Traditional v Alternative Dispute Resolution
In a more traditional approach (which people worry about) is that a person with a problem goes to a lawyer and the lawyer just takes a traditional approach. This involves some negotiations to begin with, usually letters backwards and forwards. And if that doesn’t narrow the matter down to where it can resolve, there’ll be court proceedings filed.
A more alternative approach keeps negotiations open for longer. Now, court may still be one of the elements used in an alternative approach because sometimes you need the leverage of proceedings on foot to bring a party to actually negotiate, because they might refuse to engage. Or the other reason might be that you have a timeframe that might be expiring and you need to actually get proceedings filed, but you might not actually use that as a dispute resolution process. It’s just potentially one of the strategies to get it resolved without going to court itself.
Now with an alternative approach to dispute resolution, we have a number of elements involved, with negotiation as the primary focus. You might do a number of things, and they might not be in any particular order, and you might come back to another process after a while. So self-service or self-negotiation is also an important part of negotiations so that you also understand the negotiation process.
Mediations are important – early stage mediation, preferably. A mediation might not just be a single day. It might be multiple half days over a length of time so that people have time to process and to do some research and find things out. Arbitration might also be a method that is included in the process, particularly if there is a technical point that needs to be resolved. So arbitration takes the matter out of the hands of the parties and gives it to an expert to decide on a particular point.
Collaborative Practice is also an important part of alternative dispute resolution. To be involved in collaborative practice, all the parties need to sign an agreement that they will do everything they can to try and keep the matter out of court, and the professionals in fact agree that they won’t go to court as well. So the lawyers you have involved in a collaborative practice, it incentivises them to resolve it because they cannot go to court. If you later have to go to court, they can’t act.
Alternative approaches try and keep the resolution and control of the outcome in your hands as much as possible.
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The Benefits of ADR
There are many benefits of alternative dispute resolution, particularly for women.
There are a whole lot of biases built into the legal system that operate against women, so if we want a better result, maybe we don’t use the system itself.
Maybe we should look for an alternative. So there are lots of alternative dispute resolution methods, and most of them:
- allow you to have more control about what the outcome is,
- have more control of the timeline, and
- have more control over the cost.
The problem with litigation is that it might sound like the first stage is cheaper, but then it goes on and on and on. There are hidden costs and everything costs extra, with each stage getting more and more expensive.
With alternative dispute resolution, you general get a fixed fee and all extra costs are all built in.
The other thing about alternative dispute resolution is that it’s private. So when you put something into the court system, it becomes public. Courts are open systems. Justice is supposed to be available for everyone to go watch, and if a judgment is made, it is publicly available for everyone to have a look at, but not only that. Court files can be searched by anyone for a long time. They go into archives, and anyone can have a look back through what was filed.
Now, the other benefit of alternative dispute resolution is that you can look at what else is important to you. So when you’re doing alternative dispute resolution, you can have in mind that one of the main objectives is not for this relationship to completely break down. So you can preserve something of the relationship and potentially create a precedent of how to move forward, how to resolve conflict between yourselves in the future, rather than just having this stalemate and burning a bridge and letting a relationship go that would otherwise be important to you.
Whereas if you go through litigation, it often makes relationships worse. It’s very rare that people come through a court litigation and can still maintain a relationship after that.
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The Best Way To Keep A Deceased Estate Out of Court
The best way to keep a deceased estate out of court is to talk directly to your family, if you can, and don’t let lawyers escalate any issues into disputes.
Traditionally, lawyers will work out your rights, and then help you enforce your rights. But they do this without consideration to the actual costs to you.
Not only do the lawyers benefit by increasing their own legal fees, at your cost, but the others costs to you include:
- increased time to finalise the matter
- stress and anxiety over the outcome
- potentially splitting up the family so that relationships are lost
- having dirty laundry aired
- having your financial affairs disclosed to everyone involved, and
- the control of the outcome is taken out of your hands.
Whereas there are a number of early interventions that can be used to keep a deceased estate out of court, and not letting an issue escalate into a full dispute.
Other than talking amongst yourselves, the first is having an early-stage private mediation. With or without lawyers. This is then like a facilitated conversation, to make sure everyone is heard and everyone gets their chance to have their say. Then options are explored, and everyone keeps control of the situation.
But the best way to keep a deceased estate out of court, particularly when family members find it difficult to talk and be in the same room as each other, is through a number of meetings called Collaborative Practice.
Collaborative Practice involves having a group of professionals to facilitate a number of conversations with the family that can lead to positive outcomes for everyone. The professionals are called ‘collaborative practitioners’.
There are lawyers, coaches, mediators and financial planners who can support your family through conversations that can keep the family together. During the meetings with the collaborative practitioners, you will discuss all the options, and keep control of creating an outcome that is win-win for everyone.
First published TBA Law
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Top 3 Tips To Keep The Family Together After a Death
The death of a loved family member, particularly when they are the glue that keeps the family together, can sometimes cause a family to fall apart. Here are 3 tips to help keep your family together after a death of a loved one.
Talk openly, without holding it against anyone
The death of a spouse, parent or child can be hard to come to terms with. People may say or do things that are out of character, for lots of reasons.
Behaviour and words said shouldn’t be held as a grudge against someone. After a death, there needs to be some time and space. There is often is huge rush to make decisions.
If your family has never been great an openly communicating with each other, and people hold back, then you might need to have some help to facilitate those conversations.
Taking a position, hiring a litigious lawyer, and isolating yourself from other family members are not very helpful. These behaviours can cause the family to break about. Hiring the wrong lawyer can blow the whole situation up and cost a lot of money.
There are different ways to resolve differences of opinions, rather than going to court and fighting over it. There are ways to keep your family together after a death.
Allow for grief
Be forgiving and patient with yourself and those around you.
Know that the ‘stages’ of grief are not steps that someone works their way through. They jump around, and spiral through those grief emotions. Some take longer than others.
Your world has been rocked after the death of someone close. Give yourself time, and don’t try to make serious decisions.
Be conscious that others will grieve differently to you. Don’t have high expectations of others – even if you can’t be empathetic of understanding of their behaviour. Just understand it’s likely to be coming from grief.
Try to establish mutual priorities
Rather than taking positions on what individuals want, try to establish some group goals.
Can everyone agree that they want to keep having Christmases together?
Can everyone agree that family is more important than winning a fight?
Maybe everyone needs to accept that the person who passed away was not perfect, and maybe they made some mistakes.
If there’s anything that the whole family can agree on, it’s best to start there.
Originally published TBA Law
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7 Important Things To Consider When A Will Could be Challenged
When a family member passes away, sometimes there is anxiety about whether everyone will be happy with the contents of the Will. Instead of anticipating the worst, be well prepared with these 7 important considerations:
Is the family all aware of the Will contents?
The family may not have even seen the Will yet. It may be all speculation.
Make sure that everyone who is a beneficiary in the Will gets a copy. Make sure that everyone who may have been a beneficiary under intestacy (if there was no Will) has a copy of the Will.
Is the person threatening to challenge the Will even eligible?
In each State, there are a range of people who are eligible to make a claim against a Will. Some States have narrower categories than others.
For example, in Victoria, only a spouse, adult children, minor children, or someone who is financial dependent on the deceased person, are eligible. Brothers and sisters, nephews and nieces, and grandchildren are not eligible.
Who else could have a claim?
There might be someone very vocal about being upset about the Will. But there might be someone who would have a better claim. They just might not want to make a claim.
When a claim is made against a Will, the circumstances of all the beneficiaries is relevant to be weighed up.
What assets are covered by the Will and which aren’t?
What could even be included in a claim? Some assets are covered by the Will, and some are not.
Superannuation is often not included in an estate. Joint assets are not included in an estate.
So there might be less damage done to the assets covered by the Will be a claim than anticipated.
How much is the combined asset value?
Once you’re aware of what assets are actually in the estate, you’ll be able to work out the net value of the estate.
There are other assets not included in the estate, and so some family members will directly benefit from those rather than through the Will. The value of those benefits can also be established.
Then you have a better idea of the value that family members are receiving, whether through the Will or not.
Is the family willing to waste $100,000 on a legal battle?
To be blunt, the main people who benefit when there is a family dispute over someone’s death, are the lawyers.
A legal battle is not a win-win outcome in the majority of cases. It is most often a lose-lose outcome.
While someone may feel like they ‘won’, or the position they took was upheld, mot often they actually compromise something. So it’s actually a loss, and then they end up with less because of legal fees as well.
Is the family willing to try a different way?
There is a different way to have a safe and guided conversation with family members to resolve any issues that are arising. You can use a group of professionals to facilitate a number of conversations with the family that can lead to positive outcomes for everyone.
The professionals are called ‘collaborative practitioners’.
There are lawyers, coaches, mediators and financial planners who can support your family through conversations that can keep the family together.
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3 main challenges you could face, in a dispute after someone dies
Facing a dispute over the Will when someone dies is what many families dread. Here are 3 of the most common challenges that families face in a dispute after someone dies, along with some ways to avoid or deal with those challenges.
Holding the family together
While everyone is grieving, anger can flare when someone in the family does not think the Will is fair. This anger can lead too quickly to the family thinking a challenge as unforgivable.
Everyone deals with grief differently.
One of the best ways to try to hold the family together, despite someone being upset by the Will, is to slow down.
After someone dies, there is plenty of time to allow emotions calm down and have some conversations.
It’s better to stay open to listening, rather than taking a firm position in the early months after someone has died. Taking a firm position can create a fight, which will turn into litigation, and a lot of legal fees.
If you want to hold the family together, litigation won’t achieve that.
So you need to be aiming for resolving the dispute in an alternative way than litigation.
Paying legal fees upfront
For the estate, if there is no liquid money available, and it’s all in real estate, then the executors are likely to need to pay legal fees until they can be reimbursed.
For the person wanting to dispute the contents of the Will, they will need to pay some of their legal fees up front too. Rarely are all legal fees payable at the end.
So there is the challenge of being prepared to pay some legal fees, whether or not there is an alternative dispute resolution path, or litigation.
Keeping everyone happy
Keeping everyone happy is a challenge that you may need to accept cannot be done.
There are going to be upset family members. The situation may never sit well with everyone. But sometimes, at least having the change to be heard, and have their say, is something that provides some satisfaction.
If a dispute ends up in litigation, not everyone will feel heard. Some stories will be told, many stories and feelings will be dismissed.
Whereas, using an alternative dispute resolution path may give everyone a more level playing field, and a better chance of feeling heard.
Collaborative practice is a method of alternative dispute resolution which keeps parties and their lawyers out of court. It occurs over multiple joint meetings of a few hours each, so there are enough breaks in between and chances to debrief and consider what was said. It is the best chance a family has of surviving a dispute about a Will.
Originally posted on TBA Law
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