Fisher Mediation
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Conflict Management in Family Inheritance Wars

by Paul Fisher, Edited by Judith Stalk

In a contested estate matter, emotions can run incredibly high. Families leave the probate/estates litigation process exhausted and embittered. A contested estate matter is financially expensive, emotionally draining and the goals of the testator may have been frustrated in the process. Some family relationships may be destroyed.

Perhaps there is a better way to provide estate planning clients more certainty about the future of their estates, and to provide families with peace and security for the future. Perhaps for clients in contested estate matters there are means to manage these conflicts in a less financially draining and emotionally destructive manner. When estate claims are resolved sooner, families will have spent fewer financial and emotional resources on the conflict. Managing estate conflict – both existing and potential conflicts – presents the possibility to deliver much more financial and emotional value to clients, provide higher client satisfaction, and higher personal satisfaction and more client referrals to the practitioner.

This is the first in a series of articles. The series will provide an overview of Estate Conflict Management workshops and interviews with almost 400 estate planning attorneys, estate litigation attorneys and other professionals. The workshops and research are continuing. Thus, this is a preliminary report which will be updated after additional workshops have been completed.

Conflicts within a family can surface during the estate planning process or following the death of a testator. However, there are alternative moments in time during which estate conflicts can be addressed. Each of those moments carries its benefits and disadvantages. Additionally, the series will discuss processes to help avert litigation and related ethical issues.

Context of This Series

A few words about the title and the words “conflict management”. The traditional description of modern alternatives to litigation is “alternative dispute resolution”. Over the years attorneys and mediators have learned that some disputes cannot be resolved. However they can be managed. A more practical description of alternatives to litigation in the context of estates conflicts is “conflict management” as opposed to “conflict resolution”.

The origin of modern alternative conflict resolution lies with Frank Sander, who observed the great financial and emotional toll trial took on his clients. He concluded “there has to be a better way”. His ABA Journal article “The Multi Door Courthouse” was a watershed moment in alternative dispute resolution. Sander’s innovative theories proposed a court system that helped direct disputants to the most appropriate route to resolution: the parties and their attorneys would be provided the choices of arbitration, mediation, early case evaluation, or litigation. Sander was the first director of the Project On Negotiation (PON) at Harvard Law School, its department of alternative dispute resolution.

What’s in it for me?

This series of articles comes about because I, too, have seen how litigation takes its very costly financial and emotional toll on parties. I personally experienced probate litigation from the party’s perspective when I was in litigation with my brothers over our parents’ estates. The litigation cost a small fortune and destroyed my relationship with my brothers. Having come through family wars, mine and those of countless other families, I have reached the same conclusion as Frank Sander, “there has to be a better way.”

Having practiced law for many years, having served as an arbitrator on almost 200 cases, and having mediated many hundreds of conflicts, I would like to leave a positive impact on the profession and on conflict management. Through education and research, conducting Estate Conflict Management workshops, writing this series of articles, and eventually teaching a course in Estates Conflict Management, I hope to raise the consciousness of those whose job it is to guide their clients in the estate planning process or to represent their clients in estates conflicts.

What’s In It For the Attorneys, Estate Planners and Estates Litigators?

Estate Conflict Management presents the opportunity to create more options for practitioners and more value for clients. What does this mean in the context of estate planning, estates litigation and estate conflict management? What does the customer/client really want? What is the cutting edge service that the practitioners reading this now can immediately begin providing to their clients in terms of estate planning, estates litigation and conflict management? What new choices will you be able to provide to your clients at the end of having read this series?

How can we add value to your services as advocate and counselor? What new issues can you consider that are not customarily considered by estate planning practitioners and estates litigators? And therefore how can you add value to your counseling and advocacy? A primary goal of this series is greater client satisfaction. Another goal is to avoid malpractice claims and prevent future problems while resolving or managing existing disputes. Ultimately, through greater client satisfaction there will be greater economic and personal benefit to the practitioner.

Gerald LeVan, an estate conflict management practitioner in North Carolina comments, “estate advisors have always had a financial stake in the healthy wealth of their clients. Families who manage their relational estates well tend to retain their advisors. Those families with problem relational estates don’t.”

Final Context Note

Probate courts are the land of broken dreams – the arena in which the testator/settlor’s plans are laid waste by conflict and attorney fees, and families relationships are in ashes.

Preview of Chapter 2: “Is there a better way?” What are the alternatives?

Based on discussions at past workshops, there are no clear answers. There are intense debates, diverse opinions and little consensus. One definite conclusion: the more intense and diverse the debate, the more intellectually stimulating an idea is; the greater the debate, the greater the need for more conversation before reaching conclusion.

Theory 1: Due to ensuing conflict sometimes the intent or expectations of the testator, heirs/beneficiaries, (soon to be) contesting parties are not met.

Theory 2. Ensuing conflict impacts the estate, heirs/beneficiaries, disinherited and (soon to be) contesting parties, trustees, and attorneys and other estate planning professionals who represent each of these parties.

Paraphrasing Frank Sander, “is there a better way?” What are the alternatives? What is the value in considering “is there a better way?” During the estate planning process, if conflicts are anticipated, what are the choices as to when to address them?

We are all indebted to Catherine Waltrip. Catherine worked with me as a research extern from the Straus Institute For Dispute Resolution at Pepperdine School of Law. Catherine did some of the initial research in this area. Thank you Catherine.