As an estate planner, I get calls often from disgruntled beneficiaries, concerned parents, frustrated Trustees, or distrustful siblings. Death and money don’t always bring out the best in families. But despite countless books, movies and television shows, rushing to court isn’t always (maybe ever) the best idea for families facing conflict.
Litigation, after all, is designed to create “winners” and “losers,” but family disputes are seldom winner-take-all scenarios. Worse, the very adversarial nature of litigation can fracture and disrupt family relationships to the point that after the dispute is over, those relationships may be lost, forever. And finally, litigation is both expensive (think six figures to go to trial) and public (think family secrets filed as public documents).
Mediation, a process in which the parties themselves can negotiate an agreement to a family dispute, is a real alternative to litigation for trust and estates conflicts, but not one that many people know about. Yet. (I aim to change that.)
Imagine a process where a neutral mediator works with all the parties in a conflict and in which the parties themselves can both control the process of the mediation and the outcome. Unlike in a court trial or in an arbitration proceeding, there is no powerful third party who can impose a solution on the parties to the dispute. Instead of fracturing family relationships, a skillful mediator can work with the parties to find underlying interests and concerns that can lead to understanding and resolution. And California law protects information disclosed during a mediation from being used in a subsequent trial or arbitration, should the mediation end unsuccessfully.
Twenty years ago, couples facing divorce went to court and went through adversarial, public divorce proceedings. Today mediation and collaborative practice (in which lawyers, therapists, and financial professionals work together with couples) are both well-accepted, main-stream alternatives to traditional litigation. I think that trusts and estates disputes will follow the same path and for the same reasons: most families want to settle, not enflame, disputes, be cost-effective, and keep their family business private.
I offer trust and estates mediation services for families. And I’ve just written an article, Keeping Families Out of Court, for @LAW, the magazine for the National Association of Legal Professionals, on mediation as an alternative for families emeshed in conflict over inheritances or trust administration. Click here to download a copy.