Written on March 21, 2013 – 7:35 am | by Angelique Moss
Today’s post is by guest blogger Noel Semple. Noel holds a Postdoctoral Research Fellowship at the University of Toronto Faculty of Law, where he is also visiting scholar in residence with the Centre for the Legal Profession.
Mediation has become an important tool for resolving disputes about estates and aging. Most readers will know that mediation is a process in which a neutral third party (the mediator) tries to bring about a consensual resolution to a dispute, without having the authority to impose one.
However, it is not as widely known that there are (at least) two distinct approaches to mediation. In evaluative mediation, the mediator expresses opinions about the merits of each party’s case, and proposes specific solutions. If you have heard a mediator say “I don’t think any court would grant your demand for X dollars,” or “I think you two should settle for Y,” then you have experienced evaluative mediation.
Facilitative mediation involves a very different ideology and set of techniques. The premise of facilitative mediation is that the best resolutions to human conflicts are those generated by the conflicted parties themselves. Disputants should therefore be given, and encouraged to use, an opportunity to create their own solutions. This principle, known as “self-determination” or “party empowerment,” is at the core of facilitative mediation doctrine.
A facilitative mediator’s role is not to tell the parties what the solution should be, but rather to encourage the parties’ creation of their own solutions. This role generally includes structuring the mediation process and asking questions in order to improve communication between the parties. It does not include predicting adjudicated outcomes or evaluating the legal merits of the parties’ claims. For this reason, it is very important that a facilitative mediator possess communication and interpersonal skills.It is less important that she have legal expertise or authority.
In light of the interpersonal context of many estates disputes, estates practitioners should consider using facilitative mediation in the appropriate case. These disputes are often between relatives, and often have roots in grievances which long predate the death of the testator. They often involve people who once loved each other, who wish they could get back to speaking terms with each other, and who may regret the fact that they are only able to communicate through counsel.
Facilitative mediation is not magic. It certainly doesn’t promise to erase all of the animosity underlying estate disputes, which is often a lifetime in the making. But it does offer opportunity and encouragement to talk openly, including about the non-legal dimensions of the conflict.
This is one of the reasons why facilitative mediation has become so widespread in family law. Especially when there are children involved, opening lines of communication and repairing relationships can be just as important as the precise details of the settlement. If estates law really is “family law for dead people,” then perhaps estates practitioners should take a good hard look at this dispute resolution option.
Thanks for reading,
Follow Noel at @noelsemple or read more at www.noelsemple.ca. Noel is married to All About Estates regular Angelique Moss of de VRIES LITIGATION.