Why Mediation is Better for Resolving Estate Disputes
by Burke Johnson, Esq.
Litigation of disputes related to decedents’ estates is increasing. The assets over which many baby boomers are now fighting, left by frugal depression era parents, can be significant. This older generation saved money and as a result, many estates are larger, and each child wants his or her “fair share.” Family dynamics have also changed. Families are no longer as close as they once were. Siblings move from their homes of origin across the state or even across the country. They do not stay in touch. It is often easier to fight with a family member not seen in years than with one who lives in the same. Similarly, with the increase of divorce and second marriages, there is more willingness to fight with a deceased parent’s surviving second spouse or step-siblings. Finally, for many people, an inheritance has become something that they expect. They have been counting on it and will fight for it.
The idea of using “alternative dispute resolution” to settle estate disputes is not new. Indeed, no less than the Father of our Country, George Washington, included a provision in his own will for resolution of any issues that might arise:
“But having endeavored to be plain, and explicit in all the Devises, even at the expence of prolixity, perhaps of tautology, I hope, and trust, that no disputes will arise concerning them; but if, contrary to expectation, the case should be otherwise, from the want of legal expression, or the usual technical terms, or because too much or too little has been said on any of the Devises to be consonant with law, My Will and direction expressly is, that all disputes (if unhappily any should arise) shall be decided by three impartial and intelligent men, known for their probity and good understanding; two to be chosen by the disputants, each having the choice of one, and the third by those two. Which three men thus chosen, shall, unfettered by Law, or legal constructions, declare their Sense of the Testator’s intention; and such decision is, to all intents and purposes to be as binding on the parties as if it had been given in the Supreme Court of the United States.
The use of mediation to resolve estate disputes is preferable to litigation for many reasons.
Mediation allows participants to control the outcome. Litigation puts it in hands of judge or jury. No matter how experienced the attorney, none has the ability to predict exactly how a judge or jury will find in any given case. Resolving issues at mediation provides the clients with total control over the outcome.
- Time and Expense
Mediation can achieve results much more quickly than litigation. As the saying goes, “time is money.” The longer litigation lasts, the more expensive it becomes. Consider, for example, the “Gaines Cases” rooted in a bigamous marriage that occurred in eighteenth century New Orleans. The estate litigation spanned approximately fifty years and generated multiple opinions from the United States Supreme Court. More recently and closer to home, the death of a successful Georgia businessman in 2004 generated litigation that has spanned over seven years and resulted in three opinions from the Georgia Supreme Court.
Except in certain limited cases, documents filed with Georgia’s courts are public record. Similarly, Georgia’s courtrooms are open, and except in certain limited cases, all of the evidence presented in a trial or hearing is subject to becoming public knowledge. In estate litigation cases, this can result in the “airing of dirty laundry” that a family might prefer to keep private. In contrast, mediation is a private process. The parties can control the release of information and the mediation session is attended only by those involved and is not open to the public, provides the advantage of privacy.
Similar to the privacy issue, nothing that is contained in public filings or revealed at a hearing is confidential. Except in very limited circumstances, nothing that is said in the mediation session can be revealed outside of the mediation or used by or against either party at a later date in the event that the mediation does not result in a settlement. This gives the parties the incentive to share openly.
- Preservation of Relationships
Many estate litigation cases involve parties who are adverse to each other and who have no significant past relationship and no desire to continue in any future relationship. However, many cases involve siblings or other family members who were fairly close to each other until the death of the family member giving rise to the estate dispute. In these circumstances, typically, the longer the litigation goes on, and the more negative charges are hailed at each other, the relationship suffers. Mediation can help avoid this and allow the parties to repair the relationship.
In conclusion, everyone who practices in the area of estate litigation should encourage their clients to use mediation as the preferred method of resolving their disputes.
Burke Johnson, Esq. is a mediator with Miles Mediation in Atlanta. He has over 30 years of experience handling cases of all complexities and sizes, including automobile, motorcycle and trucking wrecks; premises liability actions (including cases involving claims of negligent security); product liability claims; construction defect claims; commercial general liability claims; professional liability claims; insurance coverage matters; life, health and disability insurance claims; ERISA benefit claims; business and commercial disputes; elder care and adult guardianships; probate and estate litigation; and family law matters.
To learn more about Burke or to schedule a mediation, please call 678-320-9118 or visit his online calendar.