Like elder care concerns, family dynamics can be at the core of an estate or trust dispute. Often, intergenerational family structure affects the ways families communicate and cope with crises. Family members may have divergent expectations and needs, and they intensify when decisions have not been clearly communicated or determined before death. The issues are many, from how the family legacy will be passed through succeeding generations, to the symbolic value of a small trinket. Family members are often motivated by feelings of recognition, and a desire for power and status within the family, or the simple need for fair treatment by other family members. In mediation, we help identify family priorities, resolve pressing concerns, and even develop long-range plans.
It goes without saying that people are more satisfied with their estate planning if their wishes are carried out and conflict is resolved or avoided. When there is participation and understanding by family members of the reasons behind a testator’s decisions, testators can encourage family harmony after they die and create a greater chance that the maximum distribution of estate assets will be timely distributed to intended beneficiaries. For instance, addressing the needs of children with disparate educational backgrounds and financial means may require a specific discussion with the testator to clarify intent and encourage agreement. Likewise, coming to a clear expression about a desire to preserve an asset, such as a family business or real estate, can clarify expectations for future generations.
From our own life, those of friends, or even the gossip pages, we can probably all recall a family dispute that seemed to spiral as each person involved was sure he or she was absolutely right. Often, these disputes end up in the courts and, sometimes, someone emerges as the “clear winner.” More likely, a compromise is reached before trial that may not necessarily be the best resolution for the parties. This is particularly true in estate litigation. The Honorable Kristen Booth Glen, New York County Surrogate's Court Judge, remarked at a program for the New York State Bar Association Dispute Resolution Section that upwards of 95% of all cases before her get settled without a trial. Yet, settlement has its own price: in the family context, the time it takes to get the matter settled may have already created irreparable damage and pain. And, some settlements bring on a outcome that could not be farthest from the testator’s intent.
Mediation of trust and estate issues, like all mediation, enables the parties to take control of the outcome. It can also ensure privacy of family matters by preventing a contest in the Surrogate’s Court. Mediation can address the emotions that may be interfering with the ability to make a rational decision. Families grieve in different ways and intensities, but have unique histories with the testator and other beneficiaries that inform their expectations. Mediation is particularly suited to the complicated relationships that may arise for persons who have multiple marriages or blended families, special needs children, and children with disparate educational backgrounds, financial means, or emotional connection to the family. Many disputes arise because of the time gap between execution of the will and the time of the testator’s death. For instance, did a sum of money represent an advancement against the estate or a gift? Or, how to handle a specific piece of property devised to a beneficiary that has since been transferred or lost to a casualty? While there may be established law addressing these “time gap” issues, often, particular facts do not fall neatly within the framework or seem patently unfair to someone, thereby leading to a dispute.
Mediation provides an opportunity to settle disputes in a timely way while reducing stress and excessive financial expenditure. By providing (1) an impartial forum and a flexible process that promotes the articulation of all concerns, not just those of a legal nature, and (2) an understanding by all parties of the same, mediation is able to address a range of issues not just those represented in litigation. Thus, questions of undue influence or capacity of the testator can be addressed as well as the emotional and economic value of a piece of furniture. Moreover, it can allow the parties to engage in mutual problem solving and creative solutions. Often this creates a framework for future family interactions, even enhancing family relationships. A skilled mediator who has knowledge of family systems and conflict resolution can focus on resolving both the legal issues and the technicalities of drafting enforceable provisions in the context of the family dynamic.
McCarthy Fingar's Mediation & Arbitration Group can help. We know that each family is unique and has its own history of communication and decision making. Judge Sondra M. Miller, who leads our Mediation & Arbitration Practice Group, began her career as an attorney specializing in trust and estates matters. She bring her 21 years on the bench to help families solve pressing problems without resorting to litigation. Mediation Counsel, Abby P. Rosmarin, who is skilled at working with families in crisis, varied communication styles, and diverse values that may form the backdrop of family discussions, is both an attorney and a mental health professional.
If you think you may require the assistance of McCarthy Fingar in Trusts & Estates Mediation or Arbitration, please contact: