What can be done to prevent escalation?
As lawyers, we often receive instructions from clients who are in dispute with family members. This could be about a variety of issues, from disputes over distribution of estates, to fallings out over joint business enterprises.
How do we, as lawyers, actually help such clients? Sure, we can provide legal advice and give clients the options available to them. But what about helping them try and resolve the matter without resorting to full blown litigation?
To my mind, three things are key.
What does the client actually want, and why?
In an estate dispute for example, does it really matter if one sibling gets a greater share of the estate? Is it worth years of hassle and stress, and the depletion of the estate with costs sometimes running into the hundreds of thousands? What might be motivating such a client? Is there a residual bitterness in the family dynamics which may indirectly be driving the dispute?
The Court of Appeal decision in Le Couteur v Norris [2018] NZCA 572 released on 11 December 2018 is a classic example of a sister and her brothers at each other’s throats, but with the brothers taking their stance for no discernible reason. Despite ample evidence that their mother wanted their sister to have whichever home the mother resided in at the date of her death, the brothers opposed their sister’s claim to the home under the Law Reform (Testamentary Promises) Act 1949. Why? What drove the brothers to take this approach when there were no less than 25 services rendered (listed in the judgment from (a) to (y)) provided by their sister to their deceased mother? Services including having their mother live with her and her own family?
As the court commented, “Juliet’s care for her mother enabled her brothers to lead their own separate lives without them having to concern themselves about Sidney’s care”. The brothers’ freedom cannot be quantified in monetary terms. Did they try and put themselves in their sister’s shoes, and think about whether they would have in fact traded places given the opportunity? Which brings me to my next point.
Try to see both sides
Most things in life are rarely black and white. Disputes are no different. The ‘other side’ may not be as unreasonable as your client is making out. Perhaps there have been misunderstandings in communication between family members. This is very common where emotions run high. The position can be even worse where there is no direct communication and our clients are relying on what they’ve been told by other family members, for example, as to what the ‘other side’ is saying.
Then there are the old chestnuts of perceptions and perspectives. A ‘perceived’ slight may not have been intended as such. Mediators also often speak of ‘two truths’ when it comes to perspectives. Family members, who often behave differently around each other to the way they would behave around people outside of the family, may remember and/or interpret things differently to each other.
Lawyers’ letters back and forth usually don’t help in this type of situation. It may be more productive to meet with the other side and their legal representative to hopefully get a much clearer picture of what the dispute is actually about.
Mediation
It is staggering how many disputes involving families reach the courts. By the time that has happened, the chances of any kind of continuing relationship are very slim indeed. The recent High Court decision in Huljich v Huljich [2018] NZHC 3429 released on 20 December 2018 begins with Venning J stating “to describe this as an unfortunate case is an understatement”.
In Huljich, 88-year-old Mum sued two of her three sons, and a grandson. The claim ballooned from one cause of action against one son in October 2014, to 14 causes of action against three defendants, involving nine amended statements of claim, with the pleadings themselves being the subject of separate litigation in the High Court and Court of Appeal. None of the causes of action, which included deceit and fraud, succeeded. In fact, most were time-barred, and the court commented at the end of the judgment that there was only one claim which could have been responsibly pursued.
The court also commented that Mum’s perception that her sons and grandson had breached any obligations was misconceived. Thus, any “emotional and mental distress” she suffered and attempted to claim for was “self-inflicted”.
In an ideal world, this case should never have gone anywhere near the courts. The eldest son had, prior to proceedings being brought, offered to meet with Mum or her lawyer, and also suggested arbitration. Open offers were also made repeatedly once proceedings were issued. All to no avail.
Mum “changed advisers on several occasions”. Thus despite the fairly onerous (and arguably in some respects bizarre) restrictions on lawyers stopping acting for clients where such clients are insisting on a course of action to which we are fundamentally opposed, it appears several lawyers did manage to extract themselves before the matter reached court. But of course, given the ‘cab rank’ rule, it would inevitably reach court provided the client had sufficient funds.
It strikes me whilst writing this that some thought needs to be given to the wording of certain client care and conduct rules. How was it in the client’s best interests for this matter to proceed to court? Reading between the lines, Mum may have been vehemently opposed to the concept of settling. Her instructions may well have been “we fight to the death”. How can we help clients, especially given our professional restrictions, who are not doing themselves any favours, and are suffering as a result?
I suggest we keep continuing to promote mediation as a viable option with our clients, regardless of how seemingly opposed our clients are to it. We need to dig deeper in order to properly understand what is driving that opposition.
Mediation can help even the most intransigent parties by, for example, challenging perceptions and shedding light on the numerous complexities involving the myriad of relationships involved. In Le Couteur, the parties did not attempt mediation, as apparently they couldn’t bear to look at each other, let alone talk to each other. Let’s see if we can push past that in these types of cases where far more than money is at stake.
Carole Smith is an Auckland based barrister, mediator and negotiator. See www.carolesmith.co.nz and www.fortyeightshortland.co.nz for further information.