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.
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.
- A history of poor communication amongst siblings or parents;
- Perceived favouritism by one parent toward one or more children;
- One or two children caring for an elderly parent and no other siblings;
- Unequal division of family gifts;
- 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.
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.
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.
Court time is considered valuable time. As you may know having access to the court system is not always easy and can be extremely expensive. This is why mediation offers a very good alternative for disputing parties to consider.
While not a new concept, mediation is just recently been utilized more and more as an effective alternative to resolving disputes. Mediation requires a different kind of thinking. Interaction between the parties moves from being adversarial to trying to communicate in a manner that brings about resolution. The mediator encourages parties to think about the future and how they can move forward from the position they take in the dispute.
A mediator should empathize with both parties but remain neutral so that all parties feel the process is fair and they are being heard. Disputing parties’ emotions must be dealt with first and logic may have to wait until this occurs. Getting emotions to the surface often leads to a better communication path.
Interrelationships must be considered and different perspectives respected. The mediation process should work to achieve this if boundaries are set by the mediator.
Ultimately the goal of mediation is to be creative and come up with terms that all the parties can live with so they can move away from the dispute and get on with their lives. The process in many instances leads to a much better resolution than court ordered remedies. A good mediator can help with communication to reach that creative point to resolve the dispute.