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Mediating Inheritance Disputes

by Jeffrey Fink
July 2014

Previously published in the Spring 2014 Family Mediation Quarterly.

Jeffrey Fink

Inheritance disputes can be difficult to resolve.  They are tied up in a lifetime of emotions toward the deceased and every other claimant under the will, as well as personal and spousal expectations of monetary gain.  Here are 10 tips and tricks that have helped with this kind of dispute:

  1. Grief. Grief never stops completely.  It only gets attenuated.  Every time something comes up that reminds a party of the deceased, there is a little bit of grieving.  Since there is no “normal” for how people express grief, it is hard for a mediator who does know the parties well to predict how they will act or what their particular triggers might be.
  2. Old Habits. Normally high functioning people sometimes revert to childhood patterns of interaction.  If a person was dependent on a parent into adulthood, they may display dependency when discussing the parent. Interaction patterns with siblings that were formed decades ago still persist, so middle-aged people will argue like they did when they were young children.  A sibling who was respected as a 12 year old may carry that respect well past the time it is warranted.
  3. Money isn’t just money.  As in other areas of life, money can be a proxy for parental love, sibling love, competing notions of fairness and even competing notions of honesty.  The mediator should not assume he or she knows what money means to each of the parties.
  4. …Except when money is just money.  People may have lived their lives in anticipation of a particular inheritance.  They may have disproportionate financial needs, or, sometimes, disproportionate greed.  If the conversation becomes a zero-sum calculation on how to maximize financial gain, then the mediator should consider ways to broaden the discussion by adding non-financial elements to the mix such as preservation of personal relationships, or by exploring creative solutions such as using financial payments to fund the next generation’s college bills.  Although commercial mediation techniques designed to manage positional bargaining may work to resolve the financial part of a dispute, the mediator should be cautious before choosing tools that may further damage personal relationships.
  5. Addressing Relationship Problems Often Resolves Money Problems.  People who seek out a mediator generally have strong but divergent opinions on financial issues.  In many cases, it can be helpful to have them express these opinions up front, then spend more time on the fractured relationships that have led to their disagreement.  This often sets the stage for overall resolution.
  6. Taxes Can Make Rational Decisions Difficult.  For instance, an asset specially bequeathed to one child may need to be valued for tax purposes, which all beneficiaries should want to be a low number. The problem is that if the will reads, “Tommy and Janet each get 50% of the estate, but Tommy gets the house and counts the value toward his 50%,” the beneficiaries may disagree with a low valuation of the house.
  7. Embarrassment. The mediator is intruding upon a deeply personal clash.  Parties are often embarrassed to be in his office.  There is often a shared expectation that the parties should have been able to resolve the dispute themselves.  Establishing a personal connection with the parties is very important to try to overcome any reluctance to speak freely in front of the mediator.
  8. Everyone Should Be In The Room.  Even The Deceased.  Spouses often exert subtle and not so subtle influences on the parties. Much of the time, they should be in the room. Children and grandchildren should generally not be present, especially if they are minors, since they add a layer of emotional complexity that is not conducive to resolution; however, if a piece of the puzzle has skipped a generation so that grandchildren who are of age are direct beneficiaries, there may be specific reasons to include them. The more difficult issue is that people who cannot be present, such as the deceased, usually play an important part in the process.  For instance, parties often say, “Mom would have been horrified that we are fighting.” The mediator should use this as a gift – except that he should be careful if Mom had a pattern in life of intentionally causing strife.
  9. Time is the Key. As with divorce mediation, parties’ ability to stay focused is usually limited to a few hours at a time.  Also, it takes time to for inheritance discussions to work their way through the process.  On the one hand, grief proceeds at its own pace.  On the other hand, inheritance discussions often follow a particular pattern that overlays the major emotional processing.  Since communication in the presence of a neutral sometimes makes people speak and hear more clearly, the first session may involve re-opening channels of communication.  The parties may then need to exchange enough views and information to be able to make a decision, which could take a second session or some legal skirmishing outside the mediator’s office; they may then need to use a third session to process the information, depending on how much work they do offline; and then they may need yet another session just for help making the decision.  As with family business disputes, the mediator should set the parties’ expectations up front.
  10. It is an Iterative Process.  As with other types of mediation, parties often keep circling back to the same points.  Different mediators use different approaches.  Some move parties quickly forward in the interest of a speedy resolution.  If the parties’ primary goal is to find a dollar amount to settle a case, that makes sense.  However, while I do try to keep parties focused on the future, I tend to let them stay in the conflict narrative more than in other kinds of mediation.  If you help them through it, the iteration will help them with the grieving process as well as with separating their interests from their positions as, over time, they come to re-evaluate what is most important to them.  In my experience, this approach reduces last minute changes of heart.

Biography


Jeffrey Fink mediates business and family disputes, taking a clear and practical approach to dispute resolution. On the business side, he uses his extensive background as a transactional lawyer and outside general counsel to understand not just the law behind the disagreement, but the details of the disagreement and the reasons it arose. On the family side, he helps people untangle the emotional and practical aspects of their disputes to help them make difficult decisions. Jeff has a particular interest in partnership disputes and disputes at the intersection of business and family matters such as family businesses in divorce.



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