Introduction: These clauses were developed for inclusion in estate planning documents to help families avoid costly litigation following the death of a trustor. If you have read any of the other articles I’ve written about estate disputes, you have seen proposals about how to avoid those disputes with careful planning. But not all disputes will be avoidable. So my recommendation has been to include one of these provisions in the dispute resolution paragraphs of the trust, or will if that is the only planning document. The concept here is that, if you are making a plan, you discuss ADR with your attorney.
A mandatory provision:
Alternate Dispute Resolution: As a condition of receiving any benefit under this Trust agreement, all beneficiaries shall agree to have any dispute between them or with the Trustee resolved through alternative dispute resolution procedures, limited to a Collaborative Practice Dispute Resolution process or Mediation, before participating in any adversarial court process. Such disputes include, but are not limited to, conflict surrounding distributions of estate assets, interpretation of the Trust agreement, an accounting, or any other action of the Trustee. The Trustee and all the beneficiaries shall participate in good faith in at least one mediation session or Collaborative Practice meeting prior to submitting such dispute to any adversarial process. The reasonable expense of such alternate dispute resolution process may be paid for by the Trust Estate.
A “suggestion” (Mere precatory words):
Alternate Dispute Resolution: The Trustee and all trust beneficiaries are encouraged to use forms of Alternative Dispute Resolution in any resolving any controversy involving the Trust Estate or the Trustee and any beneficiary. The Trustee is specifically directed to engage in Mediation and/or Collaborative Practice Dispute Resolution, and is authorized, within his or her absolute discretion, to pay the reasonable expenses of the alternate dispute resolution process from the Trust Estate.