Why Mediate in Surrogate’s Court? Practical Benefits and Real Examples

Why Mediate in Surrogate’s Court? Practical Benefits and Real Examples

10.29.2025

By Emma K. Pletenycky and Madison Pracht

Surrogate’s Court controversies create the perfect environment for grieving family members – whether bloodline, marital or chosen – to escalate any existing conflict and emotional strain between them. Surrogate’s Court proceedings routinely concern the probate of wills, administration of estates and complex trust proceedings. Given the inherent familial nature of the parties to these types of matters, legal positions are often driven by longstanding dysfunction, resentment and splintered relationships rather than legitimate rule of law. The high costs and lengthy process often associated with Surrogate’s Court practice can further the probability of deepening conflict among estate litigants.

In New York, all parties to Surrogate’s Court proceedings are encouraged to participate in an alternative means of dispute resolution – including mediation, arbitration, neutral evaluation, in-court settlement practices, and summary jury trials – at the earliest opportunity available. These alternative options are becoming a more popular means to resolve trusts and estates disputes and are generally the most efficient and affordable. All proceedings heard in Surrogate’s Court are presumptively eligible for early referral to an alternative dispute resolution process (unless otherwise excluded). In most instances, mediation must start with the voluntary participation of all parties. Voluntary participation supports the integrity of the process by ensuring cooperation and strengthening the potential for a mutually agreeable resolution. However, with emotions and passions running high in Surrogate’s Court, it can be difficult to get the distributees and beneficiaries to agree to give it a chance.

Surrogate’s Court practitioners should advise their clients of all litigation options, including participating in mediation or another appropriate alternative dispute resolution process at the onset of representation. Here’s why mediation can be the best option:

Preserve Relationships

• ADR provides an environment that fosters rational dialogue and compromise, ultimately aiming to build understanding among participants.
• Neutrals can balance collaboration and the flow of communication to prevent one party from dominating or intimidating the other.
• ADR provides an opportunity for parties to air their grievances without judgment (or a court transcript memorializing it..

Save Time and Money

• Disputes could be resolved in weeks or months instead of years (or decades).
• ADR generally results in faster resolution than litigation because parties can move at their own pace and utilize additional resources beyond what may be available in the Surrogate’s Court.
• ADR tends to reduce or eliminate the likelihood of multiple court appearances and continued motion practice.

Protect Your Client’s Dignity and Values

• Sensitive and uncomfortable family matters, including personal conflicts, remain behind closed doors.
• Surrogate’s Court proceedings can be emotionally complex and financially impact multiple generations.
• Collaborate instead of litigate. It is not about who is right or wrong.

Flexibility

• Create personalized solutions that can address the client’s emotional needs and be more meaningful and enduring.
• Neutrals can help to set boundaries and navigate family dynamics like grief and distrust.
• Even if mediation does not solve the whole dispute, the parties might settle most of the issues.

The first step in the ADR process is for providers to undergo ADR training. This preparation ensures neutrals have the necessary skills to manage conflict impartially, facilitate productive communication and guide parties toward mutually agreeable resolution. Proper training ensures neutrals are not only familiar with the principles and ethics of mediation but are also capable of applying them in a wide range of complex and sensitive situations.

In the Surrogate’s Court, ADR processes are typically provided by any one or more of the surrogates, law clerks, court attorney-referees, court attorneys, court-appointed mediators or other ADR staff. In the chambers of  Surrogate Hilary Gingold, court attorneys and court attorney-referees are required to obtain commercial mediation training in accordance with Part 146 of the Rules of the Chief Administrative Judge.[1]

Part 146 requires a total of 40 training hours, including 24 hours of basic training and 16 additional hours of advanced training.[2] Training includes:

• Defining and discussing ADR processes.
• Defining and discussing the nature of conflict.
• Discussing the values and purposes underlying mediation.
• Defining and discussing the mediation process.
• Teaching mediation skills.
• The role of the mediator and other participants.
• Identifying and responding to power imbalances.
• Identifying and responding to different values and biases.
• Highlighting ethical issues and codes of conduct.
• Preparing trainees for online mediation.
• Court procedures and applicable laws.
• The impact of the case type and status of the parties.
• Ethical standards.
• Special considerations for specific case types.

In addition, six hours of continuing education training, including two hours of anti-bias training, are required every two years.[3]

Surrogate Gingold views Part 146 commercial mediation training as the most suitable for mediating Surrogate’s Court disputes. In addition to the emotional complexities associated with inheritance disputes and trust proceedings, oftentimes litigants are actively working in their family-owned businesses, meaning more than just inheritance is at stake. As such, Surrogate’s Court cannot ignore the complex commercial aspects of litigation and mediators must be able to navigate these nuanced situations, ensuring that both familial and business interests are properly addressed.

To understand how mediation works in practice, we are happy to share some illustrations of recent matters utilizing an ADR process from the chambers of Judge Gingold. These illustrations are meant to provide valuable insight to Surrogate’s Court practitioners on how disputes might be mediated in the Surrogate’s Courts – from identifying the key issues to facilitating constructive dialogue and ultimately reaching a resolution. These illustrations aim to demonstrate the practical application of mediation principles and their effectiveness in achieving equitable and constructive resolutions.

• Illustration 1

A petitioner for Limited Letters of Administration to pursue a cause of action in her mother’s estate was met with opposition when her brother – decedent’s only other distributee – filed an affidavit in opposition alleging petitioner was untrustworthy with money. The respondent’s affidavit alleged that the petitioner had not kept family members aware of their late father’s health condition prior to his death and alluded to misfeasance in his estate without any proof.

At the call of the calendar, the surrogate reminded the parties that statute of limitations issues could impact pursuing a cause of action in the decedent’s estate. Absent the appointment of an administrator, a lawsuit on behalf of the estate could not be commenced.

The respondent complained about the petitioner’s lack of communication, and expressed his concerns with her appointment as administrator when he felt she did not communicate with family members adequately. When the parties began discussing decedent’s assets, the respondent mentioned that their predeceased father’s power tools were missing and that he wanted something from his parents and had nothing because the petitioner took everything. The surrogate referred the parties to mediation with one of the court attorneys on staff to help the siblings come to a resolution over the distribution of the decedent’s personal property. The parties agreed, and the brother consented to his sister’s petition for Limited Letters of Administration. The judge reminded the parties, “You can fight about this nonsense, or you can work it out, and have a relationship.”

During the court’s informal mediation, the parties agreed that the petitioner would send her brother a rosary and clothing from his parents and the personal items their parents had kept of his throughout the years, including his birth certificate, confirmation and communion records, and sports medals. The surrogate issued an order granting Limited Letters of Administration to the sister and directing her to send the items to her brother.

Here, the resolution reached by the parties was not one that could be solved through the filing of papers. Of course, the parties could have continued to litigate the appointment of an administrator, but the basis for objections was rooted in the respondent’s frustration and confusion from the loss of his parents. Mediation allowed a remedy that focused on what the parties ultimately wanted – the specific tangible items that were important to the parties in honoring the memory of their parents and even more importantly, the preservation of family ties.

• Illustration 2

On competing petitions for Letters of Administration, a petitioner alleged to be the decedent’s sole daughter and distributee while the cross-petitioner alleged to also be decedent’s daughter and a distributee. The cross-petitioner was the decedent’s biological daughter, adopted by a different family at birth, who reconnected with the decedent and had a relationship with him later in life. She was present with him at his death.

At the call of the calendar, both parties appeared pro se. This was the first time the two of them had met. They stated they had tried to settle this dispute “in the beginning,” but it did not work out.

The law on this matter was very clear. The cross-petitioner was not a distributee, as she had been adopted out of the family, and therefore, she had no standing to be granted Letters of Administration or receive a share of decedent’s estate. Despite this obvious legal result, the surrogate directed the parties to mediation with a court attorney-referee. Ultimately, the parties agreed to a financial settlement and the cross-petitioner withdrew her petition. What was gratifying to see was that not only did the sisters resolve their issues, but they also exchanged contact information, and the cross-petitioner introduced her husband to the petitioner.

While the cross-petitioner had no standing to be granted Letters of Administration or to inherit from decedent’s estate, mediation allowed the parties to come to a resolution that honored their respective history with their father, ended any potential litigation while respecting both parties and allowed the sisters to foster a new family relationship. The parties were dealing with the grief of losing a parent, coupled with the stress of longstanding familial issues coming to a head.

Mediating Surrogate’s Court disputes is an appropriate means to create solutions in the interests of justice that resolve legal issues and address emotional concerns. Even cases which may seem simple by the letter of the law can often reflect deep emotional issues that cannot be resolved without further probing. The success of mediation is evidenced through these case illustrations, where mediation led to a productive and somewhat happy resolution. Mediation allowed the parties to move past their grief to seek solutions that might not be afforded through traditional litigation. Moreover, the parties were able to preserve their familial relationships and move forward amicably.

This article appears in a forthcoming issue of Trusts and Estates Law Journal, the publication of NYSBA’s Trusts and Estates Law Section. For more information, please visit nysba.org/trusts.

The Mediation Committee of the Trusts and Estates Law Section would like to extend special thanks to Surrogate Hilary Gingold for generously providing these case illustrations, which serve as a valuable learning tool for understanding mediation in the Surrogate’s Court context. The mediation committee would also like to acknowledge and commend Surrogate Gingold’s commitment and dedication to utilizing and promoting ADR in matters before her.

Emma K. Pletenycky is a private client associate in the New York office of Day Pitney LLP. She advises high net worth individuals and families on all aspects of trusts and estates matters, including the preparation of wills and trusts, Surrogate’s Court filings, and estate and trust administration. She also represents individual and corporate fiduciaries in contested proceedings and provides strategic guidance on complex estate planning and administration issues.

Madison Pracht is the senior law clerk for Hon. Hilary Gingold in New York County Surrogate’s Court, and a vice chair of the Trusts and Estates Law Section’s Mediation Committee.

Endnotes:

[1] 22 N.Y.C.R.R. 146.

[2] 22 N.Y.C.R.R. 146.4(b).

[3] 22 N.Y.C.R.R. 146.5.