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8. Mediation Techniques For Conducting Family Meetings and Retreats
Family meetings and retreats can be structured in many different ways. Mediation provides the most advantages because it fosters an open, constructive dialogue of difficult subjects, builds a collaborative spirit when people feel at odds with one another, and helps people arrive at mutual understandings and consensual agreements.³² Employing mediation techniques increases the likelihood that everyone will be comfortable and satisfied with the estate plan that is ultimately developed.

Despite the many advantages of mediation for family estate meetings and retreats, it has a semantic drawback. Many people associate mediation with conflict. Some families may balk at the idea of mediation for their family meetings because they do not want to think of themselves as being in conflict. In this situation, it is easier to refer to the process as facilitation than to convince people that mediation is perfectly appropriate when there is no extant conflict. Once family members are committed to the value of the holistic approach, they usually lose their qualms about the terminology —especially when they appreciate the legal protections mediation offers that facilitation does not.³³

To keep sensitive discussions constructive, mediators must be skilled at working with individual pathology, potentially volatile relationships, dark and conflicting family histories, and occasionally the worst sides of human nature. To operate successfully as third-party neutrals in such complex situations, mediators also must understand, to a reasonably sophisticated degree, estate planning, finance, and business. While mediators should be familiar with the basic principles and terminology of estate planning, they should never give expert advice on legal, investment, or tax strategies. In the course of the meetings, the mediators may consult with the planner, the parents may consult with the planner, and the mediators and family may request that the planner participate as an expert in some of the mediation sessions. The flexibility of the mediation process allows the estate planner to enter the process as the expert at any time that it might be helpful (e.g., to educate, to explain the inner workings of a trust, or to answer questions).

In this type of arrangement, adult children typically are very accepting of the role of the parents’ estate planner, perhaps because the children trust that mediators are serving them as much as they are serving the parents. The planner clearly represents the parents, and the planner’s participation in the process is for purposes other than representing everyone. Estate planners should be certain that any professionals they bring into the planning process are fully qualified and experienced in these respects. Because of the breadth of issues involved, the emotional intensity of the family work, and the duration of the meetings, two professionals with complementary backgrounds may be necessary.

Mediators are neutral, third-party professionals who work for the common good of everyone involved. They strive to get the best ideas on the table and clear up misunderstandings and misperceptions. They work for the entire family, even when recognizing the different roles, authority, and positions of various family members. In estate planning, this means that mediators recognize the role of testator intent and ultimately, the parents can do whatever they wish with their assets.

Mediators also recognize that parents who adopt a holistic planning method want everyone in the family to feel as good as possible about their decisions and not feel angry, cheated, or resentful over the final plan. Therefore, mediators work to achieve the highest possible level of consensus among family members.³⁴

Mediation is an informal and flexible process that mediators actively direct and guide. Discussions range from interpersonal dynamics—such as the hurt feelings a daughter carries around for thirty years over a sarcastic comment a mother made—to the disposition of family vacation homes, real estate, furniture, heirlooms, or businesses. Though the focus of discussions is always forward-looking, if a family must deal with the past to move forward in a constructive way, then mediators will facilitate the appropriate discussion. Except about the process itself, mediators do not give advice. They should never advise people about their position on a point, but they should encourage, coax, and motivate people to actively participate, share their thoughts and feelings, and create understandings that have the greatest long-term advantages for everyone involved.

People involved in mediation tend to be extremely open and candid with mediators because everyone gets private time with the mediators. Family members often reveal their worst fears and suspicions, their angriest feelings, and their wildest ideas about possible resolutions to problems. The family members recognize that part of the mediators’ job is to help them sort through what is real and what is not, and what is productive and what is not.

People also are willing to be open because they know they can request that the mediators keep confidential any information they are not ready to reveal to the family because it is too sensitive or embarrassing. People who have kept secrets from their entire family for years will share those secrets with mediators whom they have just met. Because what transpires in mediation (e.g., oral and written communications, admissions, offers, and notes) cannot be used in later adversarial proceedings (a real advantage of mediation), people tend to be candid.³⁵

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32
Gage & Meza, supra note 22, at 190-93.

33
We do not consider it problematic if estate planning attorneys refer to the mediators as “family facilitators.”

34
There are, of course, parents who, consciously or not, view their estates as vehicles for continuing their control over, or even punishment of, their children. We assume that such parents will not choose a holistic approach that has the opposite objectives.

35
Most mediators describe the bounds of confidentiality in a mediation agreement, and most jurisdictions provide broad protections to mediation proceedings through statutes and case law. The protections include prohibiting mediators from testifying in any subsequent litigation. See, e.g., CAL. EVID. CODE § 703.5 (West 1995);120;120; CAL. EVID. CODE §§ 1115-1128 (West Supp. 2003); FLA. STAT. ANN. § 44.405 (West, WESTLAW through 2004 Sec. Reg. Sess.); Rojas v. Super. Ct., 93 P.3d 260, 264-65 (Cal. 2004); Foxgate Homeowners’ Ass’n v. Bramalea Cal., Inc., 25 P.3d 1117, 1125 (Cal. 2001); Unif. Mediation Act § 4 (amended 2003), 7A pt. 2 U.L.A. 111 (Supp. 2004)