Human beings are social creatures. We long for connection and belonging. The first group to which any human being belongs is the family into which he or she is born. All families have their disagreements. All families have their drama. It is uncanny how frequently clients tell me that their family is “crazy” or that one family member is the “black sheep.” The truth of the matter is that human beings seek to be understood and to feel a sense of belonging. Yet, they walk the path toward those common goals in a myriad of different ways. When people disagree upon the path or disregard each other’s approach, conflict arises. Conflict is one of the biggest sources of stress and anxiety in people’s lives. When that conflict arises within one of the most integral and intimate of groups — that of a family — it can be difficult, exhausting and painful. When emotions are high and money is at stake, people frequently clash fiercely over different opinions about how to proceed. It is in this context that families often find themselves at the courthouse and embroiled in a bitter lawsuit.
Whether pre-suit, early in the lawsuit or late in the lawsuit, part of a lawyer’s responsibility, as a counselor at law, is to explore opportunities for alternative dispute resolution. Whether the case has been ordered to mediation or not, there are many benefits to engaging the assistance of a neutral third-party to explore settlement possibilities, especially in guardianship proceedings and trust, estate and fiduciary litigation — where the parties on opposite sides of the “V” frequently have a familial or otherwise intertwined relationship.
#1 Mediation Can Save Time, Energy and Money
It is no secret that lawsuits are lengthy and costly. They can also take an emotional toll on the parties, who are often filled with fear, frustration and anxiety. Mediation, particularly if scheduled early, can mitigate a great deal of time, energy and money otherwise involved in litigation. In certain cases, this also gives the parties the gift of closure, providing them an opportunity, if they choose, to allow their wounds to start healing sooner and avoid any further infliction of trauma.
#2 More Flexible and Creative Options Through Mediation
Unlike a Clerk of Superior Court or a Superior Court Judge who is constrained by statute and common law, in mediation, the parties have full, complete and unfettered discretion and ability to craft any type of resolution that will work for them. For example,
- want to develop a care schedule for mom?
- want to implement a visitor schedule for dad?
- want to agree to shared access to financial and healthcare information?
- want to relinquish an interest in tangible personal property in exchange for an interest in real property?
- want to let an auctioneer eek out as much value as possible out of personal property?
Almost any idea you can imagine (subject to court approval in certain, limited circumstances) is available to the parties through mediation.
#3 Maintain Autonomy and Control Over the Outcome
Not only does mediation allow the parties more flexibility, it also guarantees the parties freedom, autonomy and control over the outcome of their case. I often liken trial (and, in many ways, even summary judgment) to gathering up all the ripe, succulent fruit you can find and arranging it on a beautiful, shiny, gold platter in such a way as to hide, as best one can, the few small pieces of rotten fruit, and then ceremoniously and gently laying that precious platter at the feet of the trier of fact. Then waiting. Then wondering. Then trying to remember to breathe. Then feeling completely powerless as the trier of fact kicks that beautiful, shiny, gold platter across the room and stomps all over the fruit, much like an insolent two-year-old in a full-blown tantrum might. Most rational adults strongly disfavor ceding power. Mediation is one way for parties to maintain autonomy and control over when and under what terms they choose to settle.
#4 mediation provides for Privacy and Confidentiality
As pervasive as the media and social media are, it can be extremely difficult to maintain privacy, particularly in light of the Public Records Act. Mediation, on the other hand, is a closed and confidential process. The Standards of Professional Conduct for Mediators generally prohibit a mediator from disclosing, even to the Court, any information communicated to the mediator by a participant in the mediation process, whether the information is obtained before, during or after the mediated settlement conference. The privacy and confidentiality of mediation can be especially important where large amounts of money are at issue, criminal conduct is alleged, or where a party has a history of substance abuse or mental health treatment.
#5 Possibility of Salvaging the Relationship
In many cases, the parties on opposite sides of the “V” have an interest in or a practical need to maintain a working relationship going forward. For example, fueding siblings not only have a familial relationship, they may also have a practical need to interact in the future as they tend to the physical, emotional and financial wellbeing of their aging parents or to maintain amicable connections for the rest of the extended family’s sake.
The use of a neutral facilitator provides an opportunity for the parties, in certain cases where there is an interest, to repair and perhaps even restore their relationships going forward. A favorite quote notes that: “Every human being walking this earth has painful stories tucked in the corners of their hearts. If we could remember this truth, perhaps we could see with the eyes of compassion rather than the eyes of our judgments and preferences" (from The Yamas & Niyamas: Exploring Yoga's Ethnical Practice by Deborah Adele). It is a tall order but through the listening and guidance of the mediator and the willingness of the parties, it is possible to salvage and even transform their relationships.
In my experience litigating trust, estate and fiduciary matters as well as guardianship proceedings, the vast majority of clients do not really want to be in court. They don’t want to sue their sister or their brother. They don’t want their mother or their father to be declared incompetent. They have enough on their plates just figuring out how to care for their aging family member or even dealing with grief — without adding the stress, time and expense of litigation on top of that existing heavy load. They are at their lowest. They are in crisis and they need help. They have values and interests that are not being heard, understood, or respected. As a mediator, I seek to create a space for the parties to express themselves freely and fully so that they may feel heard, understood and respected. By creating and holding a neutral space, the healing and creative thinking necessary for the generation of practical solutions becomes available.