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Executor Road: Alternate Dispute Resolution for Estates

Executor Road

Executor Road: Alternate Dispute Resolution for Estates

Estate Dispute | 5-minute read
Mediation | Family Preservation| ADR

You’re in the back seat of the family car.  Mom and Dad up front.  Your brother just took your GI Joe and you’re done.  At breakfast he ate your bacon while you were in the bathroom and thought it was funny.  He’s a pain in the butt.  The only thing holding you back is your baby sister asleep between you and potential consequences from the front seat.  But you’re right.  He’s wrong, and you’re tired of his crap…

40 years later you’re a beneficiary of mom’s and dad’s estate along with your 5 siblings.  You get along with your older brother now, but your sister doesn’t, and the 3 youngest have their own dynamics, and spouses.  It’s a bit more complicated.  Plus, the estate attorney just notified everyone of a letter received from your little brother’s attorney.  Things are getting dicey.  Feels like the back seat of the car again, but Mom and Dad aren’t in the front anymore. In fact, no one’s driving, and you’re careening toward a cliff.

Litigation Cliff

Before you know it, the attorney letters are flying at-a-cost of $350-$500/hour. Motions and filings start to mount up.  Then more attorney letters and filings about who’s paying for the attorney letters, motions and filings, and the estate attorney bill grows and grows.  Less $$$ for everyone.  It’s a big fat Gordian knot no one seems able or willing to unravel.

When an estate has issues it is unable to reconcile, a judge may order mediation.  In some states and jurisdictions, it may be that mediation is required before the estate can proceed with litigation proceedings.  By the time that court-ordered mediation is required, positions may be deeply entrenched and more difficult to work through.

Of course, there is the option of the heirs saying,

You know, this is stupid.  Attorney’s fees are chipping away at the estate.  Everyone’s getting angrier.  Relationships are suffering.  Let’s find a Neutral and mediate.

You don’t have to wait for the court.

What is Mediation?

Mediation is a form of Alternate Dispute Resolution where parties voluntarily agree to meet with a mediator, or “Neutral” for the purpose of reaching an agreement on disputed matters.  Mediation is voluntary, so there is no pressure or mandate to agree.

If parties don’t come to an agreement, the likely result is they are back where they started, minus costs of the mediation.

One can conjure the costs of ongoing litigation compared to the costs of mediation.

Alternate Dispute Resolution

Potential costs of litigation may sway sides to consider an alternate way.  Also, factor in what taking it to court may do to the family whole.  You’re likely not going to get the satisfaction you’re seeking.  Litigation is a gut-wrenching experience and wreaks havoc on families.

Unless you’re experienced with the legal process, you may be under the impression that litigation is an event.  It is not.  It is a process.  It is a process filled with claims and counter-claims, filings and delays, tactics and gamesmanship.  Just when you think you’re close, you’re not.  “Well we’re going to court today to get this settled.”  Sorry, but, “LOL.” Not bloody likely.

You’re more likely to walk out of the courtroom with less control, relationships a bit more damaged, and you a bit more aggrieved.  Plus, what’s 6 hours x $500? Plus travel time?  Plus prep and follow-up hours?  Assuming you can get things settled this time.

The alternate path to this: sitting down, getting a little uncomfortable, conceding this and that, accepting this and that in return, and be heard.  The best mediators make sure all voices are heard.

It may seem hard.

Choose your hard.

What’s also at stake?

How weird is it going to get?  You may have conceded that the relationship with your sibling may have already sailed irretrievably over the edge, we hope not.  But what about the next generation?  What about the cousins?  What about the family as a whole moving ahead?  Estate disputes have a nasty way of damaging family ties irreparably.

Let’s just say it…

The estate settlement phase is a difficult time for a family and individuals.   The family is inexorably changed.  The context is new, there’s a void, and everyone is grieving, albeit in different ways.  We’re simply not at our best.

As a family reconvenes to sort out the estate, individual expectations are in play, hardwired relationship dynamics reprise, and it’s emotional.  Even the healthiest relationships can be tested under these circumstances.

Conclusion

But you’re right, your spoiled little brother is wrong, and you’re tired of his crap.

But bear in mind – righteous indignation is a big expense.

PS

The fantasy of the judge banging the gavel and pronouncing that you were right all along, your brother is an idiot, and the redemption you seek for everything from the bacon to the recent disruption in your life isn’t coming.

Also, attorneys are not going to say, “Have you considered mediation?  All these billable hours are getting out of hand.

Read Also: Mediation – How to Resolve Estates Disputes Effectively And Efficiently Guest Blog by Ana Sambold, esq.

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