Estate Mediation by Norman Pickell

Jewellery. Silverware. Coins. Vehicles. Cottages. Family farms. Houses. Furniture. Wood piles. As an estate lawyer and mediator, I have seen people fight over all of those things and more after a person has died.

Disputes may arise because family members have different views of what is a fair distribution of the deceased's property.

Sometimes the arguments are between beneficiaries. Sometimes they involve people who thought they should be beneficiaries.

Almost always the fighting involves family members, whether they are children, grandchildren, siblings, a step-parent or other relatives.

Approximately 25 % of Canadians expect to have a conflict with family members over a will.

In one word, I am going to tell you how you can reduce the level of conflict. MEDIATION.

After the death of a parent or other family member is the time when people are grieving and need the support of each other. The last thing that people should be doing then is arguing over the deceased's estate.

But emotions are usually running high after the death of a parent or other relative. Sometimes the death can trigger issues that have existed just below the surface for years. Conflict at this point in time can literally destroy a family. Special occasions during the year are never the same for those families. In fact, some relatives never speak to one another again. When I mention this to people, most have a story to tell. You likely do too.

In many jurisdictions, including Huron County, estate mediation is voluntary. If everyone agrees to go to mediation, then a mediator can be chosen and the process started.

You should consider using mediation before you go to court. But even if the lawsuit has been commenced, it is still not too late to go to mediation.

Court files and court rooms are open to the public. Mediation, on the other hand, allows the family to keep their dispute out of the public eye.

Mediation is cheaper, both financially and emotionally, than going to court. Mediation is also faster. Estate mediation is conducted in a very informal atmosphere, in contrast to the formalities of the court room. Mediation also gives the parties more control over the outcome than if they went to court.

The neutral mediator helps those involved in the dispute to communicate and negotiate with each other in a constructive manner. Mediation gives everyone the opportunity to voice key emotional issues in a controlled environment.

When matters are being discussed "off the record" in mediation, the parties tend to speak more freely than they do in a court case. The result is a better understanding among the parties of what the real problems are.

Everyone involved in mediation has an opportunity to be heard. Sometimes being heard and receiving an apology or explanation for something that happened in the past is more important than receiving monetary rewards from the estate.

In mediation, we talk about interests, instead of positions. With the mediator's assistance, the parties work out a mutually satisfactory resolution of the matters in dispute. The process does not just involve the legal issues. In most mediations, the underlying causes of the conflict are explored - and often resolved - as well.

While some time is spent discussing the problems, mediation provides a method for looking at solutions. The mediator helps the parties and their lawyers look at all possible options, including ones that perhaps no one has thought of before. Then the parties together decide the outcome.

Grief may affect one or more of the party's ability to mediate. Hence, the mediator may suggest that mediation be delayed to allow a party to progress further through the grieving process.

Mediation can repair, maintain, and even improve the relationships that exist among the parties. This is so important in estate mediation because usually everyone involved is related or a good friend.


Norman Pickell is a mediator and lawyer based in Goderich, Ontario. For more information about mediation, please visit his web site at www.normanpickell.com.