Early in my career as a lawyer, I practiced family law, and I found myself helping nasty people fight over things like who got the kids on their birthdays. My last family law case involved a battle over who should get the lamps and the step ladder (seriously!) and I will never forget the judge’s displeasure over having to decide who got what. The judge was especially ticked because neither party really seemed to want their little daughter. It was awful, and as soon as I could afford to stop doing family law I quit.
So imagine my dismay when, in the course of helping clients administer their parents’ estates, I discovered all of the same nasty issues cropping up. People will fight over the silliest things when money and emotions come together. What is it about the junk that clutters Mom’s house that makes it suddenly so desirable upon her death?
Telling a client he is being irrational when he gets upset over his brother laying claim to Dad’s beat-up Lazy-boy, is not going to help. He probably already knows that. He knows he is acting like a child. And that is really the point, isn’t it. It is a matter of sentimentality and emotions and hanging on to the past.
These types of disputes, like their counterparts in matrimonial law, really do not belong in the court system. They are much better dealt with through sitting down and discussing the underlying issues: the emotions, the pent-up resentments, the petty grievances that turn into major issues under stress. What can be more stressful that the death of a loved one?
This is where mediation can really play a role. A trained mediator can sit down with the parties and try to find a middle ground. Unlike a judge, whose job is to listen to evidence (a really limited amount of information) and then make a binding decision, a mediator can listen to each person’s “side” of the story and then ask questions to find out what is really going on. Suggestions are made in an effort to get the family members to come up with their own solution.
“You stole Mom’s antique clock and sold it, she meant for me to have it!” may really mean, “you never thought I was worth anything and even though you knew Mom wanted me to have that clock you don’t think I am worthy of it”. Maybe the Mediator can find out (a) what Mom’s intentions really were, (b) why the executor sister who sold the clock actually did so and (c) whether the complaining brother really wanted the clock or just wanted the money for himself. Quite a different approach from what the court could do with an accusation of theft!
There are other benefits to mediation. It is a “softer” approach that may allow family members to resolve their dispute without having to “sue” each other. There is nothing more likely to cause people never to speak to each other again than a public court fight. It is also a less expensive approach, meaning that at the end of the dispute there may still be something left over for the beneficiaries.