Here I am saying that mediation is a good first option for family disputes.
But someone’s asked recently what sorts of disputes does mediation work best for.
And that’s a fair question. Here’s my answer.
The first type of dispute suitable for mediation is one where the relationship between the people involved is really important.
Take a brother and sister arguing about inheritance from their mother’s estate.
Litigation will unavoidably poison their relationship.
This is partly because people are required to argue against each other.
Partly because a court case takes a long time – years.
Partly because as soon as lawyers are involved, brother and sister stop talking.
And partly because losing a court case – having to pay everyone’s legal costs – is a frightening possibility.
Brother and sister in this case might be willing to jettison their relationship with each other. But what they risk by fighting is preventing their children have a normal healthy relationship with their cousins.
By agreeing to mediate early neither party is giving anything up.
What they are doing is committing to a process in which they will work together to tackle a tough problem and which recognises that their relationship is important.
In fact, a mediation gives them a greater opportunity to say what they want and need to say that they get in the narrow confines of the legal process.
The second feature of a dispute well suited to early mediation is where people are arguing over a fixed sum or asset or pool of assets.
The most common example of this is divorce. But it’s also true for disputes involving a deceased relative’s estate. And people who have made an investment together in say an investment property.
The trouble with litigating these cases is that the fees of all the lawyers usually needs to be paid out of the matrimonial assets or estate before anyone else gets anything.
This can reduce the amount available for division considerably just because people usually have to have separate lawyers.
And it can have a dramatic effect on the amount available for distribution if the legal case goes all the way to trial by which time hundreds of thousands will have been spent on lawyers.
If you can then solve this problem without it becoming a legal case, there will be more to be divided up at the end of the day.
The third feature that means a dispute is suitable for mediation is where people want to grasp the nettle and sort out the problem quickly.
Sometimes, that’s because people don’t want to be in dispute with members of their family.
Sometimes because people want to keep their affairs private.
Committing to mediate gets everyone into a results driven / problem solving mind-set.
People might think that a complicated case isn’t suitable for mediation. For instance an estate which deals with assets in different jurisdictions or where trusts are involved.
But the way we deliver mediation makes room for people to take advice from tax specialists or other advisers whilst remaining in a solutions orientated environment.
We’ve had one for instance where relatives reached an in-principle agreement and we all accepted that they then needed to take tax advice to work out the best way of implementing the terms.
So that’s three sorts of dispute suitable for mediation. Where the relationship is of paramount importance. Where there’s a fixed pool of assets. Where people want to solve the problem fast.
Any questions, please give us a call.