This Blog was written for the Family Mediation Trust following a workshop I presented earlier this year.
The phrase that was used to justify many of the actions and reactions following the death of Her Majesty Queen Elizabeth II both in seriousness and by those with more of a side-eye view of the monarchy was “it was what she would have wanted”.
When you get to an age where you attend more funerals than weddings it’s a phrase you hear a lot. In my family I recall that it was the smoke from the incense burner being waved over my grandmother’s coffin (as a 60 a day smoker well into her 70s who could argue that one last smoke wasn’t what she would’ve wanted!).
On the other hand at another family funeral the deceased had said he didn’t care what the arrangements were because “I won’t be there”, in this case doing what the surviving family wanted was expressly what the deceased had said he wanted.
“It’s what they would have wanted” is also a phrase that is used by clients in inheritance mediations. Often clients think by saying this they are explaining their position, telling the mediator that “it’s what dad would have wanted”, but more often than not it’s actually clients seeking to justify themselves in front of the mediator.
Seeking justification is unnecessary of course because the mediator isn’t judging anyone’s actions, and often using the phrase leads to challenge from the other party or parties. The allegation in response that “you didn’t know dad as well as I did” or that “mum would never have said that” can be quite explosive early in a mediation, and often that’s for the good – a little venting is regularly necessary to allow clients to feel they have said their piece and enables them to then move on to a more calm and thoughtful discussion about resolving the dispute.
“It’s what they would have wanted” is also a phrase that allows a mediator to begin to explore with the clients what (in their view) was the deceased like, leading to questions about how they would have viewed the (as is often the case) family feud.
What would mum/dad/granny have thought of you arguing over the family silver or the money they worked hard for all their life? As more than one client said to me in answer to that question “they would have banged our heads together and told us it was not worth it”. That sort of self-revelatory comment can be the time to use silence and have a very long moment’s pause while the mediator lets the client listen to what they just heard themselves say (it works even better if they aren’t alone and their significant other or support friend hears them acknowledging that they know the deceased would not have approved of the fight).
It's a hard shore to row back from, once the client accepts that actually what the deceased “would’ve wanted” is for the family to move on and not tear metaphoric (or literal) lumps out of each other. Suddenly remembering all those times you said it wasn’t about the money and realizing that maybe it genuinely isn’t can lead to settlement, whilst at the same time allowing the client to feel they have fought as much as the deceased would have wanted and as much as they feel they themselves needed to.
Whatever the deceased would have wanted (whether implied or expressly stated in a will) in cases involving sums of money it’s often easier when there’s lots of cash or valuable assets with which to work. There’s usually a middle ground area where families can agree a bit of give and take and work a way out of their entrenched positions, with a bit of help from some pointed questioning and guidance (not advice) from the mediator, of course.
In cases where a specific item is in dispute it can be much trickier: the guitar he used to play; the ring she always wore; the carving they made. In those cases, often irrespective of the value of the item, ultimately only one party can inherit. And although parties will at some point invariably suggest sharing an item so that it migrates every 6 months, like some form of unladen European swallow, it is rarely the outcome of the mediation as such sharing arrangements simply aren’t practical - especially where there is already an element of distrust between the parties.
The wisdom of Solomon often comes into play in these cases (he said modestly). Testing which party would rather the item was binned, burnt or sold than any one party keeping it. More than once no-one getting whatever the item is has been the best agreed outcome.
I fondly recall ancillary finance cases in front of a district judge who regularly announced he had a chain saw at home and was quite happy to bring it in and cut up a three piece suite or the dining table if divorcing parties couldn’t agree and very much channel that energy when necessary. That sort of approach (though perhaps not quite as bullish) works well in inheritance mediations when you are down to the last item or two where the sentimental values of items are higher than the intrinsic.
Sometimes a party will in discussion reveal that whilst, yes, they did originally say they wanted an item they are actually prepared to settle for the payment in lieu. When this happens it is always helpful to have encouraged the parties to obtain, or at least think about, valuations before you start, so that an agreement on the day in respect of the “price” can be achieved. If there’s a chasm between the parties’ estimated valuations it becomes trickier, though not impossible, provided there is some room to manoeuvre.
When clients begin to bat offers back and forth (it’s called shuttle mediation for a reason) I do have to remind them that though I have a fondness for BBC’s Bargain Hunt saying to the other party (and themselves) that what they are making is their best and “final offer” is not always the most helpful way to proceed. Often I will simply tell the other side it is an offer and do not communicate the other party’s suggestion that it is immovable – mainly because it never is. In one inheritance mediation there were I believe (and I’ll have to check with my colleague who was observing as part of their training) somewhere over a dozen “final offers” from one party.
It’s not that they didn’t believe each time that the offer made was indeed their final position, it’s just that each time a response came back they could feel the other side was willing to move and, being family, were able to, or perhaps felt obliged to, respond in a similar vein so as not to appear to the rest of the members of the family in attendance to be the unreasonable one. In any event in that case 15 or so final offers (and a good deal of my shoe leather) later settlement was achieved.
Perhaps it helped that I made passing reference to HHJ Newman’s decision and the costs impact on the parties failure to even engage in mediation in Christopher Burgess v Jennifer Penny & anr [2019] EWHC 2034 (Ch). You may recall HHJ Newman made it clear that probate “mediation is not just about one side getting what they want. That is a misconception of the purpose of mediation. Mediation should be about attempting to reach a solution which both parties can live with as a better alternative to litigation” and there indeed the failure to have engaged in mediation carried a significant costs penalty.
Talking about the ripple effect of the dispute and impact on those additional family members has a big influence on decision making in inheritance cases. Whether the family is there in the room or simply will be impacted upon by any decision made, talking about them, their needs and desires with parties can help the participants realise the impact the dispute has had up to the date of the mediation and the potential for ongoing harm.
You do need to be live to the fact that parties will often agree the dispute is having a terrible effect on the wider family, but in their opinion it’s the fault of the other party. That’s when you can really get into talking about control, they have it, they determine the outcome, they can drag this out and die on this hill or (given they’ve come to mediation which at least shows some willingness to compromise) accept that there is an arrangement with which they can live. Happy to walk away if not walking away happy to paraphrase Ken Feinberg.
You can ask clients if the bitterness of a fight continues will it impact on your children’s relationship with their uncle/aunt/cousin? Will they be thanked for continuing what (by the time it gets to mediation) is already a long drawn out case with issues going back normally well before the death which precipitated the conflict? Will the damage continue unto the third generation?
As anyone who has attended a course or inheritance mediation with me will know the other family member I like to have represented in the room is the deceased, whether by photo on the desk or by looking through pictures on a phone, talking about the deceased is important.
As I said at the start the parties genuinely thinking about what “they would’ve wanted” is often the turning point for them and being able to focus on a photo can help the parties get to a point where they are willing to compromise, it also enables them to feel you’ve understood the importance of the person that has died and helps the parties engage with you more fully (we don’t say lost or passed despite the terms the probate registry answer system uses).
Ultimately inheritance disputes are about discovering genuine red lines, but also where the parties will flex and what, as in any mediation, the parties can agree upon, often irrespective of what the parties believe the deceased would have wanted.
Many thanks to The Family Mediation Trust for letting me publish this article on their site as well as here.