Most parties to a dispute will have concerns and aspirations about it: concerns about costs, time, the risk of losing and perhaps reputational damage. They will feel a need to be heard, be keen to get the result they want and to see justice done. In some disputes the emotional tension or outright hostility between the parties may be a very significant factor.
Harnessing emotions
This article focusses on how emotions in a dispute can be harnessed in mediation to achieve a good outcome through understanding – even in some small measure – what has gone on between the parties. This is particularly important in trust and succession or other disputes between family members where the genesis of the problem may go back years.
In mediation the parties will have the opportunity to be listened to. Plenary sessions at the beginning of a mediation are becoming less common. They can have dramatic beneficial consequences but equally they can set the mediation back by further polarising the parties. If no plenary session takes place the mediator will listen to each of the parties, giving them assurance that they are being heard and hopefully establish trust and willingness to be open to the process. In the course of those discussions the mediator should be able to pick up vital clues as to what is the emotional backstory, which may help inform his or her encouragement of the parties in coming up with possible solutions.
Trust and succession disputes are notorious for emotions running very high. Disappointed expectations may be supercharged by the grief of a parent or close member of the family. This is where stories of how a parent always favoured one child over another, or how a stepparent has distanced children from a parent come out in a welter of grief, resentment, unrealised expectations, jealousy, anger and dismay.
The subject matter may be unequal provision for children (whether by trust or will), a child not being compensated for sacrifices (of career or lifestyle) made at the request of the deceased/settlor, everything passing to a second spouse or the development of a power struggle over a landed estate or a family company/empire. We may think freedom of testation is an indispensable part of our law but, faced with unequal treatment of children (or perhaps children being left out entirely), litigants often think that, as in Europe and some other parts of the world, children should have obligatory shares in the estate of their parents.
Mediation’s advantages over the court process
Mediation provides a safe environment to engage with these issues. Very importantly, it provides an opportunity for the parties to feel that they have been heard – an aspiration which litigation may not afford them in the way they think. Take, for example, proceedings in England & Wales, where parties no longer give oral evidence in support of their case. Instead, they are cross examined on it: a frustrating experience for many litigants who feel they have not have the opportunity to have their say but have been persuaded by a clever barrister on the other side into saying what they didn’t want to say.
Whatever the procedure, litigation is unlikely to give parties the space to air any emotions underlying the dispute. This emotional undercurrent is most common between those who were/are closely related, such as in a partnership dispute or litigation between family members over family trusts or a parent’s estate.
In particularly fraught situations where parties really do not wish to see each other the court process presents quite a challenge because they may well see the other party across the court or from the witness box at the final hearing. In mediation the sensitivities of the parties can be catered for: their rooms can be as far away as possible. If the mediation is remote care can be taken to ensure the key parties do not even see each other on screen. Remote mediation has the additional advantage that the parties can, if they wish, be in their own homes and that it can be divided into shorter sessions if the emotional strain gets too great.
The court determines how the law applies to the facts: its decision is not a compromise, nor does it try to fashion an emotionally acceptable way forward for the parties. One party will succeed and the other lose. Taking the costs into account it may be that neither party will consider they have truly won. Needless to say, if one or both of the parties really want a reconciliation that will not be easy to achieve after a trial.
Adopting mediation as soon as practicable after a dispute has arisen, but with sufficient information for mediation to be effective, has many advantages. These include de-risking by stopping costs running and bringing the stress of time-consuming and uncertain litigation to an end. Very importantly, imaginative solutions which benefit both parties (or at least, reduce the potential pain for both parties) can be found. Relationships may be less damaged and, in some cases, restored.
Mediation in English and international cases
Of course, in England & Wales and a few other Common Law jurisdictions statute has stepped in to enable a claim to be made against an estate where a deceased has not made reasonable provision for those close to or dependent upon him/her. The remedy is discretionary, so the scope for dispute as to the merits of the claim and, if accepted, the extent of the provision that can be made is ripe for dispute. Many mediations take place in which the parties are trying to resolve a claim or anticipated claim under this statute – the Inheritance (Provision for Family and Dependants) Act 1975.
Even where there are inheritance rights fixed by law in an international estate that does not solve all the problems. For international families this can lead to many complications, such as which court (or courts) should decide and which law or laws should apply. This can lead to the case being heard in more than one country with a bewildering range of possible outcomes. Such litigation tends to be complex, lengthy and expensive.
Mediation offers the possibility of a non-legalistic approach to the division of wealth which – hopefully – meets everyone’s needs, if not their wants. It leaves the parties in charge of sorting out a difficult situation not of their making with the help of a mediator in a safe environment: what happens at an unsuccessful mediation cannot be used against the parties.
In trust and succession disputes it may well be that those who are in dispute have been placed in a very difficult position by the steps taken by the testator/settlor, such as by a settlor/testator making discriminatory provision on grounds of gender or marriage. Of course, in some cultures and legal systems women are treated less beneficially than men and the family may be content with that. But if it is a source of much unhappiness, there are possibilities to address the situation.
A mediator can help the family appreciate that rather than this process being a contest, all affected family members can work together to see if they can, within the confines of what is obligatory, plan the future for their family as it is, not simply as the testator/settlor/their national law/his or her advisers planned it to be. If the parties can appreciate that this is a family problem that needs resolving rather than a contest which needs to be fought it may open the door to constructive discussions, either face to face or with the mediator acting as shuttle diplomat.
Opening up
It may be that there are facts, emotions or aspirations of which one party is unaware but, if informed (only with the consent of the other party, of course), might change their perception. One party may not be aware of another’s genuine need and the dynamic may change completely when that becomes known. Sometimes an apology may need to be offered. It is difficult to understate the importance of saying ‘I’m so sorry’ in an appropriate case. In two polarised cases in which I have been involved, saying ‘sorry’ resulted not only in a swift resolution of the dispute but also a genuine reconciliation.
There are cases where the parties are so bitter towards each other that their feelings get in the way of sensible resolution. But it may be that even then these emotions are the key to unlocking the issue. So, if in a mediation two members of a family are disputing who should have a valuable estate item it may become apparent that what is most important to them is that the other should not have it. In such a case, an imaginative solution – such as sale with the proceeds going to charity – can result in a swift conclusion to the dispute.
It can be that difficulties between siblings are seemingly insurmountable, but that they may be happy that the next generation benefits in their place.
In order to help the parties come up with imaginative solutions it is important that the mediator understands what is driving the dispute: is it disappointment and poor self-worth? That may be assuaged if there was a reason for being treated less favourably which has nothing to do with their perceived lack of merit. Is one party ashamed about what they have done, but cannot see a way out of it? A mediator can explain the ‘no fault’ nature of mediation and how much better it would be to propose a generous settlement than face a finding of wrongdoing by a judge.
If one party simply has to get the better of the other party, whatever the merits, it may be a settlement can be structured which enables him/her to appear on paper to have ‘won’ but for the other party to be compensated in another way. Or one party may be happy to receive 49% and his / her opponent 51% if that will bring an end to the dispute.
Conclusion
Whether there is anger, hurt, resentment at past slights, shame, hatred, guilt, greed or disappointment, mediation can and does assist in uncovering those emotions and working with them to achieve a solution.
At the very least the parties will have concerns about the time, cost and stress of litigation or arbitration and can be encouraged to consider how good it would feel to wake up the next day having put the dispute behind them.
For further information, please contact:
Dawn Goodman, Withersworldwide
dawn.goodman@withersworldwide.com
