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Business Mediation & Collaboration Services
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"The process of mediation is such that we are able to guide negotiations in to allow both parties to be in control of their own destiny, rather than subject to a third party decision." Ed Kopf, Ph.D., Principal |
Resources
Marital Charters
and Prenuptial Agreements This article describes how the Partnership Charter process, developed over the past 15 years to help family and non-family business partners, can be adapted to help those entering a marriage. Many couples need to address issues concerning business or other assets brought to the marriage by one or both parties. The Marital Charter goes beyond traditional prenuptial agreements by endeavoring to manage the often complex economic aspects of a marital union in ways that will not detract from the couples loving commitment to one another. Successor Partners: Gifting or Transferring a Business or Real Property to the Next Generation Published by the American College of Trust and Estate Counsel, this article explores ways to overcome the risks that arise whenever a business or other asset is transferred from one generation to more than one member of the next. It focuses on various strategies, utilized by the authors, for the successful transfer of operating businesses when the beneficiaries will be partners in the ownership and/or operation of the bequest. Holistic Estate Planning and Integrating
Mediation in the Planning Process This Article discusses holistic estate planning as an alternative to traditional estate planning. Providing a brief background on the development of holistic estate planning, the authors explore the advantages of this alternative method of estate planning, which uses mediation techniques and family dynamics specialists to facilitate the pre-estate planning process. Through the use of two case studies, the authors demonstrate how involving the entire family in the estate planning process can facilitate the transition of assets between generations. Participation of the entire family in collaborative estate planning allows parents, children, and estate planning attorneys to create a better estate plan that will transfer not only family assets, but also family values and traditions. Estate Planning and Family Business
Mediation In this ADR Report for the Bureau of National Affairs, Laura Bachle, writes, “The benefits of using mediation for estate planning and disputes arising from a family business are many. Key among them is the usefulness of confidentiality, as illustrated in the 'Dallas' example-a factor usually not present in estate or business planning. Only mediation holds a promise of reconciliation. Only a mediator is impartial and non-judgmental. Only mediation provides for self-determination.“ The article highlights the use by John Gromala and David Gage of mediatiion in estate planning. Don't Keep Your Estate Plans A Secret “Three-fourths of older Americans say they plan to hand down money, real estate, or other assets to their heirs, but few have taken the time to discuss it with their family. Such secrecy can lead to an explosive combination of grief and resentment among adult children long after parents are gone and unable to explain their intentions.“ Kiplinger's quotes the chairwoman of the AARP Investment Program who explained, “Money and death remain taboo conversation topics that can lead to sibling squabbles, unnecessary legal expenses, unpleasant surprises and missed opportunities.“ David Gage is quoted in the Report saying that passing money and possessions to children means different things to different parents. “For some it's a way of expressing love; for others it's a way of being loved. And for others, it's a way to keep their children beholden to them.“ Beside citing other reasons why it is useful to share thoughts about estate planning with adult children, the Report relates a story from Dr. Gage of one family's unfortunate experience with keeping plans a secret. What Do You Owe Your Kids? Writer Patricia Estess catalogues the range of challenges facing parents who want to leave something to their children and then offers suggestions for how to do it wisely based on her interviews with numerous professionals. Social worker Linda Alperstein says parents must ask themselves what they are trying to say with their money and be clear about it. “It's important to know what's motivating you.“ Estess points out that parents have great leeway in carrying out their wishes but parents shouldn't have kids wondering about their motives. Discussions are in order. “The value of these discussions is that they can clear up misunderstandings and mistake expectations that can't be resolved at the time of the reading of a will“ comments David Gage, Ph.D. a clinical psychologist for BMC Associates in Washington, D.C. “If you're not around to participate in the discussion, the anger, hurt and unresolved feelings become the legacy, rather than the money you were trying to protect for the family.“ Family Estate Feuds: Inevitable or Avoidable? This short article in the finance magazine tells a story of one family's attempt to work out the transfer of money and assets from one generation to the next with the help of their advisors. “The fatal flaw at the heart of this estate-planning process was that no one was thinking about the welfare of the entire family. No one was thinking about what could be done for the mutual benefit of all the Andersons. Without such a flywheel to regulate it, the estate-planning process had spun out of control. Conflict is natural and normal in even the happiest and most loving of families.“. Planning for Future Generations This Ticker magazine cover story is about the unprecedented intergenerational transfer of wealth taking place in the U.S. today and the strategies financial planners employ to make it happen successfully. “While the goal of generational planning is clearly to perpetuate assets for as long as possible, through as many generations as possible, long-standing family feuds can get in the way, planners say.“ Riss quotes the authors of Generations, William Strauss and Neil Howe, who said, “Much of the stress in cross-generational relationships arises when people of different ages expect others to behave in ways their peer personalities won't allow.“ Riss gives this advice to financial planners working on estate matters: “One way for you to cope with generational conflicts that may arise among family members during the estate-planning process is to bring in a mediator.“ She describes that BMC has been mediating family feuds for many years. Quoting David Gage, BMC's founder, she says, “Estate planning is extremely personal, but is often done in an impersonal way.“ Mediators help to ensure that the process is about minimizing the likelihood of conflict, not just taxes; and about preserving and enhancing relationships, not just preserving financial assets. The Use of Mediation In Estate Planning Trusts and Estates the highly acclaimed journal for estate-planning professionals, published this article by John Gromala and David Gage to introduce the use of mediation as an estate-planning tool to its readers. The authors describe how the use of a mediator provides the attorney with a way to be professionally ethical and avoid possible conflicts of interest without sacrificing the clarity that is achieved when on person has separate discussions with each interested party. The mediation process can provide attorneys, accountants and financial advisors with valuable information about the clients' subjective interests and needs that should be addressed in the estate plan. Mediation in Estate Planning: A Strategy
For Everyone's Benefit Mediation has been used for years for resolving will and trust contests and disputes among heirs and between heirs and personal representatives. Using examples of cases, the authors describe why it is much better to nip these problems in the bud — during the planning stage — before they have a chance to damage important relationships Trustee/Beneficiary Mediation = Less
Litigation This Trusts & Estate article was written by John Gromala and David Gage for estate planning and estate-administration professionals. It discusses how mediation can be extremely useful in situations where the beneficiaries of trusts and trustees come to be at cross-purposes. Misperceptions and misunderstandings can creep into the relationships between beneficiaries and trustees and the consequences can be serious and costly. The authors provide an interesting case to illustrate how easy it is for the relationship to go off track and how mediators can resolve the problem. Mediators are in a position to sit down with the parties involved — separately and together — and foster cooperation and collaboration so that a mutually satisfying resolution to the problem can be achieved with minimal time and expense. Wealth & Family Finances Some siblings who inherit assets from their parents have a challenge ahead of them: how to work together to handle what they've been given. Judy Martel of Asset Management Advisors, the author of this Town & Country column, wrote that when assets are transferred within the family, "keeping them in the family or deciding what to do with them requires a dedicated effort at communication." She describes how more and more families are deciding to meet with mediators and consultants for assistance with this challenge. The meetings can occur either as a pre-estate-planning process or after the transfer of wealth has taken place. The article describes how Florida executive Susan Remmer Ryzewic and her family held a series of professionally run family meetings that helped them work through their various roles and deal constructively with one another so that they did not have to suffer what Ryzewic called "relationship trauma." "Such gatherings, increasingly popular among wealthy clans and facilitated by paid consultants, can take a variety of forms," according to Martel. "Periodic big-picture meetings are among the best ways of ensuring that these discussions take place and of making all family members aware of one another's ideas, goals and concerns." Lee Hausner, a California psychologist and author of Children of Paradise is quoted, saying, "I tell families that if parents make plans for the money that they do not discuss and thus do not make clear, they are sowing the seeds for psychological cancer in the next generation." Martel offers five tips for conducting this type of family meeting: Families can try to meet without professional help, "but when significant assets are at stake or it is especially difficult to bring family members together, seek professional help. The cost of a consultant is roughly $2,000 to $6,000 per day. Compare that to the cost of litigation, which can run into hundreds of thousands of dollars (not to mention the emotional cost to the family)." Consultants will usually talk with family members individually prior to the meetings to assess areas of concern. "For families with many members or especially complicated assets, professionals may suggest a retreat of a few days, to isolate everyone from distractions." Martel cautions people not to expect miracles from just one or two meetings. Such families often have unique and complex goals to accomplish such as family philanthropy, estate plans, or developing a structure for operating existing businesses. In her final point, Martel quotes David Gage. "Planning for the future should be a joyful process, one that is celebrated rather than feared." It is really about a gift from the parents to their children and their children's children. Managing Conflicts and Family Dynamics Philanthropic families face challenges in managing their conflicts from a family dynamics perspective as well as from a philanthropic perspective. This issue paper published by the National Center for Family Philanthropy explores the problem of conflict in family practicing philanthropy and describes how it typically surfaces. It offers advice and guidance from experts on how to manage these conflicts, shares stories of families who have experienced conflict, and describes how they have addressed this conflict. Deborah Brody writes about the many methods that families might use to resolve conflicts. Among them, she says, is mediation. She writes, “David Gage, who specialized in family therapy early in his career as a clinical psychologist, believes that mediation is a more effective and efficient approach than family therapy for people who need to make decisions together in their family foundation, business, or estate. He explains it this way, ‘Family members who are working together have a job to do and it works much better to approach their conflicts by focusing on how they can get along better today than by focusing on what Johnny did to Suzy when they were kids. By making the present relationships more satisfying, it can actually alter the way people feel about what happened 20 years ago!’ “Creating healthier relationships with family is immensely helpful because these relationships are among the handful of most important relationships that people have in their entire lifetimes. Working through difficulties with family members is one of the most therapeutic experiences anyone can have because it leads to changes in relationships with other people. “Mediation can be extremely helpful with a wide range of conflicts such as when a family member feels that they are being treated unfairly, or to assist with negotiations over who has what responsibilities and authority. Mediators often help foundation boards come to agreement on principles for making decisions and guidelines to follow if various crises should occur. A distinct advantage of this type of process is that mediators assist the participants to collaborate, see their problem as one that they share, and develop agreements that have everyone’s backing and support because they helped create the agreements.“ The entire issue paper can be purchased at the NCFP website. |
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