Category Archives: Estate Mediation

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.

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 may be more than two people involved.

Going to court may make sense especially if the dispute is very adversarial or the issues are unique and must be considered from a legal perspective. Mediation is a personal choice and the outcome may not resolve the dispute. Failure is however OK. Trying something different is not wrong it just means that your particular dispute could not be resolved by going through the mediation process.

In the estate context, mediation may be a very good option. Potentially, everyone wants the dispute to be completed and the estate distributed. So is mediation a viable option for estate disputes? Most definitely but all parties need to be on board and desirous to resolve the estate dispute.

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 these issues are left unresolved.  An estate mediator may be able to deal with these outstanding family law questions or this may require that lawyers sort through the family law matters.  Family mediation and estate mediation deal with distinctive disputes.  Estate mediation is done to resolve disputes that have arisen when a person dies.  Family law mediation deals with issues when all parties are alive.

If you find you are in a conflict which started off as a family law dispute but a party dies and it is now an estate dispute, seek legal advice first so you understand the family law issues and where they stand now at death. Make sure you know your rights as it relates to both family law and estate law.  Ensure that any mediator you work with is aware of both family law and estate law disputes and feels comfortable in that regard.

Quebec moves to include dispute resolution in the Quebec Civil Code

The province of Quebec has taken a bold step in moving towards mediation over litigation. The new Quebec Civil Code came into force on January 1, 2016. The Code emphasizes using dispute resolution. The hope is that directing parties to mediation will help unclog the court system. Included in the new Code is that disputing… Read More

What type of mediator style is a good match?

Mediators have different styles and techniques that should be discussed prior to selecting a mediator. In order to select the mediator,your discussions should leave you feeling comfortable with the mediator and confident that they have been transparent with you about the mediation process. There are considerable differences in the way mediation is practiced. Some mediators… Read More

Can a mediator resolve my dispute? What are my options?

Mediators act as neutral third parties in a dispute. Mediators are facilitators but not decision makers to the dispute resolution process. Arbitrators differ from mediators in that they will hear from both sides and make a decision. That decision becomes binding upon the parties. Mediators will from time to time test the parties as to… Read More

Estate mediation will be an option for courts to encourage settlement of estate disputes

In a recent blog we talked about the future of alternative dispute resolution (ADR). Mandatory mediation exists in certain areas of the province. Ottawa, Windsor and Toronto are all part of the program which applies to estate mediation. As of January 1, 2016, there will be new regulations put in place that will give the… Read More

Does the future of the court system include ADR?

For those of you who have had to use the court system for any dispute, you will know that the process is incredibly complex, long and expensive. The legal profession is on the verge of a transition looking to better its service offering and provide a different model for billing. While ADR (alternative dispute resolution) has… Read More

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