It has been my experience that the emotional toll seen in litigation over probate cases is the major element often to be addressed and holds the key for case resolution. Money, family and emotions provide a firestorm waiting to happen. Estate planning is a process by which one generation passes wealth to others, usually their adult children. It has become a highly complex and specialized field in which tax and financial experts fine-tune plans to minimize taxes and maximize economic gain. The essence of what is transpiring within the family, however, often gets lost in the process. That essence is a gift from parents to children, or to their children’s children, to charities, and others. Parents who have worked hard and accumulated some measure of wealth are deciding to make their final gift to their children. It is the last note of a family-long song. It is something that could be celebrated but rarely is.
Even though parents spend hours upon hours and thousands of dollars conferring with attorneys and advisors to draw up carefully crafted estate plans, some of these plans simply go awry. Families are torn asunder by allegations, claims, and counterclaims. Litigation drags on for years. Attorneys and other advisors are sued for malpractice. What should be positive family experiences devolve into family horror stories. The horror stories have made many parents afraid of the process.
The “Art” of mediation can be applied both in estate planning itself (though rarely) or when the family’s fabric starts to tear under the stress of greed, litigation and misunderstanding. My most valuable tool for successfully navigating through these matters is intuition and patience. It is critical for the parties to have a chance to vent their emotions and fully express their desires and end goals. Unfortunately, there have been many times when the parties’ anger and upset prevent their ability to be in the same room with each other. Often opening statements are given separately and messages have to be carried between parties. It is of valuable import to have a pre-mediation strategy session with counsel to get a greater sense of the family dynamic in order to steer towards a successful conclusion. Patience is the key ingredient.