The benefits of mediating estate disputes

Jeff Fraser, BridgeTower Media Newswires

When people hear “family mediation,” they likely think of divorce. And there’s a reason that divorce mediation has become so commonplace: Parties with longstanding and complicated relationship conflict face the need to restructure their lives and create new systems and households for their children.

They have very strong emotions, which are not always well served by an adversarial legal system. The parties benefit from a process that allows communication of these complicated emotions in a setting where the negotiation is assisted and managed by one or more neutrals.

But divorce is not the only type of family conflict suitable for mediation. Estate disputes may involve conflict between adult siblings and/or a family matriarch or patriarch. The parties are often in litigation or threatening litigation.

Conflict between family members can arise over the interpretation of wills or trusts, or the valuation of the contribution of a longtime caretaker of an ill or dying parent.

Parties may disagree about perceived unfairness of disparate distributions before or after death. Was there undue influence when an adult child took a matriarch to a lawyer without others knowing about it? Siblings may find themselves threatened by a petition to partition, the dreaded doomsday remedy for co-owners of real estate.

These cases can be both legally and emotionally complex.

Given the interplay of these legal, financial and interpersonal issues, co-mediation teams with combined expertise in legal and mental health issues can help navigate the inevitable obstacles that arise in such cases.

Mediation with family members allows the parties to be creative, actively reaching agreements suited to their interests rather than waiting and accepting decisions imposed by the court.

Sessions are scheduled at the parties’ convenience and take place in a comfortable, informal setting, consistent with their very personal relationships. The process is significantly less adversarial and much less expensive than litigation.

Also, in contrast to litigation, mediation provides an important opportunity to preserve existing family relationships by identifying and reducing patterns of conflict and establishing new and more cooperative family systems.

Civil cases, too, can generate strong and heated conflict over personal injury, property damage or egregious contractual breaches, for example, but estate cases are often the culmination of a slow burn for decades, surfacing only because of the illness or death of a beloved, or estranged, family member.

Parties may be mourning the loss of unrealized expectations, like an anticipated recovery of a specific dollar amount, or some other expected outcome that they have longed for or fully expected.

Sometimes parties in estate cases are on some level mourning over not just a deceased loved one, but the end of family relationships as they know them. Or they fear the end of the conflict itself, which is at least familiar and preferable to the unknown future of post-resolution relationships with family members.

In estate mediation, the content of the conflict is expansive, encompassing decades of changing family relationships and old and new assets of all kinds. Creative solutions can be found for conflicts that appear at first to be limited to a binary result.

The parties have had lifelong relationships with their siblings and parents, which may have always been complicated, or which may become bound with conflict when issues of money and other assets arise in a legal proceeding. They may experience resentment of certain other siblings who historically dominate family discussions or decisions. They may resent the intrusion of the legal system into their personal life and private family systems.

Families in crisis are not at their best, often acting out old patterns of dysfunction. Conflicts with siblings or a parent, or both, which have long been quietly tolerated, must now be aired in the strange and foreign land of probate litigation.

The extended family can be involved, including adult children, nieces and nephews, all with different stakes in the outcome. Each relationship in the larger group may be strong and loving, or strident and conflictual, or have little to no substance.

Add to the mix the sometimes-difficult relationships parties have with their siblings’ spouses or significant others, who sometimes get a seat at the table or unofficial veto power by phone.

Family conflict can also involve difficult relationships between adult children and a parent’s second spouse.

To an adult sibling in high conflict, being the perceived “winner” or “loser” of the case can be a deeply felt need for respect, or it could be driven by revenge for perceived recent or ancient slights. These primal human emotions within families may not be well processed by the traditional adversary system.

Mediation offers an opportunity to express emotions in a safe environment that is carefully managed by a neutral mediator or mediation team. Private caucuses can tease out the private interests of each party and start a process that can make each party feel heard and validated.

The motivation to “get this behind us” is as strong as in any other case, but the path to a resolution usually involves a carefully guided descent from high emotion.

There are often “factions” within a family. Parties align themselves in usually long-held alliances based on mutual regard, power or the simple strong bonds of brothers and sisters.

It may be counterintuitive, but factions asserting their interests can sometimes help resolve a case. For instance, instead of a case with six individuals with unique perspectives, two factions within a family, empowered to negotiate for their positions, can focus the negotiation on the important contested issues.

There can also be sub-groups with secrets about asset transfers or wrongful acts that are relevant to the case, such as self-dealing by a fiduciary. These facts can be addressed in private caucuses and aired out in an attempt to settle the case, instead of being held back for leverage later in the litigation.

Of course, not all estate mediations are high-conflict affairs. Some look like a civil mediation involving business owners, with relatively cool emotions. The parties in such cases often choose mediation for its convenience and efficiency.

Many estate mediations are referred by litigators and trust and estate practitioners, who see the benefits of this method of conflict resolution, especially as compared to multi-party family litigation.

The “family lawyer” may have a professional conflict when dealing with several adverse sibling parties. Some mediations are initiated by a trusted attorney who can see conflict in the future and suggests that the family mediate one or two anticipated issues while all stakeholders are alive and competent.

In civil mediations, communication between the parties can become less than “civil,” but siblings in estate meditations sometimes lack even those usual verbal inhibitions that attend interactions in public settings. They can suddenly devolve into raw and blunt schoolyard verbal assaults. There may have been a long suppression of direct communication to avoid triggering conflict.

Sometimes, family members cannot communicate because of their emotional distance. A well-conducted mediation may allow siblings the opportunity to move past some of these painful and destructive patterns. There may be moments at the end of a mediation in which long estranged siblings laugh out loud when they confess that they cannot remember why they stopped talking to each other.

Estate mediation doesn’t have to end with the disputants planning a big reunion or a Thanksgiving dinner. To be successful, these mediations need only free up the parties from the pain that accompanies a future of depositions, trial dates, and fear and loathing in the family.


Jeff Fraser practices at Fraser & Associates in Newton. He has over 40 years of experience in private practice and has worked as a professional mediator since 1994.  Since joining The Mediation Group in 2003, he has mediated a range of civil cases and has extensive experience with cases involving divorce, estate, adult sibling and family disputes.