Can we mediate our estate planning to choose the executor for our estate?

Dear Mrs. Allison: My wife and I got into it because we each wanted to name a different child as our executor. Then she brought it up at a dinner party, so neighbors and our siblings began weighing in. Now, since it’s been overheard and commented on by the neighbors’ adult kids and our kids’ cousins, our kids are angry, and all have something to say. It’s driving us farther apart. Some days I think I’ll just give in to end the war, but I really don’t think it’s right or will work out well in the end (the child my wife wants as executor has drug problems my wife is unaware of). Any attempt to discuss it turns into a crying, screaming match. We grow farther apart and now hardly speak because we’re exhausted by it becoming a fight every time. She won’t go to therapy to work this out. Can we mediate estate planning issues, like choice of executor? Do you think mediation can help us communicate again? WS in the Tulsa Metro area

Dear WS:

I am sorry to hear that your disagreement has reached such proportions. You’ll be glad to know that, in answer to your first question, yes you can mediate estate planning issues. Mediation is a very appropriate option to resolve your dilemma.

Often, a disagreement spirals out of control when two parties each take a strong stand for their own side of a debate. They dig in their heels and, on principle, stick with their own view of what is right. In business negotiations, not giving in to the other position is often called “stonewalling”. In personal disputes, it’s even harder because of the emotion attached and the vulnerability to being hurt. When other people get involved, whether they are insiders or outsiders, there is a tendency is to choose “sides”. Then it becomes a matter of pride, more than principle, to stick with the side one is “defending”. The situation becomes one of winning or losing and no one wants to lose.

Mediation changes all that — in great part by the roles people play during meetings. Consider:

In mediation, the outsiders do not have a say. Only the parties to the estate plan do, as it should be.

The disputing parties each can invite their own estate planning attorneys to answer any questions, as well as any other professional to act as an independent resource (accountant, financial advisor, health care professional, et al.). These people can provide information, but do not take over the negotiations from the disputing parties.

The mediator takes no side and instead keeps both parties focused on finding a mutually satisfactory solution – a “win-win”.

The mediator conducts separate meetings with the parties to hear all sides without interruption and consider all options. The privacy of this method of mediation means that information can be considered without confrontation for each party.

This “being heard” is so valuable in a marriage. The mediator hears each side’s position and the reasoning for it. She then calmly discusses options for solutions that take into account both person’s concerns and point of view. In this way, she facilitates resolution. (This can be easily and inexpensively done via video conference, such as Zoom.)

The parties to the dispute include only the individuals whose estate plans are in question.

Both parties must agree to mediate in good faith and must agree on the mediator. In good faith implies that they intend to find agreement and abide by it but doesn’t guarantee it.

Working with the mediator (and making use of the information of any invited independent resources), the parties create and choose the solution options that best satisfy their mutual needs.

The parties execute a written agreement that clearly spells out the terms of their agreement.

The final agreement can be private if the parties agree to keep the terms of the settlement confidential or public as they may choose.

Now, for your second question about whether mediation can help you and your wife communicate again: Many times, I have seen people restore their ability to communicate during mediation. Often, it is the presence of the mediator, a neutral third party who skillfully takes away the sting of hurtful comments. Sometimes, it is because all those extra voices are silenced. Other times, it happens because truth can come out and be addressed within the safe space of mediation. Still other times, the experience of controlling what is said and how reminds the parties that they do have communication skills that work. Any or all those reasons can, and often do restore open communication to the parties in a dispute.

With over four decades of experience as an estate lawyer, I have the skills to mediate any estate planning dispute. Mediation is always a more peaceful way to settle differences. I hope this addresses your concerns. Contact me if I can help.

That’s your question, Asked and Answered.
Gale Allison, Mediator

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