Estate mediation may cause the parties involved to experience a lot of stress
Charles Ticker was recently interviewed about the stress parties may experience when taking part in a mediation (full video here). Estate litigation in general can be very stressful and expensive for the parties involved. In most cases, litigation is a new experience for the individuals involved. The litigants have also likely never participated in a mediation. By the time a mediation occurs, the litigation may have lasted months, if not years. Mediation is a common step in most cases as it is an opportunity for the parties to negotiate a resolution to their dispute. It is very important for clients to try to reduce their levels of stress ahead of the mediation and at the mediation. This allows everyone involved to better focus on the negotiation.
Although not as stressful as, for example, being cross-examined in Court, mediation has other kinds of stress associated with it. Estate litigation is stressful because of how emotionally charged it may be. The parties may be dealing with the recent passing of a close family member while at the same time litigating against other family members such as their siblings. They may have a lot of hostility toward each other and they may also not have seen each other for several years. Many people feel a lot of anxiety and stress about having to encounter an estranged family member, even if this encounter is not in person (mediations can be conducted via video conference). This may distract from the purpose of the mediation.
The mediator and the lawyers should make best efforts to reduce the stress experienced by the parties at a mediation
At the start of a mediation the mediator should make sure the parties are comfortable as they typically do not know what to expect. One of the roles of the mediator is to lower the temperature and moderate the emotions of the parties. Otherwise, it may be difficult to reach a resolution.
The lawyers also have a role to play in the process. In many scenarios the lawyers think they should be advocating on behalf of their clients at the mediation like they would be arguing in Court. That is not the purpose of a mediation. While lawyers should be protecting their clients’ interests, they also have a professional duty to encourage settlement. This means that the lawyers should be trying to reach a settlement for their clients (if appropriate), not arguing the case on the merits. The lawyers should not encourage their clients to be adversarial. The mediation should be the clients’ day and they should have an opportunity to be heard by the mediator.
The lawyers should prepare their clients and also manage their expectations for the mediation. If the parties attend the mediation expecting to get a result similar to winning their case in Court, these expectations can derail the mediation process. Mediation is not a trial and the mediator is not a Judge. The mediator is there to assist the parties and to facilitate a resolution. While mediation is part of the adversarial process, it should not be an adversarial experience. The parties are not there to sell their case to the mediator. It is a time for the parties to sit down, try and resolve a stressful situation, put the experience behind them, and move on with their lives. Mediation is a key opportunity to end the litigation and the associated stress and costs.