Just as mandatory mediation in other areas of the law has come into being,
so too will mandatory estate mediation come into force in September, 1999.
Estate mediation brings clients with disputes related to the administration
of estates together with a view to their jointly working out a mutually
satisfactory resolution of the areas in dispute with the help of a neutral
mediator.
When the "interest-based" model is used, the process involves not
so much attempting to resolve the parties’ strict legal rights (for example,
who is entitled to the silverware?) as trying to uncover the underlying root
causes that are driving the parties’ positions (such as a need for
recognition within the family or respect from a particular sibling).
Even in cases where such a mutually acceptable resolution is not reached,
the very fact that all the parties are willing to meet together in a room to
actively listen to each other often narrows down the areas of dispute, and
sets the agenda for a later arbitration or court hearing of the remaining
issues, if the parties so wish.
Why is mediation particularly useful in estate disputes?
Estate disputes are usually highly personal in nature and often are
emotionally charged. They tend to arise at a time when family members (or a
circle of friends) are trying to come to grips with the death of a loved one.
The disputes are often between persons who, for family or other reasons, may
wish to have a continuing amicable relationship in the future. Frequently the
"glue" that has been holding the family together (the deceased
parent) has suddenly disappeared and litigation is not always the best forum
in which to allow a restructuring of their relationships. Anything that can
reduce the tension and negativity of a long drawn-out court proceeding, with
each side pitted against the other, is valuable in the context of long-term
future relations.
Some estate disputes arise because the deceased failed to, or was unable
to, come to grips with dealing with certain assets during his or her lifetime,
or in his or her Will. Some estate disputes arise because the provisions of
the deceased’s Will are unclear. Some arise because the terms of the Will
have been learned at a time of stress and do not meet expectations, be these
expectations reasonable or unreasonable. Some arise simply because strong
emotions have been brewing "beneath the surface" for years.
Key assets that are often the basis of such disputes are the family
cottage, prized personal possessions and the family business. Finding out the
key interest, needs and underlying emotions of all of the parties in a neutral
environment often facilitates the resolution of these disputes.
Interests, needs, and emotions are often intertwined. Sometimes just
allowing a party to be heard by all concerned can reduce the tension that has
built up, sometimes over a long period of time, can pave the way to a mediated
settlement worked out by the parties themselves. Studies have shown that such
self crafted settlements are more likely to be upheld by all concerned.
In some cases, a party’s interest actually centres on what that party
does not want another part to have, rather than on what the party wants to
have for himself or herself. This underlying motivation is often only
discovered by digging below the surface of the positions taken by that party.
Why is brother, John, who already has a cottage of his own, so determined
that his sister, Anita, not receive the family cottage as part of her share of
the residue of their father’s estate? What unresolved emotional matters have
to be unearthed to establish the real motives, and the real interests of John,
in taking such a stand? What does the family cottage really mean to John? Are
there some other estate assets that John can receive to equalize the value of
the cottage, after the emotional aspects have been aired and put to rest?
In matters of estate mediation, mediators with a background in estate law
and administration have the experience to recognize the problems that the
situation can generate and to deal with the issues (both stated and unstated),
in order to help the parties reach a mutually acceptable resolution. They
bring to the mediation table an awareness of various additional options, be
they "right-based" or "interest-sensitive", which may
assist the parties to resolve these matters within the confines of the
mediation session.
Marsha Onyett, an estate lawyer and mediator, is a partner in The Centre
for Estate Mediation in Toronto, Ontario. Ms. Onyett can be reached at (416)
865-1639 or estates@idirect.ca.
For more information on Mediation click
here.
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