Mediation Works in Estate Matters
As the Scottish Bard, Robbie Bruns, said, “the best laid schemes of Mice and Men, go oft awry.” In other words, even the most carefully prepared plans can, and sometimes do, go wrong. Estate planning is no exception.
People spend many hours and thousands of dollars consulting with lawyers and other advisers to carefully draw up estate plans – some of which occasionally falter.
Family relationships can be strained by unmet expectations, sibling rivalries, poor relations between a stepparent and stepchildren, unexpected changes in health or financial positions, allegations, claims and counterclaims. For years, litigation can take centre stage. What is already a difficult experience in dealing with the death of a family member, can quickly descend into a nightmare.
The crux of these problems often stems from a lack of communication (or miscommunication) among family members and between family members and their advisers.
In both the estate planning process and the estate litigation situation, mediators are perfectly positioned to assist parties. In the planning stage this may be with the foundational work of clarifying the interests of the benefactors and their potential beneficiaries, thereby increasing the chances of overall satisfaction with the plan that is created. In the litigation stage this may be suggesting outcomes that the parties may not have considered and encouraging discussions that can lead to settlement and sometimes reconciliation.
Mediation is an informal, flexible process directed by mediators who are neutral and work for the common good of all the parties involved. Mediators do not give advice, but they do encourage the parties to reach agreement.
Mediation is recommended whenever there is litigation involved, a potential conflict of interest surfaces during the estate planning process or complex family circumstances (such as ‘blended’ family structures) exist.
Most mediation is accomplished in one day. The estate planner can then proceed with confidence that the plan constructed will meet the needs of all the parties involved. In this way, mediation can speed up the estate planning process, even though it adds another step to it. In litigation situations, mediation can save days of court preparation and hearings, with a concurrent savings in fees and costs, let alone the avoidance of the delay, inconvenience and stress of court hearings.
Because mediated solutions are normally found in considerably less time than those resulting from litigation or arbitration, the costs incurred are typically much lower.
Mediation keeps family matters private. Disputes are resolved without court intervention and public scrutiny. Moreover, details of mediation sessions cannot later be admitted in court, which fosters an environment of openness and transparency among the parties.
Ultimately, mediation is collaborative and far easier on the relationships among the parties involved than adversarial proceedings, which are combative by nature.
Mediation is a valuable tool used to reach consensus forming or fixing an estate plan and requires a knowledgeable, professional and seasoned estate
lawyer to avoid the pitfalls of litigation. If the matter has already proceeded to litigation, mediation is an incredibly useful tool in resolving the dispute.
