Earlier this year, I blogged about estate litigation as a form of FDR (family dispute resolution).  As practitioners and our clients know from experience, estate litigation often involves complex family dynamics that can benefit from a non-adversarial approach to dispute resolution.  

I recently came across a list of the top “5 Benefits of Mediation for Family Law Resolution”, written by The Honourable Sherry Klein Heitler, a retired New York judge and mediator.  Given the similarities between FDR and the resolution of estate disputes, I thought that it would be worthwhile to review these benefits and consider them within the context of estate litigation, in which they remain highly relevant:

1.     Cost Savings

Family Law:    The costs of matrimonial proceedings can see the parties deplete their life savings.

Estates:           Estate litigation can be incredibly expensive, with costs paid from the assets of an estate or by the parties personally.  Even when costs may be paid from the assets of an estate, the parties involved are often beneficiaries whose interests are indirectly depleted by the costs of litigation.  While, traditionally, it was more likely than not that the estate itself would ultimately fund litigation expenses, estate litigation has more recently adopted the “loser-pays” model, with risk of significant adverse costs consequences to unsuccessful participants in estate litigation.  Avoiding the costs and risk associated with continued litigation are a key benefit of a mediated settlement of an estate dispute. 

2.     Flexibility

Family Law:    Parties to family law proceedings may have limited (if any) input as to the scheduling of a trial or other court dates and the manner in which the matter is heard.  The decision-maker cannot normally be selected by the parties, whereas a mutually-agreeable mediator can be engaged as part of the FDR process.

Estates:           Mediation allows the parties to assume control over the dispute resolution process as well as the outcome of a matter, being able to fashion a result that may not be possible at trial.  For example, the parties to a will challenge can agree to the distribution of assets in a manner other than that provided under any testamentary document left by the deceased.

3.     Time Savings and Continuity

Family Law:    Trials can be painful, lasting weeks and significantly impacting a party’s finances, work, mental health, and relationships.  Mediation may assist in the resolution of a dispute in less time and at an earlier stage.

Estates:           Estate litigation can last years, during which grieving may be prolonged and a family’s ability to move on with their lives is hindered.  Mediating early on in the process, after sufficient information is made available to facilitate productive settlement discussions, can assist surviving family members to resolve problems and begin to heal.

4.     Privacy

Family Law:    The time surrounding a couple’s separation and/or divorce is incredibly stressful.  Mediation provides an opportunity to deal with matters privately and can be less stressful relative to the courtroom experience.

Estates:           A death in the family is another stressful life event.  Estate litigation can see a family’s “dirty laundry” made public, including disclosure of personal and/or financial information that most of us would like to keep private.  There must be compelling reasons for a file on the Estates List to be “sealed” such that its contents are not publicly accessible.  What is discussed at mediation, including settlement terms and figures, typically remains strictly confidential and is not disclosed outside of the process except as necessary to give effect to them. 

5.     Long-Term Results

Family Law:    Twelve-year follow-up data suggests that mediation facilitates the involvement of both parents in a child’s life after proceedings end when compared to traditional litigation.  Each party has a story to tell and has an opportunity to do so during mediation. 

Estates:           Mediation may offer greater potential of continuing or repairing family relationships than proceeding to trial.  Collaborative ADR processes also offer anticipatory problem-solving of issues not only relevant now but those anticipated down the road involving the same family members. 

Thank you for reading,

Nick Esterbauer

Other blog entries that may be of interest:

·      The Supreme Court Reviews Limitations of Mediation Confidentiality

·      No Settlement – Is it a failed Mediation?

·      The Requisite Elements of a Binding Settlement

·      Can mediation be required in a jurisdiction not subject to mandatory mediation?