Mediating Trusts and Estate Disputes

Mediating Trusts and Estate Disputes
March 13, 2020

{4 minutes to read} Are all family disputes the same? Of course not. Divorce mediation is different from mediation involving the contest or interpretation of the provisions of a Will or Trust Agreement. But clearly, they have similarities:

Ongoing Relationships

While some familial relationships may have always been troubled, it’s likely that at some time, the parties probably got along well. And they may need to continue to get along for the sake of attending extended family gatherings, care of a surviving parent, etc., just as ex-spouses need to get along for the sake of their children.

Broken Trust
 
Because of the special relationship they may have shared, when trust is broken it’s devastating. A sibling who accuses another sibling of overreaching and/or taking advantage of a parent to gain a larger bequest results in not only the accuser feeling betrayed but the accused feeling resentful for being accused. 
 
Need to Be Heard
 
While all parties to any dispute have a need to be heard and understood, the strong emotions that are present in a family dispute make this need paramount. It’s a need that is unlikely to be met fully without a dialogue occuring in a safe setting with a trained professional. 
 

For these reasons, mediation is as beneficial for estate and trust disputes as it is in a divorce. And with the adoption of presumptive mediation in New York Courts, parties may have the opportunity to mediate their dispute.

I serve on the Roster of Mediators for Westchester Matrimonial and Surrogate’s Courts. I have found the Surrogate’s Court matters I’ve mediated to be well suited to the process and helpful to the parties, even if not all have resulted in a full settlement. The benefits include: 

  • An increased likelihood of keeping an ongoing familial relationship, including among the children of the siblings in conflict. The chances of this are greater if there is an outcome that is agreed upon versus a win/lose outcome that would be inevitable in a judicial resolution. 
  • The strong emotions that exist because of a breach of trust are better addressed by a trained mediator than through a litigation process that tends to inflame rather than calm or resolve those emotions.
  • Most importantly, the opportunity to be heard and understood is more likely to present itself in mediation, which in turn can lead to a resolution that addresses the parties’ needs and interests.

As helpful as I have found the court-ordered mediation process to be, I think it would be even more beneficial to mediate estate issues as a first option, just as I recommend mediation as a first option in divorce. This can prevent the positional posture and hardened points of view that occur in an adversarial process.

Because of the presumptive mediation mandate, trusts and estate attorneys are more aware of the benefits of mediation. Many have taken mediation training themselves. So, if you are involved in a contested estate, you can speak to your attorney about whether it would be possible to pursue mediation before filing a contested action. 

« Return to Blog