All mediation can be emotionally difficult, but perhaps one of the most emotionally charged mediation situations is estate mediation. The death of a loved one is difficult regardless of the matters concerning the estate, and adding a dispute about the estate escalates the emotional difficulty of the situation. This also contributes to the people involved making rash decisions and saying and doing things they might later regret.
Estate mediation is the process of mediating disputes related to an estate. Estate refers to the property of a deceased person. Disputes regarding an estate may involve beneficial interests, distribution of property, legitimacy of the last will and testament, and any other issues resulting from the death.
How estate mediation may differ from other mediation includes the number of parties and the emotional intensity. There may be more than two parties involved in the mediation and the emotional intensity those parties bring to the mediation might be great. For mediators who wish to do this work, it is helpful to have strategies about how to manage the emotions of the parties and ensure each person involved has an equal opportunity to share their concerns.
Another aspect of estate disputes that can increase the difficulty is the presumptions that the parties may have about the deceased person’s wishes. Even when a person leaves behind a last will and testament, some interested parties may disagree with the contents of the will. They may feel there was undue influence on the deceased person when they were making the will and they feel that the instructions therein are not properly representative of the deceased person’s wishes. This can certainly complicate the mediation because there is no way to verify what the deceased person’s wishes were other than their last will and testament. It is helpful for the mediators who do this work to strategize on how to move people away from their positions and toward their shared interests.
Courts do not want to see estates languish in litigation because whatever the deceased person’s wishes were, they most certainly are not for their property to be wasted away by their heirs litigating. If someone is concerned about undue influence or other concerns about the deceased person’s last will and testament, it is helpful for them to receive legal advice, however, it is important for them to understand that litigation can waste any inheritance they may receive. It is helpful to have conversations about how to manage concerns about the estate without taking it to court. If mediation is not the preferred dispute resolution option, parties can choose to explore arbitration as an option. The goal should be to resolve disputes while preserving as much of the property in the estate as possible for the beneficiaries.
Mediators work with parties to determine each person’s interests and brainstorm options to achieve as many shared interests as possible. The mediator must navigate the conversation away from rights and toward each person’s needs. It is also important that the mediator understands the legal framework and how that might impact any agreements the parties come to. It may be fine for the participants in the mediation to come up with various agreements with each other, but the legal framework may not endorse those agreements. For example, if the deceased person disinherited someone in their last will and testament, it may not be within the parties’ power to distribute the property differently. It is therefore helpful for each party to receive their independent legal advice, and to use mediation as an opportunity to discuss their needs and interests with the proper legal information and understanding. This will better position the participants to have productive conversations within the mediation process.
If parties choose not to have legal advice, it is helpful for the mediator to have a basic understanding of the legal framework related to estates in their jurisdiction. Though mediators do not provide legal advice, they may provide information to the parties that can help move them toward a resolution. Mediators who know the legal framework can also use that as a means of reality-checking with the parties when their suggestions for settlement are too far outside what would be legally appropriate in the circumstances.
Mediators must also be prepared to assess the parties’ capacity to participate in mediation. In the context of estate mediation, some parties may not be able to participate in the mediation because of their emotional state. It is not the job of the mediator to judge whether someone is emotionally able to participate, but in the intake process, they may suggest that parties take more time before engaging in the process. Ultimately it is the parties’ right to self-determination whether they feel emotionally ready to participate in mediation. If the mediator senses that parties are emotionally underprepared to participate effectively, the mediator should strategize on how to help the parties have productive conversations through their grief and other emotions. Grief may manifest in certain individuals as fear, anger, or other emotions. Their responses may not be appropriate. The mediator needs to be prepared to manage various emotional responses and know what behaviours they are comfortable with managing. As with all mediation, the mediator should help the parties establish ground rules for the process and communicate what will be appropriate and inappropriate. If the parties’ self-established guidelines are not followed, the mediator can direct them to the guidelines and check in with the parties to see if they still want to follow the guidelines they developed or if they would like to change them. This allows the parties to maintain their autonomy and right to self-determination while maintaining emotional safety for all those involved.
All mediation can be emotionally difficult, and mediators must be prepared for the emotional intensity of the matters they mediate. Estate mediation requires the mediators to have a basic understanding of the legal framework and a comprehensive plan for how to help their emotionally escalated clients have productive conversations about the dispute at hand. Through education and professional development, mediators can successfully help people to resolve disputes related to estate matters.
For more information about estate mediation, check out these resources:
- Wills & Estates – Saskatchewan Courts
- The Administration of Estates Act
- Best Practices in Estate Mediation and Documenting The Settlement – Whaley Estate Litigation Partners
- Mediation – The Better Way in Estate Disputes – Whaley Estate Litigation
- Beyond the Five Stages of Grief: Best Practices for Estate Mediation and Advising the Bereaved Client – Osgoode Legal Studies Research Paper Series
- Undue Influence Canada – Estate Litigation Series
