a codicil would affectdistribution under the will. Because the instantproceeding commenced on May 10, 1999,and final judgment was not entered until June8, 2000, this action was pending in the pro-bate court on the effective date of the statute,April 1, 2000. Thus, MCL 700.8101(2)(b) ren-ders EPIC applicable to the instant dispute.

In applying EPIC, the Court held that theprobate court was in error in refusing to admitextrinsic evidence, which denied petitionerthe opportunity to prove the requisite testa-mentary intent of the document and thusincorrectly granted summary disposition.They pointed out that MCL 700.2502(3) pro-vides, “Intent that a document constitutes atestator’s will can be established by extrinsicevidence, including, for a holographic will,portions of the document that are not in thetestator’s handwriting.”

They also opined that EPIC places the bur-den of proof on the proponent of a documentto show by clear and convincing evidence thatthe decedent intended the document to con-stitute a will or codicil pursuant to MCL700.2503.

Clearly, this case may be read to show thatthe procedural rules and rules of constructionof EPIC control proceeding pending afterApril 1, 2000. However, the final pronounce-ment concerning clear and convincing evi-dence should not be read too broadly. The

burden of clear and convincing evidenceshould only be applied to writings intended aswills, etc., under MCL 700.2503, and not othersections of EPIC.

Wrongful Death—Statute of Limitations—Personal Representative

Miller v Mercy Mem’l Hosp Corp, No118701, 2002 Mich LEXIS 1050 (June 4,2002).

The decedent underwent a CAT scan onAugust 27, 1993. It was alleged that the CATscan was misinterpreted and failed to identifya suspicious mass in the decedent’s upperhemithorax. Another CAT scan was again per-formed in December 1995 due to the dece-dent’s persistent cough and hemoptysis. Aneedle biopsy of the lung was performed inJanuary 1996, and the decedent was diag-nosed with lung cancer on January 10, 1996.The decedent died on January 24, 1996.Plaintiff was appointed personal representa-tive, and letters of authority were issuedFebruary 22, 1996. Plaintiff filed a wrongfuldeath claim on October 23, 1997.

Plaintiff’s suit was dismissed by the trialcourt granting summary disposition on statuteof limitations grounds. The court of appealsaffirmed and held that the six-month discov-ery rule for medical malpractice actions wasnot incorporated by the wrongful death savingstatute relying on Pottenbarger v Kaplan, 224Mich App 1, 568 NW2d 131 (1997). TheMichigan Supreme Court reversed the judg-ments of the trial court and the court ofappeals and overruled Pottenbarger to theextent that it held that MCL 600.5852 does notincorporate the six-month discovery rule.

In reaching its decision, the court dis-cussed two statutes: MCL 600.5838a(2) andMCL 600.5852. The pertinent provisions arein a portion of MCL 600.5838a(2):

Except as otherwise provided in this sub-section, an action involving a claim based


27

on medical malpractice may be com-menced at any time within the applicableperiod prescribed in section 5805 or sec-tions 5851 to 5856, or within 6 monthsafter the plaintiff discovers or should havediscovered the existence of the claim,whichever is later.

And MCL 600.5852:

If a person dies before the period of limita-tions has run or within 30 days after theperiod of limitations has run, an actionwhich survives by law may be commencedby the personal representative of thedeceased person at any time within 2years after letters of authority are issuedalthough the period of limitations has run.But an action shall not be brought underthis provision unless the personal repre-sentative commences it within 3 yearsafter the period of limitations has run.

In the present case, the general two-yearperiod of limitations for medical malpracticepursuant to MCL 600.5805(5) would have run,making use of the saving provision of MCL600.5852 inapplicable. However, if the limita-tion was deemed to be the six months afterdiscovery, MCL 600.5852 could be applied.Therefore, the issue was whether the six-month discovery provision in MCL600.5838a(2), applicable to medical malprac-tice claims, is incorporated in the wrongfuldeath saving statute as a “period of limitation.”

The Michigan Supreme Court held that thesix-month discovery rule is a “period of limita-tion” within the meaning of the saving statute.They stated that the plain language of MCL600.5838a(2) provides two distinct periods oflimitation: two years after the accrual of thecause of action and six months after the exis-tence of the claim was or should have beendiscovered. As an alternative to the other peri-ods of limitation, it is itself a period of limita-tion. As a saving statute, MCL 600.5852applies to whatever period of limitation is ormay be applicable in a given case, be it a pro-

fessional malpractice claim or a breach ofcontract action. In this case, the underlyingclaim was a medical malpractice actionbrought under the six-month discovery period.

Had plaintiff’s decedent not died, he wouldhave been able to bring suit for six months oruntil July 1996. Suit would have been timely, notunder MCL 600.5805(5) but under MCL600.5838a(2) and not as an exception to thetwo-year statute but as an additional period oflimitation. Letters of authority were issued onFebruary 26, 1996. Plaintiff therefore had twoyears from that date, or until February 26, 1998,to commence suit as long as suit was com-menced within three years of July 1996, thedate signifying the end of the applicable six-month limitation period. Because suit was com-menced on October 23, 1997, it was timely.


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The Honorable Phillip E.Harter is chief probate judgewith the Calhoun CountyProbate Court, Battle Creek,Michigan. Judge Harter is aformer chair of the MichiganSupreme Court Task Forceon Guardianships andConservatorships and of the

Michigan Supreme Court Bar ExaminationStaff (1976–1991). He is a member of theCalhoun County Bar Association, a fellow ofthe Michigan Bar Foundation, and a memberof the Bar of the U.S. Court of Appeals and theBar of the U.S. Supreme Court. Judge Harteris a former council member of the State Bar ofMichigan Probate and Estate PlanningSection, a former chairperson of the ProbateLaw Committee, and a former chairperson ofthe Probate Rules Committee of the MichiganProbate Judges Association. He is a frequentlecturer and author on probate topics.

Ethics, Unauthorized Practice ofLaw, and Image—Developments

Ramon F. Rolf, Jr.

Multidisciplinary Practice

In January the Representative Assemblyadopted recommendations by the State Bar ofMichigan’s Multidisciplinary Practice Committee.The proposal to allow fee sharing with non-lawyers is now pending before the MichiganSupreme Court. Under the proposal, Rule 1.5of the Michigan Rules of ProfessionalConduct (MRPC) would be modified to allowthe inclusion of nonlawyers in project bids.The client would receive one combined billfrom the law firm and nonlawyer firm. Theattorney’s duty of loyalty, duty of competentrepresentation, duty of communication, dutyof diligence, and duty of confidentiality are notcompromised under this proposal. The com-mittee did not recommend a change in therules affecting law firm ownership. Membersof a professional corporation must be in thesame profession.

Unauthorized Practice of Law—Ethics

The Attorney Disciplinary Board recentlysuspended an attorney’s license to practicefor 180 days. Case number 02-21-GA wasissued July 8, 2002, against Petoskey attor-ney A. Craig Klomparens. This is perhaps thefirst case of an attorney affiliated with a will ortrust kit seller being disciplined. The hearingpanel found that “Respondent was retained toprepare a trust and failed to review the con-tents of the trust with his clients or to under-take reasonable efforts to explain the trust tothe extent reasonably necessary to permitthem to make informed decisions regardingtheir representation.” Violation of MRPC

1.2(a), 1.4, 8.1(b), 8.4(a), and 8.4(c) werefound.

For the state bar to proceed against non-lawyers engaged in the unauthorized practiceof law and to proceed against licensed attor-neys aiding and abetting the unauthorizedpractice of law, your help is needed. If youbecome aware of situations in your communi-ty involving the unauthorized practice of lawor ethical violations by licensed Michiganattorneys, please contact the State Bar ofMichigan.

American Bar Association Reportof the Commission on

Multijurisdictional Practice

The American Bar Association proposalconcerning multijurisdictional practice is pred-icated on dynamic changes in communica-tion, transportation, and technology. Todayclients often have multistate contacts andmultistate legal matters. Among several pro-posed changes, the commission is recom-mending a change to the Model Rules ofProfessional Conduct that would allow anattorney to engage in nonlitigation work thatarises out of or is reasonably related to thelawyer’s practice in a jurisdiction in which thelawyer is admitted to practice. This wouldappear to sanction a California attorneypreparing a will or trust for a Michigan residentbut would not allow practice in a Michigancourt without association with a Michiganlawyer. Another proposal by the committeewould establish a model rule on admission bymotion to facilitate the licensing of a lawyer.However, the lawyer must be admitted topractice in another U.S. jurisdiction where thelawyer has been engaged in an active prac-tice of law for a significant period of time andis in good standing in all jurisdictions whereadmitted. Stand by—we may all be practicingin Miami Beach next year.


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Probate and Estate PlanningCouncil Q and A

Patricia Gormely Prince andRandall J. Soverinsky

Question: What types of small estate pro-ceedings are available under EPIC?

Answer: There are four small estate pro-ceedings available under EPIC. They are asfollows:

1. Cash less than $500 and clothes (§3981):

Hospitals, convalescent or nursing homes,morgues, and law enforcement agencies maydeliver cash up to $500 and clothes to an indi-vidual furnishing identification and a swornstatement that he or she is the decedent’sspouse, child, or parent and that there is noapplication or petition pending for administra-tion of the decedent’s estate.

The agency making the delivery isreleased from liability to the same extent as ifthe delivery were made to a legally qualifiedpersonal representative. In addition, theagency making delivery is not required to seeto the property’s disposition.

Note, however, that the individual who

receives the property is answerable to a per-son with a prior right and accountable to apersonal representative of the decedent’sestate appointed after delivery.

2. Small estate distributed via court order(§3982):

To qualify for this procedure, the value ofthe decedent’s gross estate minus funeraland burial expenses must be $17,000 or lessfor decedents dying in calender year 2002(the amount is indexed for inflation annually),and the petitioner must supply the court with acopy of the decedent’s funeral bill.

If the estate qualifies for this procedure, thecourt may order that the assets be turned overto the surviving spouse or, if there is no sur-viving spouse, to the decedent’s heirs.

An heir who receives property through anorder pursuant to this procedure, except for aminor child or children or a spouse who qual-ifies for allowances under the act, is responsi-ble for unsatisfied debts of the decedent up tothe amount he or she received for 63 daysafter the date of the small estate order.

3. Personal property collected via affi-davit (§3983):

This is a small estate procedure that doesnot require court involvement. It applies toresident and nonresident decedents. It alsoapplies to a Michigan domiciliary’s intangiblepersonal property wherever located.

The requirements are as follows: • There is a waiting period of 28 days after

decedent’s death. • The successor must present a death cer-

tificate and sworn affidavit meeting cer-tain requirements to a person indebted tothe decedent or having possession of tan-gible personal property or an instrumentevidencing a debt, an obligation, stock, ora choice in action belonging to the dece-dent. The State Court AdministrativeOffice has developed a standardized affi-


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Ramon F. (Fred) Rolf, Jr., isthe chair of the Section=sEthics, Unauthorized Practiceof Law, and Image Committee.He is a member of theMidland/Saginaw firm ofCurrie Kendall PolaskyMeisel, PLC. He is a pastpresident of the Northeastern

Michigan Estate Planning Council. Mr. Rolf is afellow of the American College of Trust andEstate Counsel.

davit form. However, the successor mayuse his or her own form.

• The person in possession of the aboveitem is required to deliver the tangiblepersonal property or instrument or to paythe debt to the successor. If the personrefuses to honor the affidavit, the affiantmay compel delivery in court. The persondelivering property under this section isdischarged from liability to the sameextent as if he or she dealt with a person-al representative (§3984). He or she isnot required to see to the application ofthe property and is not required to inquireinto the truth of the statements in the affi-davit.

• There must be no real property in theestate.

• The value of the entire estate, whereverlocated, net of liens and encumbrances,must not exceed $17,000 for decedentsdying in calender year 2002 (subject to anannual cost-of-living adjustment).

• There must be no application or petitionfor the appointment of a personal repre-sentative pending, and there must nothave been one granted in any jurisdiction.

• The successor must be entitled to paymentor delivery of the property. (According tothe Estates and Protected IndividualsCode with Reporter’s Commentary byJohn H. Martin, successor includes a per-son eligible to take under the exempt prop-erty and allowances provisions and a per-son succeeding to assets under intestateprovisions. It may also include a benefici-ary under an unprobated will.)

Note that the person receiving propertyunder this section is answerable and account-able for the property to a personal represen-tative of the estate or other person having asuperior right.

4. Summary administration (§3987):

An estate qualifies for this proceeding if the

value of the entire estate based on inventoryand appraisal (minus liens and encum-brances) does not exceed (1) the homesteadallowance, (2) the family allowance, (3)exempt property, (4) administration costs andexpenses, (5) reasonable funeral expenses,and (6) reasonable and necessary medicaland hospital expenses of decedent’s last ill-ness.

If the estate qualifies, the personal repre-sentative, without notifying creditors, mayimmediately distribute the estate to those enti-tled and file a closing statement pursuant toEPIC §3988.

The closing statement may be filed anytime after the estate is distributed. It is a swornstatement that must say all of the following: • To the best of the personal representa-

tive’s knowledge, the value of the estate,minus liens and encumbrances, did notexceed the homestead allowance, familyallowance, exempt property, administra-tion costs and expenses, reasonablefuneral expenses, and reasonable andnecessary medical and hospital expensesof decedent’s last illness.

• The personal representative has fullyadministered and distributed the estate.

• The personal representative has sent acopy of the closing statement to all dis-tributees and creditors or other claimantsknown to the personal representativewhose claims are neither paid nor barred.

• The personal representative has fur-nished a full written account of the estateadministration to the distributees whoseinterests are affected.

If no objections to the closing statementare filed within 28 days, a certificate of com-pletion will be issued.

If there is no action or proceeding involvingthe personal representative pending in courtone year after the closing statement is filed,the personal representative’s appointmentterminates.


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Question: How do the small estate pro-ceedings under EPIC differ from thoseavailable under the Revised Probate Code(RPC)?

Answer: As follows:

1. Cash less than $500 and clothes(§3981):

This procedure is identical to its RPC coun-terpart in §103 of the RPC, except that thedollar limit increased from $100 to $500.

2. Small estate distributed via court order(§3982):

This is the same small estate procedure asthe one in RPC §102, except that the thresh-old amount is now indexed for inflation. Inaddition, the 63-day claims period was only60 days under the RPC.

3. Personal property collected via affi-davit (§3983):

This is a new procedure with no RPC coun-terpart.

4. Summary administration (§3987):

EPIC’s summary administration proceed-ing is virtually identical to the summary admin-istration proceeding in RPC §325. Therequirements for the sworn statement provid-ed in EPIC §3988 are similar to those in RPC§326. However, RPC §326 did not include the28-day objection period provision or the provi-sion regarding the termination of the personalrepresentative’s appointment one year afterfiling the closing statement.

Patricia Gormely Prince, ofPatricia Gormely Prince,PC, Farmington Hills,Michigan, practices in thearea of probate and estateplanning. She is a formerchair of the Probate andEstate Planning Section ofthe State Bar of Michigan

and is a member of the Women LawyersAssociation of Michigan and the RealProperty, Probate and Trust Law Section ofthe American Bar Association. Ms. Prince is apast managing editor of the Michigan Probateand Estate Planning Journal. She is a supple-ment author for Lawyers CooperativePublishing Company and contributes to sev-eral ICLE publications.

Randall J. Soverinsky, ofPatricia Gormely Prince,PC, Farmington Hills,Michigan, practices in theareas of estate planning andestate administration. He isa member of the Probateand Estate Planning andReal Property Law Sections

of the State Bar of Michigan. Mr. Soverinsky isa contributor to Trust Administration inMichigan (ICLE 1999) and Michigan ProbateLitigation (ICLE 2001). He has also writtenarticles for the Michigan Bar Journal.


ICLE Products of Interest to Probate Practitioners

Advising the Older Client, Second Edition—Just SupplementedEdited by George A. Cooney and David L. ShaltzComprehensive guide for lawyers who advise older clients. Covers long-term care, health care benefits,Medicare and Medicaid eligibility, guardianships and conservatorships, the right to refuse medical treat-ment, and social security benefits.Price: $135.00 Published July 1998.ICLE Partners: $121.50 Product #: 1998552610

Michigan Model Civil Jury Instructions (formerly SJI2d)—New EditionNew edition—Purchasers of two-volume book receive access to a complete set of online instructions, usenotes, and comments. Includes probate chapter. Online version is continually updated, searchable, andallows users to download multiple instructions into a single computer file.Price: $165.00 Published June 2002.ICLE Partners: $148.50 Product #: 2002555665

Attorney Fee Agreements in Michigan, Second Edition and Disk—New EditionEdited by Emma R. StephensPractical guide to drafting and using attorney fee agreements in Michigan. Includes sample fee agreementsand commentary for various practice areas, including estate planning and estate administration. Alsoincludes chapters on ethics, practical issues in fees/billing, and collecting attorney fees. Forms are includ-ed on disk in Microsoft Word and WordPerfect (Windows only).Price: $85.00 Published May 2002.ICLE Partners: $76.50 Product #: 2002553810

Seminars

40-Hour Hands-On General Civil Case Mediator TrainingSCAO-approved 40 hours of hands-on training is a must to get on court-appointed mediator rosters. Don’tmiss this chance to get the best training available to become an official circuit court civil case mediator inall counties where you practice. Seating is limited to 30 registrants per session. Below are three separateseminars from which to choose.Dates: October 17, 18, 19, 25 & 26, 2002 Location: Plymouth Seminar #: 2002CR0425Dates: January 9, 10, 11, 24 & 25, 2003 Location: Ann Arbor Seminar #: 2003CR0424Dates: March 13, 14, 15, 28, & 29, 2003 Location: Plymouth Seminar #: 2003CR0425Price per Seminar: $1,545ICLE Partners: $1,345

1st Annual Family Law InstituteTake advantage of this opportunity to learn from the experts, meet your family law judges, FOCs, and refer-ees, and network with colleagues in family law practice. The Family Law Section and the Michigan JudicialInstitute join ICLE for the very first time to cosponsor this exciting new program in Ann Arbor this fall.Dates: October 31–November 1, 2002Location: Ann ArborGeneral: $250.00Member of cosponsoring section: $215.00ICLE Partners/MI 1st-year lawyers: $200.00Judges: Free

Browse and Purchase online at www.icle.orgCall ICLE toll-free (877) 229-4350 or fax toll-free (877) 229-4351 for information.

Books

33

Darryl M. Coon2241 Oak St.Wyandotte, MI 48192-5317

John N. Seaman1301 N. Hagadorn Rd.P.O. Box 4279East Lansing, MI 48826-4279

Julian E. Hughes176 Higman ParkBenton Harbor, MI 49022-3558

Raymond T. Huetteman, Jr.2698 Salisbury Ln.Ann Arbor, MI 48103

Joe C. Foster Jr.2125 University Park Dr. #250Okemos, MI 48864

Russell M. Paquette19701 Vernier Road, S-220Harper Woods, MI 48225

James A. Kendall6024 Eastman RoadP.O. Box 1846Midland, MI 48641-1846

James H. LoPrete1700 N. Woodward Avenue, #AP.O. Box 587Bloomfield Hills, MI 48013-0587

Everett R. Zack2125 University Park Dr. #250Okemos, MI 48864

Douglas J. Rasmussen500 Woodward Ave., Ste. 3500Detroit, MI 48226

Susan S. Westerman345 S. Division StreetAnn Arbor, MI 48104-1317

Fredric A. Sytsma333 Bridge Street, N.W.P.O. Box 352Grand Rapids, MI 49501-0352

Hon. Wendell L. Schoder251 Martha DriveBattle Creek, MI 49015-3805

Stephen W. Jones200 East Long Lake Rd., S-110Bloomfield Hills, MI 48304-2361

John E. Bos2400 Lake Lansing Rd.Lansing, MI 48912

W. Michael VanHaren111 Lyon St., N.W., #900Grand Rapids, MI 49503-2489

Robert B. Joslyn200 Maple Park Blvd., Ste. 201St. Clair Shores, MI 48081

Robert D. Brower, Jr.800 Calder Plaza BuildingGrand Rapids, MI 49503

John D. Mabley31313 Northwestern Hwy., #215Farmington Hills, MI 48334

Raymond H. Dresser, Jr.112 South Monroe StreetSturgis, MI 49091-1729

John H. Martin400 Terrace PlazaP.O. Box 900Muskegon, MI 49443-0900

Patricia Gormely Prince31300 Northwestern HighwayFarmington Hills, MI 48334

Brian V. Howe23409 Jefferson Ave., Ste. 104St. Clair Shores, MI 48080

Richard C. Lowe2125 University Park Dr., #250Okemos, MI 48864

Kenneth E. Konop840 W Long Lake Rd., Ste. 200Troy, MI 48098-6358

John A. Scott1000 S. Garfield, Ste. 3Traverse City, MI 49686

Commissioner LiaisonKimberly M. Cahill

Schoenherr & Cahill, PC24735 Van Dyke AveCenter Line, MI 48015-2314


Chairperson:Dirk C. Hoffius

333 Bridge St., NWPO Box 352Grand Rapids, MI 49501-0352

Chairperson-Elect:Henry M. Grix

38525 N. Woodward Ave., Ste. 2000Bloomfield Hills, MI 48304-2970

Vice-Chairperson:Hon. Phillip E. Harter

Calhoun County Probate Court161 E. Michigan Ave.Battle Creek, MI 49014-4005

Secretary:Michael J. McClory

1305 City-Country Bldg.Detroit, MI 48226

Treasurer:Douglas A. Mielock

313 S. Washington Sq.Lansing, MI 48933-2193

State Bar of MichiganMembers of Section Council—2002–2003

Officers

Council MembersTerm Expires 2003:Christopher L. Edgar

333 Bridge St., NW, Ste. 800 Grand Rapids, MI 49504

Robin D. Ferriby333 W. Fort St., S-2000Detroit, MI 48226

Harold G. SchuitmakerP.O. Box 520Paw Paw, MI 49079-0520

Kenneth J. Seavoy128 W. SpringMarquette, MI 49855-4608

Lauren M. Underwood200 E. Long Lake Rd.Bloomfield Hills, MI 48304-2361

Term Expires 2004:George A. Cooney, Jr.

43902 Woodward Ave., Ste.100Bloomfield Hills, MI 48302-5021

Sebastian V. Grassi, Jr. 888 W Big Beaver Rd., Ste. 750Troy, MI 48084-4765

Lynn L. Marine 615 Griswold St., Ste. 1509Detroit, MI 48226-3992

Hon. John R. Monaghan St. Clair County Probate Court201 McMorran Blvd., Rm. 2600Port Huron, MI 48060-4006

Richard A. Shapack100 Bloomfield Hills Pkwy, Ste. 200Bloomfield Hills, MI 48304-2949

Term Expires 2005:John R. Dresser

112 S. Monroe St.Sturgis, MI 49091-1729

Mark K. Harder170 College Ave., Ste. 300Holland, MI 49423-2982

Nancy L. Little2125 University Park Dr. #250Okemos, MI 48864

Ramon F. Rolf, Jr.6024 Eastman Rd.P.O. Box 1846Midland, MI 48641-1846

Andrew M. Savel400 W. 4th St.Royal Oak, MI 48067-2557

Ex Officio

34

Internal GovernanceBudget

Hon. Phillip E. Harter, ChairMichael J. McClory

BylawsLauren M. Underwood, Chair

Michael W. Irish AwardBrian V. Howe, Chair

Raymond H. Dresser, Jr.John H. MartinPatricia Gormely PrinceFredric A. Sytsma

Long-Range PlanningDirk C. Hoffius, Chair

Richard C. LoweKenneth E. Konop

NominationsBrian V. Howe, Chair

Richard C. LoweKenneth E. Konop

Relations with State BarHarold G. Schuitmaker, Chair

Catherine A. JacobsKenneth E. KonopRichard C. LoweDouglas A. MielockSusan S. Westerman

Services to Section MembersAmicus Curiae

Ramon F. Rolf, Jr., ChairMarie R. DeveneyLauren M. Underwood

Annual MeetingChristopher L. Edgar, Chair

Continuing Education & Annual Probate Seminar

Henry M. Grix, ChairSebastian V. Grassi, Jr.Catherine A. JacobsJohn H. MartinLauren M. Underwood

Ethics, Unauthorized Practice, and ImageRamon F. Rolf, Jr., Chair

Robin D. FerribyCatherine A. JacobsRichard A. ShapackTeresa Schafer Sullivan

Opinion BankHon. John R. Monaghan, Chair

Hon. Phillip E. HarterHon. Gerald J. Supina

Section JournalNancy L. Little, Editor

Hon. James S. CaseyDouglas G. Chalgian Amy Nehs Morrissey

Section PamphletsKenneth J. Seavoy, Chair

Michael J. McCloryState Bar Journal

Michael J. McClory, ChairAmy Nehs Morrissey

Specialization and CertificationRichard A. Shapack, Chair

Robin D. FerribySebastian V. Grassi, Jr.Stephen W. JonesRobert B. Joslyn

Technology & Home PageDouglas M. Mielock, Chair

Thomas KyrosJohn D. MableyRobert H. PytellSusan S. Westerman

Legislation and LobbyingHarold G. Schuitmaker, Chair

Robin D. FerribyBruce M. GroomCatherine A. JacobsJohn H. MartinDouglas A. Mielock

Practice IssuesAdvising the Fiduciary

Bruce M. Groom, ChairChristopher L. EdgarSebastian V. Grassi, Jr.Michael J. McCloryW. Ward Wilson

Charitable Giving/Exempt Organizations

Robin D. Ferriby, ChairJohn E. BosHenry M. GrixBrian V. HoweEllen Sugrue HymanCatherine A. JacobsJames E. MulvoyRichard A. ShapackTeresa Schafer Sullivan

Court Rules and FormsHon. John R. Monaghan, Chair

Hon. Phillip E. HarterMichael J. McCloryDouglas G. ChalgianHon. Gerald J. SupinaEverett R. Zack

Elder LawGeorge Cooney, Jr., Chair

Douglas G. ChalgianLynn L. Marine

Guardianships and ConservatorshipsLynn L. Marine, Chair

George Cooney, Jr.Probate Litigation & Standard JuryInstructions

Michael J. McClory, ChairDonald CarneyHon. Phillip E. HarterNancy J. LittleRichard A. ShapackHon. Gerald J. SupinaW. Ward Wilson

Transfer TaxChristopher L. Edgar, Chair

George GregoryStephen W. JonesRichard C. LoweWalter V. MarshPatricia M. OuelletteThomas F. Sweeney

Uniformity of PracticeJohn E. Bos, Chair

Hon. Phillip E. HarterHon. John R. MonaghanRobert H. PytellHon. Gerald J. Supina

Related Practice IssuesFamily Law Section Liaison

Hon. John R. MonaghanReal Property Issues & Liaison

Donal R. FranceTax Section Liaison

George GregoryTrust Institutions and Liaison with MBA

Teresa Schafer Sullivan, ChairDaniel E. CoganBruce M. Groom

Committee on Special ProjectsDouglas A. Mielock, Co-ChairLauren M. Underwood, Co-Chair

Cynthia S. AndrewsEt al (a committee of the whole)


Probate and Estate Planning Section2001–2002 Committee Assignments

33

NOTE: As this volume of the Journal reaches you, committee appointments for 2002–2003 are being finalized. The next issue will reflect the2002–2003 committees. Anyone interested in participating on a committee should contact Dirk Hoffius at Varnum, Riddering, Schmidt & Howlett,LLP • P.O. Box 352 • Grand Rapids, MI 49501-0352 • Telephone: 616-336-6807 • Fax: 616-336-7000 • E-mail: [email protected].

SCHEDULE OF MEETINGS OFTHE PROBATE AND ESTATE PLANNING SECTION

Date Place

October 19, 2002 Crowne Plaza Hotel, Grand Rapids

November 16, 2002 University Club, Lansing

December 14, 2002 University Club, Lansing

January 18, 2003 University Club, Lansing

February 15, 2003 University Club, Lansing

March 15, 2003 University Club, Lansing

May 16, 2003 Grand Traverse Resort, Traverse City

Presorted StandardU.S. POSTAGE

PAIDGRAND RAPIDS, MI

PERMIT NO. 1

WESTERN AMERICAN MAILERS, INC.720 Monroe Ave., N.W.Grand Rapids, MI 49503

jou probate & restate planningna l · 8, number 1, for $6 each, plus $2 for postage and...

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