Dear Attorney Tully: I have a major problem with my family. My mother passed away recently. I did everything for her: I lived with her, I cared for her and made her comfortable for many years. My mother changed her will and gave everything to me because no one else in my family did anything for her. Now my brothers, who did nothing, are contesting everything. We have a big battle in probate court. What can I do?
ANSWER: Unfortunately, your case is not uncommon. Litigation can be extremely expensive and leave all parties involved feeling like nothing was resolved.
Sometimes disagreements and misunderstandings over elder care or inheritance issues can lead families to break apart, affecting descendants for generations. To avoid this, elder mediation is available to resolve family disputes that otherwise may go unaddressed or lead to costly and traumatic litigation. A successful resolution can preserve family ties to the benefit of the entire family.
Some families can work out these issues on their own, but many cannot, and the disagreements or hurts either fester or break out into open conflict and, occasionally, litigation. Resolution through mediation can bring much better results.
The mediator doesn’t make any decisions and doesn’t take sides. Instead, the mediator listens to the issues, keeps the family focused on the goals, encourages consideration of all the options, and helps clear up misunderstandings and address hurt feelings. Through this process, the family can come up with answers to problems or ways of solving conflicts. The idea is not to have a winner or loser, but to have a solution everyone is happy with. At the end of the mediation, a settlement agreement may be drawn up to memorialize the parties’ understanding. Because it is not a legal proceeding, the agreement is not binding, but the idea is to create an agreement that everyone will be happy to follow.
Mediators report that people often get stuck with their positions – that Mom should move to assisted living, that the vacation house should be sold, that they should get the family silver because their sister already got the china. The mediators may try to get people to move away from these fixed positions by asking them to start by stating their interests. Are they concerned about Mom’s safety? About saving money? About everyone getting exactly the same inheritance from Mom and Dad? About their own financial security?
By giving every family member the opportunity to express themselves without as much fear of the reaction, they can also hear one another better.
The mediation process is voluntary and is often undercut by the unwillingness of one or more family members to participate. It takes time, costs money and there’s no guarantee of success.
But skilled mediators can often bring families back together who otherwise would break apart forever. This can be well worth the time and expense and may be much cheaper and more pleasant than the alternative.
