As a trust and estate attorney do you ever have the feeling that litigation is only going to make matters worse for this family? When you are representing a client in a will contest, either representing the estate or the claimant, do you wonder why you didn't foresee this contest or what could have been done differently in the estate planning to prevent this litigation? Or when you are working with your client to design an estate plan, do you ever have misgivings about the plan -- that perhaps you are working without a clear understanding of the what the other family members want or what will work? Do you sometimes, despite your desire to create a plan that will minimize administrative costs and create certainty for your client, have the intuitive feeling that there may be conflict in the future over this estate?

Mediation is being utilized more frequently as a dispute resolution process in will contests and in controversies regarding estate management and elder care. A successful mediation in these cases cannot only cut the cost of litigation. It can preserve family relationships and assets. But if mediation can be used as an alternative to litigation to preserve harmony and assets, doesn't it make sense to use it as a preventative tool when creating the estate plan?

If part of a client's legacy is to create an environment of trust and cooperation, use of mediation as an estate planning tool will allow attorneys to serve more needs of their clients. Mediators do not represent any of the parties, make no decisions, and have the skills to both identify conflicting issues and interests, and to help resolve them. By using all of the tools available to us, we can best serve our client's needs for certainty, harmonious relations, and smooth transfers. Use of mediation is not meant as an alternative to using an attorney. It is presented here rather as a tool for the wise attorney who can see that there may be trouble down the line for his or her client if there is not consensus (or at least communication and understanding) between family members of each others' wishes before a plan is finalized.

Attorneys usually tell their clients that the goals of estate and disability planning are to ensure that their wishes are carried out, and the costs of administration are kept as low as possible. Most of our clients have as a fundamental value to provide for their families and to leave a legacy, and they express a concern about loss of control when they reach an advanced age. But did you ever get the feeling that your client really doesn't know the wishes of his family, or that he or she may have a distorted picture of their family members? Did you have some misgivings about the efficacy of the desires of the testator? Did you ever get the feeling that this whole plan is going to be contested? Attorneys want to minimize administrative costs for their clients and create certainty. No ethical attorney wants to create disputes for their client or their families.

However, the use of traditional estate planning, where the client discusses his plan with his own attorney, and other members of the family are kept out of the process or are represented by their own attorneys, oftentimes leads to litigation down the road. The battle between family members creates uncertainty, increased cost, loss of control and increased acrimony. The trust and estate attorney to avoid these pitfalls can use mediation as a tool.

Traditionally, a client meets in private with their attorney. It is only when the client becomes incapacitated or dies that the rest of the family learns of the plan that has been created. Because the plan was created in secret, the attorney is often provided incomplete or erroneous information. This leads to plans based on flawed assumptions.

For example, husband and wife come in together to see you. They have a family business and several adult children. One of the spouses won’t bring up issues that they know are upsetting to the other, such as the capacities and wishes of the children. As a result, the attorney may draft a plan that does not take into account that the children’s wants or abilities to care for the business. The children may have different views about both parents and each other based upon long-standing emotions. None of this surfaces until it is too late to do anything about it.

The testator has made major decisions while isolated from the rest of the family. The traditional planning process lends itself to the use of the plan as a way to punish or reward past conduct, whether real or imagined. The nature of the process engenders mistrust between the beneficiaries, and fear that someone else has unfairly influenced the testator. Not surprisingly, traditional methods often lead to bitter and protracted feuds among the beneficiaries.

If we recommend the involvement of the entire family in these issues, we are creating the opportunity to carry out our clients' wishes in a manner that minimizes the likelihood of litigation and increased acrimony, while maximizing the estate planning values. The use of mediation also provides the possibility of benefits not previously available in the traditional process. The benefits of using a family conferencing method facilitated by a mediator are not the same in every case. We have listed some of the benefits in the box to the right.

BENEFITS OF USING MEDIATION IN ESTATE PLANNING

creating peace of mind in the testator in knowing their family is getting along

improving family relations while the testator is still alive

increased financial well-being

opportunity to promote maturity and responsibility between and by the beneficiaries

creating a plan that is both realistic and responsible

creating opportunities for partnership

affording beneficiaries the opportunity to honor the testator's memory

increased likelihood in certainty

decrease in administrative costs (if no litigation)

Let's look at a hypothetical case, which you might get as an estate-planning attorney. Father, your client, is quite frail and elderly. He has three children, adults, all living out of town. He is married to his second wife, not the mother of his children. There has always been distrust between the siblings and the stepmother, especially between the elder daughter and the stepmother. The father owns a large ranch in the Santa Ynez Valley, which presently generates an annual income of $100,000 per year in cattle ranching. The property has been appraised at $10 million and there are additional assets of approximately one million dollars. The father has always been the autocrat of the family, not taking his children's wishes into account. He wants to sell the ranch and place the proceeds in a life estate for the wife. Two of the children want to keep the ranch and turn it into a vineyard. Father has not been responsive to their requests to discuss the matter. They have hired an attorney who contacts you. After meeting and discussion with their clients, the attorneys agree to hire a mediator to meet with all parties.

The mediator would first speak individually to each family member -- the father, the stepmother, and the three siblings. These private meetings are crucial in developing trust and rapport with each family member. Besides allowing each party to vent their emotions, the private meetings are also used to explore options and to encourage the parties to think creatively before the mediation.

After these private meetings, a joint meeting is held with all family members to explore openly their thoughts and feelings about their desires and interests in the family assets. The mediator encourages parties to be honest about their fears, their differences and their hopes for the future. This becomes an emotional meeting. The children are upset that their father is not taking their interests into consideration. The father expresses his wish to make everyone happy, and also his anger at his perception that his children are trying to dictate to him what he should do. In private caucus with his attorney and the mediator, he devises an outline of a plan, which he thinks can be a win-win for the entire family.

After much brainstorming and discussion, the family agrees to a plan whereby one-half of the ranch will be sold and the proceeds will be put into a life estate for the mother, along with the other assets, and the other half of the ranch will be developed by two siblings into a working vineyard to be named after their father. The third sibling will put up working capital for the project and share in the profits and he will come in the summer and run a fresh air camp for inner-city children at the ranch.

After the mediation concludes, the father's estate attorney creates the various estate planning instruments to effectuate the plan. By using mediation, the family has improved communication between family members, increased family teamwork, created opportunities to promote maturity and responsibility of the children, increased the financial well-being of testator and his wife, and created a way to honor their father's memory after his passing.

The use of mediation in estate transfer and elder care issues is one of the tools we should consider using to assure a result that is equitable, realistic and acceptable to the key parties. Mediation is an effective approach because it is a holistic process that encourages all of the issues - financial, legal and emotional - to surface in resolving disputes or planning a family's future. Mediators are trained to frame issues in terms of the interests of the parties, and to bring hidden agendas and long-standing unresolved emotional issues to the surface. Indeed, mediation is the only dispute resolution process that offers the probability of a solution that includes reconciliation.