Estates & Wills & Trusts

Estate mediation can help preserve familial relationships

By AdvocateDaily.com Staff

Mediation can help familial relationships survive an estate dispute, says Toronto trust and estate litigator and mediator Felice Kirsh.

Kirsh, a partner with Schnurr Kirsh Oelbaum Tator LLP, says an apparently simple will challenge is often just the outlet for deep-seated issues between relatives of varying closeness, compounded by years or even decades of family dynamics.

“You’re going to be probing the historical roots of these disputes, and you might find it’s something that happened 20 or 30 years ago. Maybe a sibling thought they were treated unfairly, and now it’s all coming out on the death of the second parent,” she tells AdvocateDaily.com. “There are so many emotional and psychological factors at play that you don’t see in your standard piece of commercial litigation.”

While litigation is guided by formal rules of discovery and evidence, Kirsh says mediators have much more freedom to explore the real emotional heart of the dispute with the parties and help them all to move past any long-standing barriers to settlement.

And the unique nature of trust and estate disputes also provides an incentive for the parties to look to the future, she adds.

“Again, it’s not like a business dispute over a contract where nobody cares if you don’t have to see each other again,” Kirsh says. “I think it’s beneficial to have siblings in mediation because an ongoing connection is going to be hard to avoid. In families, there will always be occasions where people have to see one another. This is true for future generations as well.

“There’s something to be said for keeping lines of communication open,” she adds.

A mutually agreeable settlement arrived via mediation is much more likely to keep connections than a bridge-burning victory for one side over the other delivered by a judge in court, Kirsh explains.

“If there’s any hope for reconnection at some point, mediation can help preserve the relationship,” she says.

This is the final instalment of a five-part series on mediation in estates disputes.

To read part one, using mediation to mitigate risk, click here.

To read part two, determining if a dispute is suited for mediation, click here.

To read part three, selecting a suitable mediator, click here.

To read part four, preparing clients to get the most out of the process, click here.

To Read More Felice Kirsh Posts Click Here