23 May 2023

Dividing Estates by Mediation and Facilitation

  • Articles
  • Legal
  • Inheritance / Succession

Dividing an estate often means (also) an emotional challenge for the heirs. It is therefore not surprising that disputes arise time and again. This article shows how an estate can be divided off court and amicably, even if there is disagreement between the heirs.

  • Mirjam Arnold

    Legal Associate

  • Dr. Balz Hösly

    Legal Partner

  • Stefan Keller

    Senior Legal Associate

  • Patricia Neuhaus

    Legal Associate

Mediation and facilitation can resolve conflicts

Mediation and facilitation offer the possibility of resolving a conflict between the parties involved without the intervention of a judge. In such processes, not only legal but also family and emotional aspects of a conflict are part of the conflict resolution. The prerequisite for this is that all parties are willing to work constructively on the conflict with a view to remain able to deal with each other in the future. A mediation or facilitation aims to look ahead and find a fair, sustainable and binding solution. The mediator and facilitator must be independent of and from the parties and focus on conflict resolution. A mediator does not propose solutions. His/her task is to keep the discussion between the parties running and steering it. During the discussion, the parties recognise new perspectives and often find their own solutions, which lead to sustainable and valuable results. A facilitator has to play an even more active role: he/she also directs the discussion between the parties, but it is also agreed with the parties that he/she also can contribute to resolving the conflict with his/her expertise and even propose adequate solutions to the parties.

Mediations often lead to acceptable solutions in inheritance disputes

A (too) vaguely drafted will or a conflict that goes back years can cause lasting damage to the climate in a family or community of heirs. The community of heirs looses its capacity to act and even to discuss - the division of the estate stalls or stagnates altogether. If a community of heirs reaches this point, the court is often the last resort. Unfortunately, it is often forgotten that judges are bound only by the law when making their decisions – family and emotional aspects or individual solutions are largely disregarded. As a result, court proceedings usually intensify the conflict between the parties, are quite costly and take up a lot of time. This is in contrast to the principles of an amicable division of estates: the law in itself gives the parties a great deal of room for manoeuvre for the division of an estate. Here, a community of heirs can consider and integrate their individual needs. Unfortunately, this ample scope for manoeuvre can also overburden a community of heirs. However, with the professional assistance of a mediator or facilitator, it is often possible to achieve a win-win situation for all parties involved.

An early involvement of experts is key

Unfortunately, we often notice that communities of heirs often wait too long before engaging a mediator or a facilitator for conflict resolution. More frequently, each heir first consults his/her own lawyer, mostly with an engagement to enforce a solution – if necessary, with the intervention of a judge. Not infrequently these developments polarise the situation even further. Many parties realise too late that an engagement of a mediator or a specialist as facilitator can ease the tensions and is already a first step towards finding a solution. A mutually accepted solution can be found much faster, easier and better if the parties – especially at the beginning of a conflict – still communicate with each other and enter a structured conflict resolution process. On the other hand, a formal litigation in a court process to divide an estate more than often ends with a harsh judicial verdict and irrevocably shatters the parties' future relationship.

The MME inheritance team can support you

Mediations and facilitations play an important role in divisions of estate in which the MME inheritance team is involved. You can count on our expertise and professional support. Or do you have a question about your personal or family estate planning? Our inheritance law experts are available to answer all your questions on all inheritance topics. We look forward to hearing from you.
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