A brother sued his sister over the accounting of assets when the sister held the power of attorney for their mother as her health was failing. After a four-hour mediation, the case was settled and the siblings were on speaking terms again. Sound familiar? Similar situation in your family? Mediation is more frequently being used for disputes about estates, trusts, and other end-of-life issues. This article is the first in a series that will focus on how mediation can help keep families from going through an expensive and challenging litigation process for such emotionally charged issues. We will also review situations where litigation may be the best alternative. In August 2016, the book Mediation for Estate Planners: Managing Family Conflict was released by the American Bar Association. I wrote the chapter “A Mediator’s Perspective: Situations Mediators May Face”. This blog series will feature some of the salient points in this book.
Why Do Estates Become Contested?
Estate and trust disputes are as varied as the families who are involved in them. These situations are extremely emotionally charged, as the dispute may involve disinherited children, sibling rivalries, contentious relationships, or blended families with second or third marriages. Another situation that is becoming increasingly common and often the cause of disputes is when an adult child or other family member becomes the caregiver for a parent and takes over responsibility for the parent’s finances.
Old sibling rivalries are the root cause of many of these disputes and it sometimes plays out in a tug of war over tangible personal property, i.e., “mom or dad’s stuff”. In-laws may also raise concerns that turn into arguments. As professor Jay Folberg wrote in an article, “Disputes surface that are usually less about malevolence than about conflicting feelings, misunderstandings of intent, divergent expectations, resistance to change or unspoken fears.”
According to a Gallup survey in 2016, only 44 percent of all American adults have a legal will or other estate planning documents. Without any estate planning documents, the intestate laws of each state will govern the distribution of the decedent’s assets. These laws are based on presumptions about family relationships and a natural order of inheritance. Thus, there exists the potential for a high number of estates to become contested because the decedent never articulated their wishes.
How a Mediator Helps You
As a mediator, my goal is to help families resolve these issues with a minimum of pain and tears and less money than a full blown contested hearing or trial. The chart below demonstrates the advantages of mediation over litigation. Estate litigation can be very costly. In addition, it is a public process. Your neighbor can walk in and learn your personal business.
Direct communication between parties often leads to a settlement. By facilitating direct communication between parties, the neutral mediator helps resentments or past disputes come to the surface and helps both parties work toward a resolution. Sometimes lawsuits are filed simply because siblings don’t trust each other and haven’t communicated directly about the issues. One sibling may believe that the other siblings have mishandled a parent’s assets or asserted undue influence on a parent who no longer has their full mental faculties. In mediation, family members can clarify their respective understandings of what they believe their relative intended.
Mediation may also help in addressing the emotional dilemmas surrounding the dispute. Litigation pits one party against another and can lead to resentment, anger, blame, and fractured or broken relationships among family members. Mediation, on the other hand, allows for the acknowledgment of those feelings with the goal of getting all parties to recognize and address the emotional issues that led to the disagreement and then reach a resolution. Families are far more likely to come out of mediation with relationships intact and a palatable resolution in place than they are to emerge from litigation with the same things.
Next month: End of life issues and family meetings.
Ellen F. Kandell is a certified professional mediator and attorney with over 30 years of public and private sector experience. Ellen is certified by the International Mediation Institute. She became chair of MCDR’s certification committee this year. She provides mediation, group facilitation and training to diverse, national clients. Get in touch with her via email, LinkedIn, Twitter, or give her a call at 301-588-5390.