Med-Arb as an Effective Mechanism for Resolving Wills & Estates Disputes
By Marco Abruzzi, FCIArb, Q.Arb, Q.Med
Med-Arb presents a compelling solution for resolving estates disputes, offering an effective balance between the flexibility of mediation and the finality of arbitration. By increasing the chances that disputes are resolved efficiently, privately, and with minimal damage to family relationships, med-arb is a valuable method for estate conflict resolution. As estate disputes continue to grow in complexity and cost, Med-Arb should be considered as a primary alternative to litigation.
Estates disputes are among the most emotionally charged legal conflicts. They often arise at a time of grief and loss, making them particularly challenging for families to navigate. Traditional litigation, while a common avenue for resolving these disputes, is often costly, time-consuming, and adversarial, further straining already fragile family relationships.
Given these challenges, mediation and arbitration are increasingly being used to settle estate conflicts more efficiently and amicably. However, mediation alone does not always result in a resolution, and arbitration, though binding, can be too rigid and adversarial for emotionally sensitive family matters. Med-Arb, a hybrid approach that integrates the best aspects of mediation and arbitration, provides a more comprehensive and effective solution. By first attempting to mediate a resolution and then, if necessary, proceeding to arbitration for a binding decision, med-arb can provide both flexibility and finality in estate disputes.
This article explores the application of Med-Arb to wills and estates disputes, examining how – used carefully – it can provide a structured, fair, and efficient means of resolving inheritance conflicts. It also considers the potential advantages of med-arb over traditional litigation and standalone ADR methods, while addressing concerns that may arise in its application.
I. The Challenges of Estate Disputes and Traditional Litigation
Estate disputes frequently arise due to several common factors, including allegations of undue influence, claims of lack of testamentary capacity, disagreements over ambiguous or improperly drafted wills, and challenges based on unfair distribution. These conflicts are particularly pronounced in blended families, where multiple spouses, stepchildren, or estranged family members may contest the provisions of a will. Litigating such disputes can be highly problematic for a variety of reasons, such as the emotional toll, loss of privacy, additional costs and time, and the inability of litigation to successfully resolve the non-legal aspects of a family dispute.
II. Mediation and Arbitration: Strengths and Limitations
Mediation is a widely recognized ADR method in estate disputes, as it allows family members to engage in structured negotiations with the assistance of a neutral mediator. Mediation can be particularly beneficial in estate disputes for the following reasons:
- Preserves Relationships – Unlike litigation, which often deepens family conflicts, mediation often encourages cooperation and mutual understanding, as the parties work to develop their own solution which may or may not accord with their strict legal entitlements.
- Is Confidential – Mediation may ensure that sensitive family matters remain private rather than becoming part of the public court record.
- Is Cost-Effective and Timely – Mediation is typically faster and less expensive than court litigation.
- Provides Flexible Solutions – Mediation allows for creative agreements that courts may not be able to impose, such as redistributing assets or setting up trusts.
Despite these benefits, mediation can have significant limitations. If one or more parties refuse to compromise, mediation may fail, requiring parties to resort to litigation. Additionally, power imbalances can affect the fairness of the outcome, particularly if one party exerts undue pressure on another.
Arbitration, on the other hand, is a binding dispute resolution process where a neutral arbitrator reviews evidence and arguments before rendering a final decision. It offers several advantages over litigation, including:
- Finality – Unlike mediation, arbitration results in a binding decision, eliminating the possibility of prolonged disputes.
- Efficiency – Arbitration is generally faster than court litigation, allowing for a more timely resolution of estate matters.
- Confidentiality – Arbitration, like mediation, can in some circumstances keep family disputes private, at least in the absence of an appeal or application for court intervention.
However, arbitration also has limitations. It is adversarial, as parties must present their evidence and arguments much like they would in court. The decision-making power rests entirely with the arbitrator, which removes the opportunity for negotiated settlements that mediation allows.
These limitations suggest that neither mediation nor arbitration alone fully address the complexities of estate disputes. Med-Arb, by combining these methods, can sometimes offer a more effective approach.
III. Advantages of using the Med-Arb Process
Med-Arb offers a structured and efficient approach to estate dispute resolution by ensuring a final resolution, unlike mediation, which may break down without a binding outcome. The process encourages good faith negotiation, as parties are incentivized to engage seriously in settlement discussions knowing that arbitration will follow if mediation is unsuccessful. By integrating both mediation and arbitration into a single streamlined process, Med-Arb may significantly reduce costs and time compared to prolonged court litigation. Additionally, the mediation phase fosters open discussions, minimizing family conflict and mitigating the emotional damage often associated with adversarial proceedings. Finally, Med-Arb allows for customization, enabling parties to select an experienced neutral with estate law expertise, ensuring informed decision-making tailored to the complexities of the dispute.
Despite its effectiveness, Med-Arb has been subject to criticism, particularly regarding the neutral’s dual role as mediator and arbitrator. Critics argue that the mediator, after hearing confidential discussions, may inevitably carry certain predispositions into the arbitration phase. However, skilled Med-Arb neutrals are trained to separate these roles and base arbitration decisions solely on presented evidence rather than informal mediation discussions. Another concern is that parties may feel pressured to settle in mediation, knowing the same neutral will later act as an arbitrator. However, that is precisely one of the main potential benefits that causes parties to agree to a Med-Arb process.
Med-Arb presents a compelling solution for resolving estates disputes, offering an effective balance between the flexibility of mediation and the finality of arbitration. By increasing the chances that disputes are resolved efficiently, privately, and with minimal damage to family relationships, med-arb is a potentially ideal method for estate conflict resolution. As estate disputes continue to grow in complexity and cost, Med-Arb should be considered as a potential alternative to litigation. Legal professionals should consider encouraging the inclusion of Med-Arb clauses in wills and estate plans, ensuring that families have access to a structured, efficient, and amicable method for resolving inheritance conflicts.
Marco Abruzzi is a full-time conflict resolver, mediator, arbitrator, and conflict consultant focused on resolving business, family, estate, and workplace issues. Prior to his current independent practice, Marco was a managing partner of a boutique law firm in Vancouver, and Crown Counsel with the Department of Justice within the Business & Regulatory, Public Prosecution and National Security & Defence sections as well a Legal Advisor to the Department of Fisheries and Oceans.
