McLellan Herbert, Barristers & Solicitors
McLellan Herbert, Barristers & Solicitors
Serving Clients’ Estate Planning And Litigation Needs
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Mediation Makes Quick Work Of Estate Planning

As the Scottish Bard said, “the best laid schemes o’ Mice an’ Men.”

In other words, even the most carefully prepared plans can, and sometimes do, go wrong. Estate planning is no exception.

People spend countless hours and thousands of dollars consulting with attorneys and advisers to carefully draw up estate plans – some of which occasionally falter.

Family relationships are strained by allegations, claims and counterclaims. Occasionally, attorneys and advisers are sued for malpractice. For years on end, litigation takes centre stage. What is already a difficult family experience can quickly descend into a nightmare.

The crux of these problems stems from a lack of communication (or miscommunication) among family members and between family members and their advisers.

In the estate planning process, mediators are perfectly positioned to assist planners with the foundational work of clarifying the interests of the benefactors and their potential beneficiaries, thereby increasing the chances of overall satisfaction with the plan that is created.

Mediation is an informal, flexible process directed by mediators who are neutral and work for the common good of all the parties involved. Mediators do not give advice, but they do encourage the parties to reach agreement.

Mediation is recommended whenever there a large estate is involved, a potential conflict of interest surfaces during the estate planning process or complex family circumstances (such as ‘blended’ family structures) exist.

Barring any unwelcome surprises, mediation tends to go quickly and the estate planner can proceed with confidence that the plan constructed will meet the needs of all the parties involved. In this way, mediation can speed up the estate planning process, even though it adds another step to it.

Because mediated solutions are normally found in considerably less time than those resulting from litigation or arbitration, the costs incurred are typically much lower.

Mediation keeps family matters private. Disputes are resolved without court intervention and public scrutiny. Moreover, details of mediation sessions cannot later be admitted in court, which fosters an environment of openness and transparency among the parties.

Ultimately, mediation is collaborative and far easier on the relationships among the parties involved than adversarial proceedings, which are combative by nature.

Estate planning is not always straightforward and holds the potential for conflict and fall-out. Mediation is a valuable tool used to reach consensus forming an estate plan and requires a knowledgeable, professional and seasoned estate lawyer to avoid the pitfalls of litigation. If the matter has already proceeded to litigation, mediation is also a useful tool in resolving the dispute.