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Does Familiarity Breed Contempt?

Image of Last Will and Testament ready to sign

{3 minutes to read}  Estate battles generally lend themselves to great TV. No, what I really meant to say was that estate battles generally lend themselves to mediation. They take some unpacking since the issues that give rise to them are often years in the making. Maybe decades. There can be distrust, hurt feelings, greed, anger. There are in-laws whose membership in the family may be recent or of long duration. The parties often don’t want to be in the same room with each other, something that mediation – but not the courtroom – can accommodate. 

All mediations must allow for a certain amount of venting. That always raises a potential problem. Some venting in front of the other side can be useful. Especially if the mediator can take what is said and reframe it in slightly less derogatory terms so the other side might actually hear it. But such venting can also be alienating and dramatically turn up the heat. In the short run, that may be ok. However, some careful titration is often called for. How much anger can be expressed until the other side is incapable of listening and seething solely with a desire for vengeance?

Real life is different from TV. While the intrigue of family battles and larger than life personalities can make for good melodrama, most estate mediations play out subtly over time. Breakthroughs are likely to come not in dramatic, tearful reconciliations during the mediation session, but in the mental musings that occur between mediation sessions when parties have time to reflect. Positions are modified over time as people consider alternatives and what may have happened at the mediation. Various considerations come into play: the desire to get it over with and move on, a desire to in fact reconnect with estranged family members, concerns over younger relatives – cousins for example, who get along just fine and don’t want their parents’ foibles to become their own troubles – a recognition that the other parties may have had their own gripes or concerns whose legitimacy was never fully understood before. 

I always remind parties that nothing prevents them from talking to each other between the times we meet. Attorneys may have justified concerns about such conversations, but I find that attorneys are rarely the sticking point. Indeed they can sometimes be helpful in getting a client to understand that proceeding or continuing with litigation may cause further family discord.

Ideally a potential estate dispute should be mediated before any court proceeding is commenced. That provides an opportunity for resolution before the litigation hardens positions. Time does not always heal old wounds, but sometimes mediation can.

Gary Shaffer Gary Shaffer
Shaffer Mediation

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An honors graduate of Harvard University and the Cardozo Law School of Yeshiva University, where he also served on the Law Review, Gary brings more than 30 years of litigation and negotiation experience to his practice as a mediator. He has successfully negotiated and mediated resolutions in family matters, employment cases, commercial disputes, personal injury cases, and major civil rights matters.

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