The role of interpersonal dynamics in family, estate mediations
By AdvocateDaily.com Staff
In many cases, there can be discord in the relationship that needs to be addressed before the legal issues are dealt with, says Gossin, an experienced mediator and partner with Devry Smith Frank LLP.
“More often than not, it’s other interests, and not legal ones, that are really at issue — the underlying background and the history of the parties.” he says. “What you find is that the dispute never really gets to the legal issues until you’ve at least addressed some of the interpersonal ones."
“Family law and estates law are very similar because they involve the interaction of people who have personal interests and emotional attachments that are different than in a commercial matter.”
In a commercial case, Gossin says, there is often less history or concerns with ongoing relationships to deal with, unlike what occurs in estates and family law.
The difference, he says, is that in family law the relationship often dates back to the marriage, and in estates law, to birth — and in both cases, they can be accompanied by emotional baggage.
“It is often really more about the family dynamics than the legal issues in these disputes,” Gossin says.
Issues that he sees surface in estate mediation include perceptions by children as to how they may have been treated differently by the parents — perhaps one received more financial support or spent more time with the aging parent, or has a particular affection for the family cottage.
“These types of situations colour how the parties feel the estate ought to be divided,” Gossin says.
Family law mediation isn't much different, where, for example, one spouse may have invested inherited money into the family home, he says.
Gossin says the benefit of mediation is that it gives the parties a chance to look beyond the legal issues, addressing some of those underlying concerns and acknowledging their importance to the individual, even if they have no direct implication to how the law affects the case at hand.
“During the process, a skilled mediator takes into account how he or she sees the actual problem,” he says. “When a demand by one party or another is made, sometimes you have to delve into it. For example, the mediator might ask, ‘Why do you feel you’re entitled to that?’ or ‘What is it you’re actually trying to accomplish?’ Sometimes a mediator can make that point to the other party, even though that’s not strictly what the law states.”
Deciding who gets what when a couple separates and when siblings are dealing with their parents’ estate often comes down to emotional attachments, and Gossin says the mediator can help parties come to a resolution on such issues, even if they’re not of great financial consequence.
“A mediator can help to separate that emotion by expressing those concerns from the perspective of an objective third party,” he says. “The most common breakdown in negotiation is because people are not able to effectively communicate once they are in a position of conflict. They often need a third party to express the same position in a fresh way so that the other people can better understand.”
Gossin frequently sees disputes between parties in family law and estates law arising from a lack of trust, which prevents them from resolving the necessary issues, and that requires the assistance of a third party.
“What a mediator can do is add a level of trust to the process so that they can have meaningful negotiations,” he says.