Mediation or Litigation?

Not quite a year ago, I almost had the opportunity to mediate a brother and sister who were fighting over their deceased mother’s will and land. I say almost because in the end, I didn’t work with them. They were already in court against each other and working with their separate attorneys. They were too entrenched in the fight of who was right and who was wrong to let go of the battle. The loss of the potential of their relationship was palpable to me. It reminded me all too readily of many family situations I’ve witnessed.

It led me into more deep reflection and prompted me to write this post.

As I have often seen, families go through a lot together. Their parents are frequently the glue that holds them together by loving each of them for who they are.

Unfortunately, when one or both parents pass, a rift often occurs. This can create a large separation in the family, possibly even a lasting one, especially if litigation is involved.

When siblings take their grief into active litigation against one another, as these potential clients did over the will their mother wrote as she was dying, it can create a horrible situation where no one really “wins” and the family, as it once was, is lost.

I have seen clearly how lawyers encourage everyone to stay in litigation by pitting them one against another. The very nature of litigation is that of adversarial posturing and fueling the conflict by the next escalating legal action. In the end, no one really “wins” except the lawyers. Their clients are caught in a huge emotional roller coaster of constant conflict continuously triggering their clients’ flight and fight responses. Their clients are on edge, adrenaline rushing and stress permeating their lives. They are no longer capable of making rational decisions.

The whole litigation process is all-consuming and can take a huge toll on the lives of the participants and their families, both nuclear and paternal/maternal as well.

My experience has clearly shown me that these siblings may be facing the potential loss of their connection, of being in one another’s lives, and of that rich sense of history that comes from a long period of time spent sharing both hard and fun times together, with their children growing up knowing one another.

Because of the absence of the time together that creates shared history, everyone suffers an immeasurable loss. Cousins, aunts, uncles, relatives, and children are not connected to one another anymore. Family vacations and holidays become a thing of the past. People don’t understand this as they go into court against one another, believing firmly that they’re right. They can’t foresee the outcome of the loss of family connection, and how many years the disconnect may permeate their lives.

The creation of the litigation occurs because of a lack of clear, direct communication between those involved, which then leads to assumptions and adversarial posturing between them.

People often carry, strongly and stubbornly, judgments of good, bad, right, and wrong. Litigation fosters those feelings. Mediation, on the other hand, provides understanding and compassion for others, as everyone’s voice is heard and respected accordingly. A greater understanding of what actually happened occurs, along with a collaborative way to move forward.

Mediation can help to heal the situation. Ideally, mediation circumvents the situation altogether, and provides a positive framework for moving forward together, not apart.

Forgiveness, as well as understanding what role you may have played or what ways you helped or contributed to the creation of the situation, are important for moving forward, releasing it and letting it go. Compassion for everyone involved is also helpful in moving forward into resolution. All of these things can happen in the mediation environment,  but not commonly in the litigation world.

Often, unbeknownst to them, family members are carrying out old ancestral family patterns of adversaries: their grandfather fighting with his brothers, their mother fighting with her brother, and their cousins fighting among their generation. The list, if we knew more, most likely goes on.

To shift and change that pattern so family members’ children and the next generation don’t repeat it requires clear, conscious intention. Family members can provide healing for all generations before and after by changing the pattern and doing things differently. Being clear and conscious in our intentions is critical to creating a different, harmonious reality.

Choosing mediation, even if you don’t think it’s needed, can be a life-changing shift in that pattern. Intent is the building block of the outcome. What is your intention? What do you want to choose for yourself and for your family, and for generations to come?

Litigation or mediation? Choose wisely…


EcoFarm 2018

I recently participated in the 2018 annual EcoFarm Conference. Over the last 34 years I’ve presented at this conference many times, and it’s always a pleasure to be a part of an event EcoFarm describes as “a convergence of all sectors invested in building a healthy food system and world” ( This conference, as usual, was full of amazing organic farmers, ranchers, and their supporters.

Along with Maija West, a business attorney (, I led a large group discussion on Communication and Legal Strategies for Farm & Ranch Stakeholders. We were excited to use a new format with participants: role-playing a family meeting!

We started this “family” meeting as I typically do, with a moment of silence followed by an opportunity for everyone to share their voice for a moment. Next we established guidelines and ground rules for the meeting, which I’ve found to be critical to focus on immediately. No matter how well educated or well mannered a family may be, they can always benefit from guidelines and ground rules, which lay a solid foundation to build upon and create effective communication.

Roles were reversed for the participants in our exercise. The younger participant got to take on the role of the father, and the older participant played the part of the son. It was rewarding to hear how the reversal helped them see each other’s perspectives, and the exercise was action packed!

If you’re interested in participating in a workshop with me, I have two Succession Planning Workshops coming up in the next few months. One is in Half Moon Bay on February 26 (with Peninsula Open Space Trust and California FarmLink), and one is in Santa Cruz on March 20 (with Community Foundation of Santa Cruz County and California FarmLink). Check my Events page as the dates approach and you’ll find all the details there.

Need an expert to present and/or lead a workshop? Email me at I’d love to work with you!