Mediation is an interactive, structured process in which a neutral third party helps two or more parties resolve any conflict using specialized negotiation and communication techniques. All individuals or groups involved in the mediation process are encouraged to actively participate. Mediation focuses on the interests, needs, and rights of the parties. Using a variety of tools, a mediator guides the process in a constructive manner in order to help the involved parties find the optimal solution. The mediator facilitates the process by managing the interactions between the parties and facilitating open communication.
Family squabbles and disagreements occur in all families at one point or another and the occurrences of such disagreements increase in times of stress and grief. One such time is following the death of a loved one and the time comes to settle the estate. Families that were not close to begin with often become even more antagonistic towards each other. Families that were close can lash out at each other as they deal with their grief.
Consequently, the process of settling a loved one’s estate often becomes more of a battleground than anything else. Family members, who were sure that they were going to inherit an asset, no matter how big or how small, find out that the will says differently. As strong emotions start spilling over, lawyers and financial advisors are often unable to deal with the family dynamics appropriately. In these cases, bringing in a mediator is often an excellent idea.
Key Benefits of Bringing in a Mediator
- The mediation process allows for clear communication between individuals that never occurred during the deceased’s lifetime, but must now happen in order to reach an amicable settlement. The correlation between families with issues after the death of a loved one with those families who did not do any pre-death planning or communicate estate wishes is very high.
- Mediation allows the expression of emotional issues within a supportive environment. While a mediator is not a therapist, the mediation process provides an environment for emotions and problems to be safely shared among family members. Rather than allowing what are often petty issues to tear a family apart, mediation can help resolve these issues before they escalate to a complete breakdown of the remaining family unit.
- As the mediator is not a member of the legal or financial aspects of estate settlements, their resulting neutrality brings with it the power to help the involved parties see beyond the numbers to the reasons behind the disagreements. The parties involved remember that they are family and the bonds that bind them together are stronger than the squabbles over the estate.
- Families are becoming more complex all the time, with various spouses, ex-spouses, and children resulting from different marriages and relationships. The close-knit family unit is becoming rarer all the time. Within this new complicated family dynamic, the potential for conflict of interest rises exponentially. Family members may not even be willing to talk with each other. Bringing a mediator into this charged dynamic gives everyone a neutral sounding board to discuss his or her feelings and wants.
- While in the past the attorneys involved in the estate planning process knew their clients well, that is no longer the case. They are essentially strangers who simply do not understand the family dynamics and do not have the time or expertise to delve in the web of emotions. Bringing in a mediator frees up the lawyer to focus on his or her field of expertise, while the mediator focuses on his or her field of experience of being a neutral third party who uses negotiation and communication techniques to resolve conflicts.
A mediator does not represent any one individual, has no allegiances, offers no advice, makes no decisions, and comes in with no conflicts of interest. The mediator’s strength is his or her ability to talk with each person involved from the same neutral position.
While trial lawyers regularly use mediators, their use within the realm of estate settlement is relatively rare. We hope that this is something that will change as we recognize the true benefits of bringing a mediator into the field, and families can be saved before the grief and stress completely tears the family apart.