Despite the fact that the vast majority of conflicts I am called upon
to work with resolve within the peacemaking process, I am still in awe of
the power of the process. A recent conflict illustrates my point.
The dispute was based upon an estate. Grandfather died leaving three
surviving children. His fourth child was killed in action during the Vietnam
War, but left children of his own--two daughters and a son. They were the
grandchildren of Grandfather and the nieces and nephews of the surviving
children.
Grandfather’s will was not a model of clarity. In the introduction, the
will stated:
“I have one deceased child who died leaving no children.”
This statement was clearly wrong in fact.
The ending clause in the will stated:
“If any of my children survive me, the residue of my estate shall be
divided into as many shares of equal market value as are necessary to create
one share for each of my surviving children and one share for each of my
deceased children who die leaving children. I give each share created
for a surviving child outright to that child, and I give each share created
for a deceased child with children outright to those children.”
Thus, the clause contemplated that the grandchildren of a deceased child
would inherit a share equally with the other children.
The lawsuit framed the issue very clearly as a win-lose proposition.
The surviving children claimed that because of the introduction, Grandfather
did not intend to make a gift to the grandchildren. Thus, the children
were entitled each to 1/3rd of the estate.
The grandchildren claimed that the ending clause clearly granted them
a ¼ interest in Grandfather’s estate that would be shared equally
among them. If the matter proceeded to trial, one side would clearly
win and the other side would clearly lose. The problem was predicting
who the winner would be. The parties had scheduled the mediation for
a full day, and I estimated it might take all of a day plus some to come to
resolution.
After listening to each side’s perspectives, including the personal perspectives
of the children and grandchildren, the legal perspectives offered by their
very competent attorneys, and the business perspective offered by the executor
of the estate, I concluded that this matter could not be resolved by traditional
negotiation and compromise. Consequently, I engaged the parties and their
attorneys in an interest-based process.
As everyone articulated their interests, some interesting information
surfaced. No one was really interested in the money. Everyone wanted
to respect Grandfather’s wishes. The grandchildren wanted to be respected
and accepted as members of the family. (Their mother had remarried
and had apparently not maintained a close relationship with Grandfather.)
The grandchildren also wanted their father to be respected and his memory
to be treated fairly. The executor, who was one of Grandfather’s sons, was
concerned about the welfare of his sister and brother. They were getting
older and needed financial security. All of a sudden, the discussion
turned away from winning and losing to problem-solving. How could these
interests all be satisfied?
Other than for a brief private meeting, the parties never went into separate
caucuses or meetings. All of the discussions were face-to-face and actually
became amicable. The hostility and anger of the first hour had transformed
to a cooperative, collaborative atmosphere. Three hours after starting
and to everyone’s surprise, we had an agreement.
This conflict typifies a common situation: Parties tend to look
at their disputes from a competitive, “I have to win; you have to lose” perspective.
This is often an illusion masking the underlying interests. They will never
agree on who’s interpretation of the will is correct. If they cannot
get past that win-lose perception, trial will be inevitable. Of course,
the trial outcome will destroy relationships, be costly, and leave a winner
and a loser.
The peacemaking process ignores the superficial characterization of the
conflict as a competition to be won or lost. Peacemaking focuses on
the interests and injustices of the parties and invites a collaborative conversation
about how to satisfy all interests with minimal compromise and, as much
as possible, to make right all injustices. Even though I have seen
the power of peacemaking work in the most intractable disputes, I am still
amazed by its power.
Douglas E. Noll, Esq. is a lawyer specializing in peacemaking and mediation
of difficult and intractable conflicts throughout California. His firm,
Douglas E. Noll and Associates is based in Central California. He may
be reached through his website
and email at doug@nollassociates.com