Negotiating in estate mediations.

By Colleen Cattell, QC

Estate disputes provide a textbook example of how people can achieve creative and enduring solutions for themselves if they are surrounded by the right process. They are also a powerful example of how today’s lawyers utilize not just advocacy skills but a multiplicity of additional skill sets to achieve resolution for their clients.

The obvious advantages of mediation are well recognized: avoiding the risk and stress of litigation; privacy and confidentiality; speedy resolution; and efficiency in resolving complex layers of issues (both legal and the underlying personal interests at stake), especially with multiple parties.

Studies show that parties in dispute prefer mediation for two key reasons: a higher degree of participation in decision-making and the ability to communicate their views to the other side. Stated more forcefully, parties in mediation take control over the process and the outcome rather than relying on the court to impose a decision. It is empowering and most parties are able to do just that with the help of their counsel and the mediator.

Most disputes arise because of a communication breakdown. The litigation process only makes it more difficult. Many litigants believe they can’t talk because there is a court proceeding, or find it just too difficult once the adversarial process takes over.

People come to mediation because they’re stuck. Participating in a mediation session is a process change. The content of the dispute is the same but the process change allows the parties to re-engage differently. It works because the mediator helps the parties to communicate and see the perspective of the other party. Sometimes people just need to try on a new lens, because the one they’ve been using just does not allow for any other views of the world.

In estate cases, the participants are families with decades of shared experience together. There is a lot of common ground. One common interest is that most people don’t want to be estranged from each other. When settlements are reached the relief is palpable. In estate mediation, the repair of past and ongoing relationships is a significant factor and, even when it is not an explicit goal, it flows naturally as an outcome when people are able to communicate with each other.

Lawyers use different skills in mediation than when they are presenting a case in court. They need to know the facts and law of their case as if preparing for a trial but the focus is on determining what their client really wants to achieve, which may not coincide with a legal position.

Lawyers need to advocate but not in an adversarial way. They will use a form of persuasive advocacy geared to achieving the client’s goal of persuading the group of diverse personalities in the room to come to their desired outcome. It is a complex negotiation, carried out with their clients, that requires analyzing and focusing on what the other side needs are from the negotiation and creating strategies, options, and solutions to get there.

Creative outcomes that are not available as traditional legal remedies are another hallmark of estate mediation. Lawyers can bring that creativity, together with analytical skills, legal expertise, a problem solving approach, emotional distance and highly effective communication and negotiation skills to the mediation table for their clients.

Colleen Cattell, QC, C. Med. Is a Mediator with Fitzpatrick & Company and mediates in a number of different practice areas.

This article was published in the April 2011 issue of BarTalk. © 2011 The Canadian Bar Association. All rights reserved.