Tuesday, November 16, 2021
Typical litigation involves a symmetrical relationship in which each party pays its own attorney fees and the parties equally face the possibility of "financial exhaustion." However, in conservatorship litigation, the conservatee often must pay the attorney fees of all of the parties involved in the litigation.
This asymmetric relationship that occurs in conservatorship litigation can "subject the conservatee to collectively imposed financial ruin." According to John H. Sugiyama, "[c]onservatorship litigation thus cries out for early neutral evaluation followed by mediation."
Due to the array of burdens imposed and sources of conflict, imposition of early mediation could prove to be effective. According to Sugiyama, "[t]he unpredictability of a totally satisfactory trial result and the certainty of a reduction in any future inheritance should make relatively early mediation appealing to the parties."
In early mediation, parties could "act creatively to craft a comprehensive, confidential resolution of their conservatorship dispute" to reduce the asymmetric nature of trial-directed conservatorship litigation and create a better balance.
See John J. Sugiyama, Asymmetrical Conservatorship Litigation , American Bar Association: Probate and Property Magazine, Nov./Dec. 2021.