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The Neutral’s Perspective: Lessons from the Trenches

by Ellen Kandell
March 2014

This is an excerpt of a chapter from a forthcoming ABA book about use of mediation in trust and estate matters.

Ellen Kandell

Estate cases are always about family dynamics which are  merely playing out in a different arena.  Rather than the family kitchen table it’s the mediator’s conference table.  As a mediator my hope is to help these families resolve the issues in front of them with a minimum of pain and tears and less money than a full blown contested hearing or trial.

Disputes about small estates are often about “stuff”, whether it be mom’s jewelry, dad’s coin collection, old furniture or other articles that are embedded with meaning  by the siblings.   Sometimes in these estates only the personal representative has counsel so the other siblings may be coming into mediation unrepresented.  In this event the first issue that gets mediated is who gets to participate in the process.  In one case the dispute was between the personal representative who had inherited the family home in which he lived and another sibling .  When the other siblings showed up at the mediation the attorney for the estate wouldn’t let them participate.  They stayed in the waiting room and served as a resource if needed.   The strong box with some of the personal property was brought into the mediation room and the parties went through every item, comparing it against the vague description left by mom as well as the memories of the brother and sister.

“Stuff” can also be an issue in much larger estates.  It’s only of a bigger magnitude and value.  The issues and the emotional content are the same.  In another matter I handled the attorneys, the parties to the mediation were two sisters, one of whom was the personal representative.  Both represented by able counsel who, taking on their clients preferences, asked to start the mediation in separate rooms.  I declined to do this.  One counsel and her attorney sat at one end of a long conference table while the other sat at the far end with me.  It wasn’t my preferred seating arrangement but if I had handled the mediation by shuttling back and forth the case would not have settled.  Each of these sisters had to get something off their chest before they could compromise and settle the dispute.  They woudn’t have done it by my relaying their emotionally charged statements.  

The degree of conflict in some disputes can be minimized by more sharing of information by the personal representative with the heirs.   Several of the cases I’ve handled could have been avoided if the attorney for the personal representative shared accountings, bank statements and other important documents without the unnecessary expense of first being compelled to do this by motions filed by an heir.   When interested parties don’t have information it is natural for them to become concerned, distrustful and even suspicious.

Mediator Tips:

Do convening calls in advance of the mediation to find out the general scope of the issues and the parties

Find out who would like to participate even if they aren’t ordered by the Court to be present

Determine from the parties if there are any sensitivities about having all siblings present in the mediation room

Ask how not having someone physically present in the room will help facilitate settlement

Allow the mediator to handle the emotional content with the parties.

Even if there are sensitivities and the parties want to start in separate rooms use your own best judgment about whether counsel’s request to start separately is advisable.

Biography


Ellen F. Kandell is a certified professional mediator and attorney with over 30 years of public and private sector experience. She provides mediation, group facilitation and training to diverse, national clients. Ms. Kandell trained as a mediator at Harvard Law School in 1992 and has mediated over 800 cases. In June 2016, she participated as an assessor in the second annual Consensual Dispute Resolution Competition (CDRC), an international mediation competition in Vienna Austria.



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