Mediation may be particularly attractive for Probate, Estate Planning and Elder issues. Factors that are usually present in these matters that can be addressed more adequately in mediation are:
- Parties have a need to maintain an ongoing familial relationship
- Parties want to avoid using up assets and funds with the time and expense of litigation (remember Charles Dickens’ Bleak House!)
- Parties want to keep family matters confidential
- Strong emotions are involved that court litigation would not address
- The importance of involving myriad family members and giving them the opportunity to have their say face to face and to be validated
- Assuring the the elder party gets to have input in the process and a sense of self determinatiion
- Parties can come up with creative solutions that a court would not be able to order
Often a skillful mediator can help family members address difficult issues that would not be resolved by a court ruling. If Mom left second son out of her will, all a Judge can do is decide if she was competent when she wrote the will. If she was, second son is out of luck. In the same situation, a mediation could bring all the family members together to discuss the reasons behind this clause. Maybe it was written 15 years ago when second son was sowing his wild oats and wasn’t communicating with Mom. But those conditions no longer existed by the time of Mom’s death and he and Mom renewed their relationship. Mom just never got around to changing her will. By bringing the family into mediation, the other heirs and family members could decide to share their part of Mom’s inheritance and/or make sure that second son at least gets something of sentimental value from his Mother.
There are many more situations where mediation would help families resolve these kinds of disputes. We will discuss them more in later entries.