Jay Folberg recently wrote the four page article,
"Mediating Family Property and Estate Conflicts"
in the ABA’s December 2009 issue of Probate &
Property. I’ve distilled it into the top five reasons
why you want to heed his advice to mediate rather
than litigate:
1. Expense. Litigation is ridiculously expensive. It takes
untold hours for partners, associates, and paralegals to wade through
discovery documents, take depositions, fight numerous pre-trial battles,
and properly prepare a case to proceed to a hearing or trial. Don’t get
me wrong – that’s how I make my living and sometimes there is no other
choice, but it takes a tremendous amount of time and money to litigate.
Settlement at any stage of litigation stops the bleeding of attorneys’
fees.
2. Publicity. Certain family members are good at starting a fight
without looking down the road to see where that path leads. When the
mud between disgruntled family members starts to be tossed around, it
may feel good for the person that starts the fight to file their
salacious allegations, but those become public documents for curious
gawkers to review. And the responsive documents filed could turn out to
be even more salacious and damaging. Early mediation avoids battling in
a very public forum.
3. Non-Party Participation. The plaintiff or petitioner files
the lawsuit or petition and the defendant or respondent answers. But
with family disputes, there are often non-party players that are pulling
the strings behind the scenes that have great influence. With
mediation, the non-parties may be allowed to participate in the process,
which allows them to voice their opinions and can be beneficial in
allowing all to feel they have had their "day in court" without actual
litigation.
4. Creative Resolution. Often times in litigation there is a
winner and a loser, without much gray area in between. Mediations are
opportunities to toss around creative resolutions that the court may not
have the ability to use. For example, Folberg notes a settlement in
which one brother settled for income producing real property, because
that met with his needs and interest, and the other brother received the
real property with the development potential, because that met with his
very different needs and interest.
5. Family Communication. Conventional litigation, with the
parties speaking through their attorneys, does not allow for the
interaction that may be necessary to help frustrated family members
resolve their conflict. The right mediator and the right attorneys can
be powerful in guiding conflicted families back toward some sort of
relationship. Can it happen? Absolutely. Does it happen? Not nearly
often enough.
