The Lawyers Weekly - April 1, 2011

THE LAWYERS WEEKLY
April 1, 2011 | 11

True story: A group of senior
women are talking about some-
thing that keeps them up at
night — their children fighting
over their estate. Molly says to
Beatrice, “But Beatrice, you will
be dead and gone, and you won’t
even know.” Beatrice replies, “Oh,
I’ll know, and it’s making me sick
with worry.”
There is nothing like an
embattled estate to fracture
family ties, perhaps irreparably.
Lawyers dealing with such mat-
ters appreciate how decisions
made about estates and wills can
have far-reaching consequences
on every family member touched
by its scope. As the trusted
advisor to his or her older client,
the estate lawyer wants to pro-
vide the best legal advice, yet
knows that the well-intended
legal rules and policies were not
designed to manage the intense
emotions that are frequent, if not
invariable, byproducts of the
legal process.

Elder litigation problems are most often the result of some or many family members or parties related to the estate challenging the older person’s decisions. This is a psychologically-laden moment in the life of a family, as likely the patriarch and/or matriarch’s capacity to make key decisions has

RESA
EISEN

never before been questioned to this degree before, let alone usurped. Status is lost or gained and roles are reversed.

Allegations of lack of testa-
mentary capacity and undue
influence are hallmarks of such
litigation. While the court sys-
tem would provide remedies to
the dispute, it is widely acknow-
ledged that this can be an
extremely protracted, expensive
and deeply exhausting process,
and in the end, could leave many
people still feeling dissatisfied
and disgruntled. This is not to
say that the court has no place in
the living rooms of the nation;
indeed, the authority of the court
may be the necessary require-
ment to get warring family
members and others to accept
an adjudicated result and bring
the matter to an end. But, to
invoke the remedy of the courts
at earlier stages in the dispute
may be removing the opportun-
ity for counsel to help their older
client resolve not only the sub-
stantive issues, but the under-
lying dynamic and relational
ones as well.

In social work (and medicine) a premium is placed on “primary prevention,” a process involving anticipating problems before they occur and setting up a strategy to prevent them. Vaccination prevents disease; parenting skills and knowledge of the effects of abuse promote the protection of children from trauma. So, too, is the case with the aging family. Failure to anticipate and address problems before critical events occur results in a reactive, crisis-driven approach. Mediators skilled in family dynamics and the issues inherent in aging can be called on to initiate discussion with each individual family member, allowing them to talk about sensitive topics and their emotional concerns and needs in the safety of a confidential and non-adversarial forum.

The mediator is at an advan-
tage, but doesn’t take advantage,
of learning about interests and
emotions that, until now, have
been hidden or suppressed.
Rather, this information can
then form the basis of a fair and
open discussion when the medi-
ator brings the parties together.
A non-confrontational and
relaxed environment leads,
itself, to creative solutions and
the “therapeutic” impact is felt
as they move forward towards
problem-solving.

Resa Eisen is a Toronto social worker with a private practice in marriage and family therapy, specializing in conflict resolution with families-in-transition. She is also a director for Workplace. calm, inc. where she works in conflict resolution and mediation of complex workplace interpersonal situations.

Influenced by non-rational factors

Neuroscience
Continued From Page 9

understand, with the help of emerging research in cognitive and behavioral neuroscience, that decision-making is not an exercise of dispassionate rationality, as we lawyers would prefer to believe, but rather emotion-based, and subject to a host of influences below the rational radar screen,” said Tesler, who trains conflict resolution professionals to become neuro-literate.

“We know from the emerging field of neuro-economics that negotiations can be greatly influenced, for better or for worse, and consciously or entirely unconsciously, by environmental factors,…language and body language cues, entrenched emo-tion-laden narratives of conflict, and other non-rational factors,” she added.

“Good lawyers will keep that kind of information in mind when they are involved in mediation,” said Hill.

It will require a mind shift,
however, said Tesler, a specialist
in family law. “The practical real-
ity is that everything we lawyers
have been taught to believe about
the relative primacy of reason
versus emotion in dispute resolu-
tion work is wrong in terms of
human biology. A humanistic,
integrative, biologically accurate
wave of new thinking is changing
how the legal profession under-
stands conflict and assists with
its resolution.”
That wave may reach lawyers
currently in practice — and
sooner than they think. “I believe
that continuing legal education
in this area will be mandatory in
the not distant future and that
lawyers will be expected to under-
stand the implications for our
work,” said Tesler. “The reality
[is] that we and our clients and
professional colleagues are all
mammalian primates who influ-
ence one another greatly in non-
rational ways that can be under-
stood and invoked to help
client[s] achieve their highest
intentions and goals.”
Technology is also helping
mediators and their clients attain
their goals. In fact, said Daniel
Rainey, chief of staff with the
National Mediation Board, an
independent agency which facili-
tates ADR in the railroad and air-
line sectors, in Washington, D.C.,
“technology is finding its way into
all forms of dispute resolution.”
It’s doing this in two ways. First,
technology is being used to resolve
problems in high-volume enter-
prises such as eBay, which has
roughly six million disputes a year.

“They have a large number of issues
that are reasonably similar and a
narrow range of options,” said
Rainey. “The fourth party—tech-
nology —handles the dispute.”
“An algorithm is developed
based on situations. It walks
parties through the options,” he
explained.

Technology is also being used by human third parties mediating disagreements that are less linear or easily resolved. For example, many mediators are relying on software to help them outline options, set agendas and share information, among other things. Once the parties are in the room together, there are tools that facilitate brainstorming.

“This incredibly speeds up the process to getting to an agreement,” said Rainey.

Once there is an agreement, he noted, single text-editing systems can help to prepare the final draft faster and more efficiently.

As younger lawyers enter the mediation arena, the reliance on technology is only going to escalate, Rainey said. “Generations coming along will integrate technology even more. There will be really interesting shifts over the next few years.” n