How To Mandate Mediation

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When it comes to trust and estate issues or matters of inheritance, full and open communication can help family members avoid unnecessary conflict.

But can you do anything to minimize family conflict if you become incompetent or pass away?

You might want to encourage your family to continue communicating amicably – even after you are unable to express your preferences – by including a “mediation” provision in your will or living trust.

What mediation is and isn’t

What is mediation? It might be easier to begin by explaining what mediation is not.

Mediation is not litigation. Litigation is a hearing in a court with formal presentation of testimony and evidence. Lawyers do a lot of the talking, and a judge’s ruling is the final decision. That decision also generally becomes a matter of public record.

Mediation is also not arbitration. Binding arbitration is a hearing before a person who is not a judge – but almost. The presentation of testimony and evidence is less formal than in a court, but the arbitrator’s ruling is final. Non-binding arbitration does not produce an enforceable decision, but gives the almost-judge arbitrator an active role in shaping the outcome of the parties’ discussions.

In contrast to litigation and arbitration, mediation is much less structured. It is simply an opportunity for everybody involved to have a conversation. The conversation is facilitated by an objective third party called a “mediator”.

There is no formal presentation of evidence or proffer of testimony during a mediation session. More often than not, lawyers do not even participate.

The mediator, who may or may not be a lawyer, is not there to make a judgment or even venture a legal opinion. The mediator is simply a neutral person who assists the parties in fully discussing the issues that prompted the conversation.

It may be that the parties simply clarify their positions and understand each other better. They may discuss possible options or alternative. Perhaps the parties succeed in crafting an agreement that resolves some or all of the issues that brought them together. As the term “agreement” implies, an agreement is enforceable only to the extent that everyone agrees to the provisions in it.

Benefits of mediation

So why would someone choose mediation over litigation or arbitration?

For one thing, mediation is less costly. One or two mediators can take the place of several attorneys. A few informal mediation sessions might accomplish what an adversarial proceeding might take days to achieve.

For another, a mediation session is confidential. The discussion can be free, full and open: what’s said in the session, stays in the session (with limited exceptions).

But perhaps most importantly, it is the parties and the parties alone who determine the outcome of a mediation. As a result, the people who know the situation best are controlling the process.

No one – however skilled or experienced – knows your family as well as you and your family. And it makes sense that family members, rather than lawyers or judges, should be the ones who craft a resolution to any family conflict or crisis.

Your resolution might be creative, even unique to the needs of your family. New or different options that might never arise in a more formal proceeding might blossom into an agreement that works for your family’s particular circumstances.

Family members are far more likely to comply with the provisions of an agreement that they helped craft and willingly chose, in contrast to a court order or an arbitrator’s ruling.

Even if a complete resolution of the parties’ differences is not achieved in mediation, participants should emerge clearer and more focused regarding their options. Even if a litigation does take place after mediation, the case should be less time-consuming, less costly, and, hopefully, less combative.

Perhaps most importantly, the lines of communication have been kept open, and precious relationships are maintained. Even if the mediation concludes with all participants agreeing to disagree, everyone has had an opportunity to hear and be heard in a safe and civil forum.

Providing for mediation

How can you arrange for your family to mediate any trust and estate disputes rather than turn to litigation or binding arbitration?

Consult with your attorney about including a mediation provision in your will or living trust. That provision should state your desire that any disputes over inheritance matters be resolved using a mediator, and authorize your executor to pay any related fees or expenses from the estate.

You may also want to suggest who should participate in any mediation sessions (e.g., do you think having lawyers participate in certain sessions would be helpful or not?), and at what point you believe a mediation might be helpful or necessary.

Getting family members to sit and talk about their differences might not solve all their problems, but it might prevent some long-term damage to their relationships, and add immeasurably to your legacy.

Nancy Karkowsky is a mediator and attorney in Silver Spring, Maryland.

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