All families get caught in conflicts at some point. Be it a dispute regarding a decedent’s will or a family business, taking a family conflict to court can only aggravate it, not resolve it.
Mediation might be the best option to resolve family conflicts. It keeps all personal information, sentiments, and dirty laundry private.
In fact, the process of mediation corresponds with the biblical teachings of conflicts resolution.
So, what does the bible say about mediation? The bible encourages voluntary reconciliation when it says, “First go and be reconciled” in Matthew 18:15. It prioritizes unity over individual interests by calling people to listen, discuss, apologize, and forgive (Proverbs 18:13 – James 1:19 – Colossians 3:13)
But how does family mediation work exactly?
Here’s a comprehensive guide to inheritance, business, and property disputes mediation and the mediation process.
You might also enjoy reading about alternative dispute resolution (ADR) methods such as Arbitration, Med-Arb, and Conciliation, and ADR providers worldwide.
Want to see examples of mediation and arbitration in the real world? Check out how AliExpress, Alibaba, Shein, Amazon, Upwork, Freelancer.com, Paypal, and eBay use ADR to resolve disputes on their platforms.
What Is Family Mediation?
Family mediation is a dispute resolution process dedicated to resolving family-related conflicts such as divorce, will and inheritance disputes, estate and property disputes, and others.
It can be court-ordered or voluntary. In both scenarios, mediation is nonbinding unless a written and signed agreement is produced.
Family mediation is led by a partial and professional mediator, usually a retired judge or attorney, whose job is to facilitate negotiations between the conflicting parties and help them work out a resolution.
The mediator’s role is very different from that of a judge or an attorney. Unlike an attorney, a mediator doesn’t represent any party, doesn’t give advice, and has no allegiance to any party. Unlike a judge, a mediator doesn’t make decisions.
Mediation can be an excellent alternative to court and litigation, especially for families. It is a private, non-binding, and informal process whose outcome is in the family’s hands alone.
And unlike courtrooms, mediation is not stressful. That’s because meetings can be held separately or jointly depending on the parties’ preferences.
You will also be free to negotiate all you want, and the mediator will never force you into a settlement that you don’t want.
As previously mentioned, all family disputes are eligible for mediation.
Here are some examples of family conflicts that are settled through mediation.
Inheritance and Will Disputes Mediation
According to Nelsons, mediation is the most common method of dispute resolution when it comes to inheritance and trust disputes.
Inheritance disputes occur when a decedent’s beneficiaries and family members or friends are in a disagreement about the distribution of the decedent’s estate.
Inheritance disputes are caused by perceived inequality of distribution, will interpretation, and lack of documents.
Inheritance disputes mediation can be initiated voluntarily by a family member or ordered by a court. Either way, the process remains the same.
The Most Common Inheritance and Will Disputes
Inheritance and will disputes can be any of the following:
- Property distribution:
This dispute happens when one or more of the decedent’s beneficiaries believe they should receive a particular property or a particular provision while the will states otherwise.
- Validity of the decedent’s will:
In the cases where the will doesn’t follow the legal criteria, the beneficiaries can challenge the validity of the will in the process known as the will contest.
- Lack of capacity:
One way to challenge the validity of a will is by claiming that the decedent didn’t have the testamentary capacity when drafting the will. Testamentary capacity is the person’s ability to understand three basics: they are writing a will, the nature of their estate, and their beneficiaries.
- Undue influence:
In the case where a decedent changed their will because of a third party’s influence, the beneficiaries can dispute the will’s validity for the undue influence.
- Estate executor or representative disputes:
In the case where the decedent had appointed a representative or an executor to manage their property after their death, the beneficiaries can dispute the decedent’s choice.
Mediation has the ability to address the underlying personal issues that are causing the conflict in a way that’s unattainable in courts.
Preparing for an Inheritance and Will Dispute Mediation
- Get copies of every relevant document, such as property documents and the decedent’s will, in any.
- Read the decedent’s will very carefully and seek help in case of ambiguities
- Gather evidence and supporting arguments and talk to possible witnesses
- Consult an attorney, especially if legal issues are involved
- Prepare your case and your opening statement
- Determine what you aim to achieve and your bottom line
- Determine what you’re willing to compromise
Keep on reading to learn about the mediation process and why mediating will save your inheritance money.
Family Business Disputes Mediation
Family business disputes can arise due to personal issues as much as business-related ones. Such issues can be primarily due to rivalry between the family members, the power hierarchy, and succession.
Family business conflicts have destructive effects on the business and the family. They can lead to the failure of the business, rupture of family relations, and freezing of assets.
Mediation could be a very effective dispute resolution mechanism for family business conflicts because it has the ability to resolve personal and intrafamily problems as well as business ones.
The Most Common Causes of Family Business Disputes
- Decision-making and the future strategy of the business
- The business performance of a family member
- Remuneration
- Conflicting interests
- Poor communication in regards to business issues
- The management of profits and investments
- The place of in-laws and spouses in the business
- Succession and choosing the next leader
Mediation can work to resolve conflicts as well as to prevent them, especially in the case of family businesses.
The process of mediation demands the active contemplation of the future, the assessment of all points of view and perspectives, and the venting of all unspoken views.
Estate Disputes Mediation
Estate disputes usually occur within families, and most commonly after a loved one passes. In addition to the will disputes discussed above, disputes regarding the administration of estates may also arise.
These disputes usually involve the executor (or executors) and the beneficiaries, or the beneficiaries only.
Such disputes can be in regards to:
- Managing business and property
- Selling of property
- The executor’s estate administration and choices
- Superannuation
According to DDCS Lawyers, mediation is the most common dispute resolution process that they, as lawyers, get involved with. Most people who find themselves in estate disputes choose to keep courts as a last resort.
Instead, negotiation and mediation are preferred.
Approximately 80% of family-related claims are resolved in mediation and do not make it to courtrooms.
DDCS Lawyers
Preparing for an Estate Dispute Mediation
Preparing for an estate dispute mediation is not very different from preparing for inheritance or will dispute mediation.
Here are some things you need to consider before the mediation:
- If mediation is your idea, make sure to inform all the beneficiaries and executors concerned and get their agreement.
- Identify the issues underlying the dispute.
- Get all the relevant information regarding the estate, the assets, their size and valuations, and liabilities.
- Gather factual information on the administration of the estate by the executor/s.
- Get informed about taxes such as capital gain tax and inheritance tax
- Prepare your statement and pre-empt any questions that the involved parties may pose.
The Process of Mediation
According to Nolo, one of the USA’s first online legal guides, mediation is a six-step process.
These are the six stages of mediation
- Opening statement by the mediator:
When all the participating parties in the mediation are seated, the mediator proceeds to make the opening statement. This includes introducing the participants, explaining the rules and goals of the mediation, and inviting them to work toward an agreement.
- Opening statements by the involved parties:
Each party starts by presenting and describing the dispute from their perspective, their concerns, and the potential consequences of the conflict. Each party is required to listen to the other without interruption.
- Joint discussion:
This step can only take place depending on the receptivity and openness of the parties to discussing and negotiating at this early stage. The mediator invites the parties to discuss the party’s opening statement.
- Separate meetings:
The mediator meets each party separately in separate rooms. They will discuss the strengths and weaknesses of each party’s position, take their offers to the other party, and exchange their negotiations. The mediator will only share the information you agree to share with the other party.
- Joint negotiation:
After the separate meetings, the parties are brought back to negotiate directly. This stage might or might not take place depending on the case and the parties.
- Closure:
If the negotiation is successful and the parties reach an agreement, the mediator might put the agreement into writing and ask the parties to sign it. If no written agreement is produced, the agreement reached through the mediation remains non-binding and unenforceable in court. If the negotiations fail, the mediator will discuss the possibility of meeting again and whether it would be fruitful.
Mediation Expected Fees and Costs
Mediation fees and costs vary from one center to another and from one place to another.
These are are some ADR and mediation centers in the United States and their costs:
United States Arbitration and Mediation (USAM):
- A case management fee of $250 paid by each involved party
- Mediators are compensated at the rate of $300-$500 an hour.
- Optional lunch fees of $11 per person
Cleveland Mediation Center (CMC):
The fee for family mediation is set at $225 per 90-minute session split between the involved parties.
Massachusetts Dispute Resolution Services (MDRS):
Fees include:
- A pre-payment of $575 per party for the first two hours with one neutral/mediator.
- Additional hours are billed at the rate of $225/hour per party.
- A full day of mediation with MDRS, up to 7 hours, is $1550 per party, paid in advance.
Other fees such as room or luncheon fees may incur.
There are also non-profit mediation centers that offer mediation services for free.
Here are some free mediation centers:
- The Centre for Mediation and Dispute Resolution CMDR (also known as Boston mediation) in Boston, Massachusetts
- The New York Peace Institute in Brooklyn, New York
- Center for Conflict Resolution CCR in Chicago, Illinois
Expected Resolution Time
Mediation is a time-effective process. Depending on the type of conflict, the mediation process can take anywhere from hours to days.
Still, mediation, including preparing for it, is concluded in a much shorter time than court litigation.
Why Is Mediation Better Than Litigation for Families?
To prepare this article, we read and scrolled down tens of mediation and law pages. If there’s one thing that lawyers and mediators agree on, it would be that mediation is indeed a better, if not the best, option for resolving family disputes than court litigation.
Here’s why:
Cost
Compared to court and lawyers’ fees, mediation is a lot cheaper. Its affordability makes it more suitable for families, especially for large and complicated disputes.
Time
Preparing for and attending mediation sessions consumes much less time than trials. There’s less paperwork involved, fewer protocols, and fewer people involved. And depending on the severity and complication of the dispute, mediation can conclude in a few hours or a few days. You are always in control of the process and the outcome.
Flexibility
The disputants in mediation are in complete control of how the mediation concludes. Families often have personal issues underlying their disputes, and mediation can handle these issues much better than the rigidity of courts. Mediation is also flexible because it is non-binding until you and the other party decide otherwise.
Informality
While mediation is as serious as litigation, the process is much less stressful and constraining. There’s no law, judge, or lawyer to govern or control how the dispute is handled or concluded.
Confidentiality
Mediation is a private process, just as much as family disputes. Nobody except the involved parties can attend unless otherwise desired by the parties. Moreover, the agreements made through mediation usually contain a confidentiality clause to keep the settlement and its terms confidential.
Preserving Relationships
Family disputes are very complicated. That’s because they involve people who know each other and probably will continue to see or live with each other after the dispute is resolved. Mediation is a great way to resolve such disputes without causing a rift between family members. The mediator will work to maintain their relationship, clear any misunderstandings, and work out a satisfactory solution for all the affected members. Trials can only cause the opposite for families.
Is Mediation the Best Solution for You?
Whether mediation is suitable for you depends on what you’re expecting as a resolution. This article detailed the upside of mediation and why it’s a great option for family disputes of all types. The reason being is its flexibility, cost and time effectiveness, relations restoration, and confidentiality.
If these outcomes seem good enough for you, then mediation is for you.
If you expect a large settlement sum, for example, in estate or inheritance disputes, mediation might not bring you the best outcome.