Mediation in Today’s Estate Settlement World

Death is becoming a big topic now that baby boomers are being whipsawed by their own growing sense of mortality and the issues surrounding their dying parents. It’s like that Hemingway line about why he hated young men, “They all act like they invented sex.” Hey, there was always death around but now it’s really serious because it’s happening to us!

Ironically, even for baby boomers the estate planning and settlement process hasn’t changed in decades. It is commonly assumed that a typical middle class/upper-middle class family has a lawyer who has prepared a will and perhaps some trust instruments, a financial planner who coordinates with the lawyer to do some estate financial planning, a CPA who handles tax issues as well as an insurance specialist somewhere in the mix.

Then a family member dies and the estate settlement process swings into motion. Family members gather. There’s a funeral, some assets are sold, taxes are paid, distributions to heirs occurs. But it is never really that simple. There is just too much complexity in American family life to generalize about this deeply emotional and difficult process. You are always going to find people like the extraordinarily successful doctor who is sophisticated in every way but simply won’t write a will because he is sure it will jinx him and bring death sooner. Or the family who argues over who gets some seemingly inconsequential family heirloom while really important financial decisions aren’t adequately addressed. Or the sons and daughters who squabble over who is going to manage the family vacation home now that Daddy is gone. Deep, raw feelings well up in strange ways at times of major family transition. Often, the classic legal, financial planning and accounting team isn’t prepared to handle these issues effectively. These are moments when mediation can be an effective vehicle for unbundling complex emotional issues leading to successful estate settlement.

Let us briefly summarize some of the key benefits of the mediation process:

1. Mediation can allow for effective communication between parties that never happened during the decedent’s lifetime and needs to occur if amicable settlement is possible. There is a high correlation between families that have issues after a death event with those who haven’t done any pre-death planning or, just as important, haven’t communicated key estate wishes to children/family members.

2. Key emotional issues get aired in a supportive environment. While a mediator must be careful not to function as a therapist, the mediation process by its very nature can create an environment where complex interests can be shared. Not all issues or conflicts begin at an explosive level. Mediation allows the resolution of issues before they escalate in scope and are potentially on the road to long-term family alienation or litigation. For example, while it may seem “crazy” for siblings to be fighting over Mom’s pin cushion it may be really important to allow the parties to resolve that issue in all its dimensions before they are able to move forward with other more “important” topics.

3. The power of neutrality should not be underestimated. While a mediator should probably be reasonably familiar with key tactical elements of the legal, financial and tax planning dimensions of the estate settlement process, there is a certain power in not being a practitioner in these fields. A mediation process has the ability to rise above the sometimes narrow legal focus of these disciplines. As Peter Wolfe and Kelly Mullen say in their excellent piece, Mediation in the Probate Court, “In a will contest, interests may relate to a desire for confidentiality, for feelings of recognition, for power and status within the family, for fair treatment by other family members, for decedent acceptance, and for improved relationships. While parties’ legal positions may be in conflict, these interests may not. Dealing with these interests may help meet the parties’ needs, making it easier to resolve their legal claims, allowing a win-win solution.”(Peter Y. Wolfe and Kelly R.A. Mullen, Mediation in the Probate Court, March 2001, New Hampshire Bar Journal)

But, unfortunately, the idea of using mediation in the estate settlement process is reasonably uncommon. While there are presently initiatives in many probate courts to incorporate mediation as a formal conflict resolution option, the real gatekeepers, the lawyers, financial planners and CPA’s who traditionally get the first call and help direct families through the estate settlement maze, rarely suggest mediation to clients. It is a surprising “barrier” given that estate settlement is really just another “major family life change” in some ways no different from divorce – a field in which mediation is an effective mainstream tool for families in a transition crisis. Broadening society’s concept of what constitutes a professional estate settlement team is thus a classic marketing problem. To achieve access to relevant cases and acceptance by other professionals in this field is exactly like the process mediation practitioners and promoters have applied to every other acceptance challenge. It requires many champions working on many fronts to be successful. We must:

1) Convince entrenched professionals, the lawyers, financial planners and CPA’s, that mediation is not a threat but a positive team option that can help make their job easier and not diminish their billable hours. 2) Continue to work with probate courts to include mediation as a formal court approved option that judges understand and embrace. Presently only a few courts have formal programs like the one New Hampshire is introducing this year on a statewide basis.

3) Continue general marketing to the public by word of mouth, print articles, other media pieces and professional association support.

                       

Rikk Larsen

Rikk Larsen is a founding partner of Elder Decisions where he is a mediator, trainer and conflict coach. He has created and presented conflict skills trainings to eldercare professionals from around New England. Rikk served on a Subcommittee for the Massachusetts Trial Courts Standing Committee on Dispute Resolution. He co-presented Using Mediation in… MORE >