Mediation in Estate Planning and Will or Trust Contests

By Gromala, John A. | The CPA Journal, September 2001 | Go to article overview

Mediation in Estate Planning and Will or Trust Contests


Gromala, John A., The CPA Journal


THE MEDIATOR HELPS THE PARTIES FACE IMPORTANT

PERSONAL ISSUES that would otherwise not be disclosed to, and addressed by, their advisors.

Using an independent mediator during the estate planning process and during will and trust contests can reduce the probability of family litigation, improve the paries' satisfaction, and avoid malpractice claims. Mediation in the early stages of disputes over the distribution of estates and trusts can save money for beneficiaries and preserve amicable rely tionships. The goal of retaining a mediator in estate planning is to prevent a future problem rather than solve an existing dispute. If there is current conflict among family members, mediation offers a solution that includes reconciliation. Although this article will focus on the family dynamics relevant to estate planning and distribution, the same anxieties are present when planning conservatorships, guardianships, powers of attorney, and prenuptial and postnuptial agreements.

Conflicting Needs and

Conflicts of Interest

It is dangerous to make assumptions at the start of the planning process. For example, a happily married couple might not have communicated about the division of their estate, or a prospective couple might not have discussed the terms of a prenuptial agreement at arm's length. People are often reluctant to raise sensitive topics within a close rely tionship. They avoid conflict to preserve ostensible harmony. Unfortunately, glossing over a problem today invariably spawns greater conflict tomorrow.

The data that individuals give to their accountants and attorneys are usually comprehensive and accurate, but their hidden interests and suppressed needs are seldom fully disclosed. The usual dynamic when representing clients with potential conflicts of interest may interfere with obtaining all the information required to determine their real interests and needs. For example, one spouse usually will not raise an issue known to be distasteful to the other in the other's presence, effectively concealing concerns from the professional. Couples engaged to be married often view a prenuptial agreement through rose-colored glasses that obfuscate their prior assumptions. Similarly, parents may make assumptions concerning their adult children's desires that have little relation to actual needs or are based solely on emotion. This could result in an estate plan based, in part, on flawed assumptions. Such oversights can result in future litigation and malpractice claims.

The Mediator's Role

A mediator recognizes the roles of accountants and attorneys and does not question their advice. The mediator's role is to assist the planners in drafting a plan that will accomplish the testamentary desires of the clients. The mediator confers confidentially with each person and with the parties jointly. Only authorized information is shared with the other parties. The mediation process can provide accountants and attorneys with valuable information about the parties' subjective interests and needs that should be addressed in the estate plan or the settling of a will contest.

A mediator explains the process to each person. Joint meetings and individual conferences are scheduled as appropriate. Other individuals might be interviewed with the approval of the parties and their advisors. The mediator helps the parties face and resolve important personal issues that would otherwise not be disclosed to, and addressed by, their advisors. Mediation assists the advisors in collecting all pieces of the family puzzle.

A mediator does not need to be an expert in estate planning, but does need to be familiar with its basic principles and terminology. Expertise in the mediation process and the unique ability to communicate with all the individuals involved in the process makes the mediator a valuable member of the estate planning team and settlement conference. …

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