Tuesday, February 5, 2019
5 Reasons to Mediate Probate or Estate Situations
Imagine the following scenario - You are the son of an aging mother, who has begun to experience signs of dementia. You and your brother both believe it is time for your mother to give up control over her own finances and want to talk with your sister about obtaining a conservatorship for your mother. Your sister is reticent to pursue that course. You believe that is because your mother has been very generous with your sister, giving your sister many cash gifts. Your sister believes your mother is still able to manage herself, and also believes that you and your brother are trying to control your mother. You are concerned about your mother becoming the victim of con artists and overzealous sales people. You and your brother decide to go ahead and hire an attorney to file a petition to appoint you as the conservator for your mother, to handle her finances. This creates conflict between you and your brother on the one hand, and your sister on the other hand. Your mother is very upset when she sees the three of you arguing over these issues.
Was there an alternative course of action? Could you have handled the situation in a way that would have been less contentious with your siblings? Yes – you could have considered having a neutral third party (mediator or other professional) help the three of you and your mother through this very difficult circumstance.
This situation, and many other examples in our families, occur frequently, despite the best intentions of families to avoid conflict. With an aging population, and complicated legal and medical issues, we are faced with important decisions that seem beyond our capacity to resolve.
The alternative of a dispute resolution process that avoids fighting it out publicly in court seems an attractive one. This article describes five advantages of using mediation to decide these important family issues.
- Privacy – Mediation takes place in a private setting. The parties sign an Agreement to Participate in the process that includes an agreement that what is discussed will remain private.
- Relationships – Mediation presents the opportunity to maintain positive relationships between all parties. It provides a safe space to discuss interests and concerns as it relates to the issues in dispute, and to generate options to resolve the dispute that are geared to the specific people involved.
- Creative solutions – The parties can develop unique and creative solutions to the issues based on a more intimate familiarity with the people and situations.
- Reduced Cost – Alternative dispute resolution is almost always much less expensive for the parties than litigation, by a significant amount. This allows more resources to be available to help the family.
- Quicker resolution – Often court proceedings can take several months, or even years. Mediation is scheduled at the parties’ convenience and can be completed within weeks.
If you or a family member would like to find out more about how mediation can help you with your family’s decisions about aging parents, estate planning, family business, or other similar matters, please contact Massachusetts Council on Family Mediation, www.mcfm.org, or the Massachusetts Collaborative Law Council, www.massclc.org.
Melinda Milberg, Esq. is an attorney and Mediator with an office in Natick, MA.