[WSBAPT] Mandated TEDRA Mediation Fees-Source and Allocation

[David Moe]

Colleagues,
My client, while PR/Trustee, and prior to a combined ex parte/probate hearing on two separate petitions (under two separate TEDRA cause numbers) gave notice of mediation per RCW 11.96A.300(2)(b),  concerning administration of a decedent's estate and trust.  My client is one of four equal beneficiaries of the Trust/Estate under the decedent's trust instrument. The notice of mediation included a statement proposing that my client, then the PR/Trustee, should advance mediator's fees from the decedent's Trust/Estate-which holds ample liquid assets.  No objection to mediation was timely raised.  Upon the subsequent hearing, the commissioner ordered the parties to mediation under both cause numbers.  Both TEDRA petitions named all beneficiaries as "parties." My client also was named in his capacity as PR/Trustee.
RCW 11.96A.300(8) provides that "... [c]osts of the mediation, including reasonable compensation for the mediator's services, shall be borne equally by the parties.  The details of those costs and fees, including the compensation of the mediator, must be set forth in a mediation agreement between the mediator and all parties to the matter."
Opposing counsel originally represented one or more of the three beneficiaries other than my client.  OC now insists that my client and the successor PR/Trustee are the only "parties" to the mediation, and that fees be paid 50/50 by the successor PR/Trustee and my client.  OC now represents the successor PR/Trustee.  I presume OC claims the other three beneficiaries (my client's three adult stepchildren) need not be considered "parties" to the mediation for purposes of 11.96A.300(8), because they believe the successor PR knows their views and can act on their behalf.  As yet, I have no indication of agreement that the initial source of funds will be advanced from the funds of the Trust/Estate, rather than from personal funds only.  I doubt the successor PR/Trustee (not a beneficiary) will offer to or plans to advance personal funds for mediator fees.  I seek confirmation that my client as former PR/Trustee should not be required to do so either.
RCW 11.96A.300(8) provides that  "... the details of those costs and fees, including the compensation of the mediator, must be set forth in a mediation agreement between the mediator and all parties to the matter."  RCW 11.96A.030 (Definitions) provides at Subsection (5) that . . . "Party" or "parties" means each of the ... persons who has an interest in the subject of the particular proceeding...."  I submit all four beneficiaries are necessary parties to any possible TEDRA settlement agreement, and therefore estate funds should be advanced to pay the mediator, and (initially at least) allocated equally among the four beneficiaries.  Any procedural or practical suggestions?  Thanks in advance.

Dave Moe

David Moe Attorney, P.S.
Telephone:  425-432-1277
Fax:  425-432-1280
Address:
22128 SE 237th
Maple Valley, WA 98038

CONFIDENTIALITY NOTICE:   This communication is intended for the sole use of the individual and entity to whom it is addressed, and may contain information that is privileged, confidential and exempt from disclosure under applicable law.  If you have received this communication in error, please notify this firm immediately by collect call (425)-432-1277, or by reply to this communication.





-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://mailman.fsr.com/pipermail/wsbapt/attachments/20190305/835af897/attachment.html>