Being collaborative is not about having a buzz word on your website, saying that you’ll behave one way, but instead you still do things the same way as always.
Being collaborative is a process, a philosophy, and a challenging but rewarding way of resolving conflict.
Behind those drawn to be collaboratively trained is a deep desire to help, to serve, and to do good work. But there’s more …
There’s a desire to do no more harm to a family situation.
There’s a desire to work with a team of professionals in a respectful, problem solving way, instead of adversarially.
It values the experience and advice of professionals other than lawyers, and having fully informed clients.
There’s a desire to get the best possible outcome – but in the client’s eyes, not necessarily from a legal perspective.
It removes the idea of the advocate winning a client’s case regardless of the impact on the other parties involved, or even on the client’s emotions along the way.
Those professionals committed to a collaborative process will all sign an agreement that they will not represent the parties in litigation. Arguably, this requires a deeper ethical commitment than any other form of practice, because it truly commits lawyers in particular to the process.
Not only does each client have a lawyer, but there is also an independent financial advisor and an independent psychologist or communication coach in the professional team from the start. Other professionals may also be pulled in at various stages, to give advice to both parties and to talk to all lawyers.
The professionals meet together, separate from the clients, both before and after each joint meeting, to prepare and to debrief and to learn from each other.
There are multiple joint sessions, where the clients talk directly to each other.
Similar to mediation, all options are brainstormed, without the professionals judging or ruling out options. The clients then explore each of the options themselves, and which combination will work for them, taking into account the professional and financial advice.
Instead of being part of conflict indirectly (through correspondence and with the strict rules of a Court), the collaborative professionals have to get comfortable with the emotions of their clients being expressed, and their own emotions.
Arguably the most important rule is that of the communication coach, so that all parties learn how to say what needs to be said. So everyone is heard and understood.
When uncomfortable things are said, the professional team needs to be empathetic enough to support and be aware of the importance of being heard and understood, and still being able to move forward.
Sometimes the collaborative process is the first time that clients have seen adults resolve conflict with respect. The collaborative professionals set an example, and act as role models, so that clients can learn how to resolve conflict between themselves in the future.
Because underlying reasons for the conflict are explored, many assumptions can be explored and set aside. Perspectives can be understood.
The word “sorry” can be used. Forgiveness and understanding can develop.
The conflict can be truly resolved, instead of having a court-ordered bandaid wrapped around it for the wound to bleed again within months.
How challenging and rewarding this new way of practice is!Learn More
After someone dies, and there are members of the family who are not happy with the Will, there are ways to resolve this without going to Court. You can reach an agreement to do things differently, rather than sticking to the Will, if someone challenges the Will.
Here are 4 tips to keep your family out of Court:
Consider that the reasoning in the Will may not be morally correct
There are reasons why there are laws allowing a Will to be challenged, and often it’s because a Will is not fair. Someone’s wishes in their Will may not be fair.
Many husbands have left their wives out of Wills. Many parents have left sons and daughters out of Will because of words said in anger decades earlier.
People make decisions in life, all the time, due to emotions. It doesn’t mean they were good decisions. People can justify why they make their decisions, but it doesn’t mean that they are right.
It is possible, that if a Will is not fair, that it can be changed by the agreement of the surviving beneficiaries.
Look at all the options that the Will gives you first
There is often a lot of flexibility in the powers given to executors under a Will. Some of these powers include postponing a sale of a house, by agreement. The powers could also include not selling assets at all, but giving assets to people as part of their share – or having them pay to keep an asset if its value is too big.
There may be more flexibility and options than you first think.
Exploring all the options, before you rule anything out, may result in a solution that keeps everyone happy.
Get a good understanding of the financial position of all the beneficiaries, as well as the aggrieved person
If someone challenges the Will, not everything evolves around them. The financial position of the other beneficiaries is also relevant. Someone else who hasn’t challenged the Will might be worse off.
In fact, the person challenging the Will might think a bit differently if they realise that they are leaving someone else in a worse position.
This is where an independent financial advisor can help. The position of the beneficiaries could be modelled, so different scenarios can be assessed with actual data rather than assumption.
Sign an agreement with everyone that you commit to resolving the issue without going to Court
If you want to keep control of the process, then you don’t want to end by in Court. There is a process, called Collaborative Practice, that involves everyone signing an agreement that they will commit to resolving the issue without going to Court.
This would include having lawyers sign the Collaborative Practice agreement, as well as having a mediator and an independent financial advisor. It usually takes between 3 and 6 meetings of a couple of hours each, and has a higher chance of success than any other alternative dispute resolution process.
The resolution is usually more successful, because the family can stay together, and its usually a win-win outcome, rather than a litigious Court outcome.Learn More
The death of a parent can rock your world, and leave you and your siblings in turmoil. But you can survive the death of a parent with dignity and grace, and you can maintain a great relationships with your siblings, even if there are disagreements along with way.
Taking your time to grieve
Be patient with yourself and understand that others are grieving too. Everyone grieves differently. Don’t make hard decisions while you grieving. Give yourself time. There is no reason to rush making decisions, so don’t let anyone pressure you so that you feel like you need to make a decision quickly.
Do the doing
Doing the doing is about having a daily routine that you stick to so that you’re still living and still moving through your life, so that your life doesn’t stop. Keeping a routine will help you have some normalcy in your life, even if there is a gaping hole. And when things arise, you can take tasks step by step.
Particularly when we’re grieving and are having trouble making reasonable decisions, we also make a lot of assumptions and don’t actually listen to what people are saying. Or we might listen to what the words are, but we’re not actually thinking about the underlying meaning or realizing that what they’re saying may also be coming from a place of grief. Giving yourself time, after listening before responding, can also be really crucial to help you survive this time with dignity and grace. Understand that everyone deals with death differently.
Everyone deals with death differently
You may have heard that there are many stages of grief, but those stages aren’t steps that people move through sequentially. They are different emotions that people might spiral in and out of constantly. And the time that people take to grieve is different as well for everyone. So as well as giving yourself a break, please give others a break around you.
In taking time to make decisions and to give yourself and others a break, it is also important not to lash out or attack anyone in anger. Even when people are understanding that you’re grieving, it is hard to take things back that are said in anger.
If you are angry, find a way to release that anger without taking it out on your other family members.
Does a Will exist?
Knowing whether a will exists or not can help you through the period of grief with dignity and grace. Find the will, find out where the original will is. Make sure that everyone has a copy of it, so that everyone has a level playing field.
Notify those who need to know
Notify the people who need to know about the death of your parent. Most official notifications can wait until the death certificate arrives, which is usually four to six weeks after someone has passed away. There’s no rush to notify people officially. But once the death certificate arrives, make sure that the banks know, make sure that the superannuation company knows, make sure that the private health company knows.
Remember your parent was human
It’s also important in this time to remember that your parent was human. That means that they also made some poor decisions and were not always right.
Communicating regularly is really important during this time, and communicating openly without judgment. Try not to hold things against others. Keeping everyone notified about what is happening, who’s making what decision and what the next steps are, is very important.
Don’t unnecessarily escalate
While people are grieving, we don’t want to create extra anxiety or other unnecessary emotions. Finally, when we’re grieving, we can also unnecessarily escalate situations and blow them up when they don’t need to be.
Originally posted TBA LawLearn More
Having an independent financial advisor who is able to give advice to all parties when negotiating a settlement after someone has died offers multiple benefits.
Less anxiety through greater understanding
One of an independent financial advisor can reduce the stress of negotiating a claim on a Will is by helping everyone to understand their current financial situation, and visualise their future so they can see what their ideal settlement outcome might be.
They can do this through modelling, using your current situation, and then various amounts or assets you could receive, and based on your estimated lifetime and retirement age.
Creating a level playing field
Over decades, where each person has taken on a different role and made different sacrifices, it’s not uncommon for assumptions to be made about who did what and what they’ve already been given. When that kind of imbalance in knowledge exists, an independent financial planner can help to level the playing field. They can boost everyone’s confidence and clarity by providing education and support tailored to their needs.
The quality of the outcome often correlates to how soon a specialist financial planner is brought into the conversation. The sooner everyone starts thinking about what they want, and how that might be different to what they need, the more likely they are to negotiate with confidence.
Original published TBA LawLearn More
If you believe you need to contest a Will, but you also value the relationships with your other family members, there is a way that won’t ruin the family. The fresh way to do this is not to allow lawyers to escalate the issue into a dispute that goes to Court.
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.
Originally posted TBA LawLearn More