Author Archives: Dianna Flannery

Mediation and tax – there really can be a resolution

In Quebec a non-profit organization called “Tax Mediation Association”, founded by five woman provides mediation services for provincial tax disputes.  The philosophy behind the organization is that it promotes not only an alternative way to resolve tax disputes but users find peace at the end of the day when their particular tax issue is resolved.

And the new service seems to be working.  One distraught taxpayer threatened suicide feeling completely overwhelmed by their tax situation.  The individual is a farmer deeply in debt who had lost his appeal at court and threatened to kill himself.  The service stepped in and created a compromise that both parties could accept.  The impact of the settlement is obvious –  it saved a life and promoted peace.  The objective of the project seems to be truly being met.

The project has included 25 participants and so far appears to be a success.  It was designed to deal with tax claims that have a significant impact on small business and individuals.  The project has brought civility and fairness to the system which seemed to lacking.  It also has brought with it efficiency to a overburdened provincial tax system in Quebec.

The projects illustrates once again how mediation can provide a much better solution for all involved.

Christmas, Family Dynamics and lingering estate problems a recipe for litigation

During the Christmas season we are supposed to look forward to family gatherings, enjoy the company of loved ones and share stories from Christmas past.  However, for many the season does not paint such a lovely picture.  Many have no loved ones or if they do the history of disagreements has gotten the better of them and they no longer enjoy seeing family members.  This is even more so where a parent may have passed and children are fighting over an estate.  The family may have chosen to go the litigation route.  Nothing puts a damper on Christmas like having to deal with festering issues at court.

This year if you find yourself in this situation try to think whether an estate dispute could be settled by mediation.  All parties would have to agree to the arrangement but at this time of the year maybe families are more in a reconciliatory mood.  It may be that other families feel drained from fighting and are looking for some way to end the dispute and move on.  Some may even dream of having a Christmas in the future where family members can once again gather around the tree or celebrate the season in what ever manner lines up with their religious or ethnic traditions.

If you find yourself longing for peace this holiday season maybe take the first step and suggest to family members that there is an alternative way to deal with the estate dispute.  A process which moves the family off positions and onto moving forward can provide a path to reconciliation.  Maybe the dream of peace whatever your family situation is can be a reality. This Christmas season try to keep an open mind, start the dialogue and take the first steps.  You may find that Christmas 2017 allows you to peacefully enjoy the season surrounded by your loved ones.

Moving Forward

Estate disputes often arise because a certain history exists amongst family members. The elephant in the room is how do we deal with years of events, emotions and feelings when dealing with a dispute? In that regard mediation is no different than family law.

To truly create a safe environment for resolving disputes a mediator must skillfully understand and manage from the present and then nudge forward with the issues. This moves parties from looking backwards and then being stuck because of it.  While an estate mediator can allow venting and looping back this cannot sabotage the process and stymie moving forward.  Human relationships are complex and the goal is to unravel that complexity to allow open discussion.

What are some of the things that make parties look backwards?  There may be many things.  Below are a sample of some of them.

  1. A history of poor communication amongst siblings or parents;
  2. Perceived favouritism by one parent toward one or more children;
  3. One or two children caring for an elderly parent and no other siblings;
  4. Unequal division of family gifts;
  5. A lack of family support in the family unit.

The list is not exhaustive.  However it hits on a number of key issues that seem to arise most frequently in estate disputes.

Can you think of ways to deal with these issues?  The mediator must unravel these types of questions in order to get communication flowing.  Depending on mediation style, an estate mediator may reach out prior to the mediation to have a better understanding of these potential issues.  For your part, if you are attending a mediation think about your family dynamics and what may present a roadblock to resolving a family dispute.  It will help you to face these challenges head on.  An experienced estate mediator will make every attempt to use a process so that these types of issues do not create an impasse.  Being aware of this approach ahead of time will help the process move better.

Your final exit will it be smooth or bumpy?

In the last blog we talked about Death Cafes and how they provide an informal setting to discuss the difficult subject of how to approach death. Death is one situation where we really cannot control the outcome. But we can certainly do planning that will provide a road map for our loved ones or friends.

How do you approach that planning? Do you first go to your accountant and/or lawyer and come up with a plan? That is certainly one way to get the ball rolling but what about some of those softer issues. The lawyers and accountants can provide the technical expertise but this may still lead to family riffs. Is it better to talk out these issues with family members in the room? Of course, but communication is not easy for everyone. Without any plan you pretty much guarantee conflict will arise. But putting a plan in place certainly helps to circumvent the chance of family fighting.

A stronger approach to avoid conflict may be to involve those that will most likely be impacted by your estate plan in the planning discussions. An estate mediator can help you with getting started on a process. They understand and know the type of issues that can become contentious. They can help implement a plan that family members can understand and accept while they are in a period of grief. The less surprise the better. So think about your plan first by considering who is most impacted when you die. Get the proper accounting and legal advice but make sure you take the time to discuss your plan with your family and involve them. You may just walk away feeling like you can control your final exit.

Death Cafe

Planning for death is not easy to talk about and when it comes to parents and kids …  well let’s just say that conversation is often left for the back burner. But in the US an informal group has decided to take on the difficult topic by setting up a “Death Café”. The thinking is that it might be easier to talk about planning for death in an informal setting. Anyone is invited to attend and it is an open forum.

Participants of the Death Café can be newcomers who are just trying to deal with estate planning matters or those who have attended before. Topics are picked by attendees and can vary from how to divide up your estate, to dealing with difficult family members to elderly parents. There is no real structure to the conversation but those who attend find it easier to approach difficult issues by knowing others in the room face the same challenges.

Some Death Café participants have been able to encourage family members to attend so that they too can raise issues. The informal setting helps provide a level of comfort to ask questions.

Aging and the issues that go along with it are not for the faint of heart. It is tough to think about downsizing and selling a family home and even more challenging to think about the fact that one day mom, dad or even you may be living in a long term care facility. But the reality is we all have to face these types issues.

Open communication is the best approach to estate planning issues but easier said than done. The Death Café looks like they are on to something allowing for open communication on any estate planning topic in an informal setting. It is definitely a fresh approach to a hard life issue.

Is mediation a viable option for estate disputes?

Deciding whether to go to court or to mediate is a big decision. Court is not for everyone but the alternative – mediation requires a real desire to resolve all or some of the issues. It takes hard work and the more parties involved the more difficult it becomes.  This is often the case in estate disputes; there… Read More

What is the difference between family and estate mediation?

There are times when family law issues and estate issues intersect.  Mediation may be one dispute resolution mechanism that can address both when this occurs. Family mediation usually arises when parties have separated and are disputing over matrimonial property, support or custody issues.  These problems however may carry over if one of the spouses dies and… Read More

Understanding the mediator, their process and where you fit in

Not all mediators are created equal or trained in the same way. Each mediator will have their own particular style of mediation. You can pick a mediator from a roster list that might be available at your court house or do some research and hire a mediator privately. No matter what mediator you select you… Read More

Thinking about how to use dispute resolution in the business context

Critically thinking about how to resolve disputes should be an important part of our  lives. In our daily activities we come across lots of conflict which we have to resolve sometimes very quickly. Many work places have a dispute resolution mechanism available to deal with employee disputes. For those that own their own business, thinking about how… Read More

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