Mediation of Estate Disputes
Mediation is a dispute resolution technique. It is different from arbitration or adjudication.
In arbitration or in court, a third party ‘makes a decision’ and it is imposed on the parties to the dispute. In mediation, the parties either ‘reach agreement’ or they do not, but nothing is ever imposed on the parties in mediation.
Mediation can be conducted at almost any time. It can be conducted more than once. It can be conducted completely outside or before any litigation. However, unless there are significant issues of ‘credibility’ of witnesses at stake (which is only sometimes the case in estate matters), in litigation we generally favour conducting mediation as soon as possible after the exchange of pleadings, once the parties have ‘as full as possible’ access to the key facts (for instance, financial records).
Mediation is mandatory in estate litigation in Toronto, Ottawa, and certain other parts of the province. If the parties agree, it can be conducted in any other proceeding as well.
How does it work?
The parties to a dispute (with their counsel) meet with a mediator, who is an independent third party. Mediation words best if all of the parties are physically present in the same place on the same day (mediations by telephone or video conference are sometimes possible but are much less likely to be productive). Each party must be represented by someone with full authority to settle (without the need to get approval from someone else not present).
The mediator tries to help the parties negotiate a resolution. The mediator may suggest possible ways to resolve the dispute, but the mediator will never impose a decision (that is arbitration, a very different means of resolving disputes).
The mediation is strictly confidential, and privileged – this means, that no party can disclose, ever, what was discussed in a mediation. In particular, if the matter does not settle, the parties cannot use anything discussed in the mediation at trial. Accordingly, you are free to speak your mind in mediation without fear that it will hurt you later.
When a mediation is successful it produces a negotiated settlement agreement between the parties. This agreement is one crafted by the parties, not imposed on them. Frequently, mediations end with the parties signing “minutes of settlement”. One of the great strengths of mediation is the flexibility of the potential settlements, which can often address issues very differently from the remedies available to a judge.
What is the process
First, the parties must choose a mediator and set a date.
Second, the parties enter into a mediation agreement. This agreement confirms the compensation of the mediator, the fact that the mediation is strictly privileged and confidential and that no party may call the mediator as a witness at trial for disclosure of what took place at mediation. The mediation agreement is often signed by all parties at the very beginning of the mediation – do not be surprised if you are asked to sign before the mediation begins. This is normal, and very important.
Third, the parties submit to the mediator and to each other mediation briefs which set out their positions, key documents and facts, and the outcome they hope to achieve. A properly prepared mediation brief should, in our view, not just be a recitation of the other materials in the litigation (the pleadings, for instance). The mediation brief should provide a full and frank assessment of your own case and the case of the other sides. Indeed, there is nothing wrong with acknowledging strengths and weaknesses in a mediation brief.
At the mediation itself, the mediator often (but not always) meets at the beginning with all parties and their counsel together at once (referred to as a plenary session). In a plenary session the mediator will explain the process, their role, and the role of everyone else. Plenary sessions are often waived when, for instance, the parties are represented by experienced counsel and the parties have strong inter-personal hostility to each other.
Sometimes, but not always, the parties will present their position to the other parties and the mediator plenary session. Often this is not required (and would not be helpful).
After the plenary session, the parties break into separate rooms. This phase is referred to as “caucus” or “caucusing”. During this phase, the mediator meets with the parties separately to try to find areas of common ground, issues that need to be worked on, and settlement options.
The best mediators do not take sides, but have the experience, credibility and skill to provide each party in confidence with a frank assessment of the strengths and weaknesses of their case (called “evaluative mediation”). Often mediators remind the parties of the painful alternatives to settlement and the costs of on-going litigation.
Does it work?
Yes. Mediation is often successful at resolving an entire dispute. Even when the parties do not resolve the full dispute, mediation can still be helpful for resolving some issues, and narrowing the scope of the dispute. It also provides an opportunity to see the other parties and their counsel in action – which can be very useful information about their personalities, dispositions, skills, and understanding of the facts.
The primary reason that mediation is so successful is that it is a complete contrast with litigation. In mediation, the parties can craft and agree to ‘their own resolution’. In litigation or arbitration, a resolution is imposed on the parties by a third party. Often, the scope of possible resolutions that the judge is legally allowed to consider is much narrower than the range of possible resolutions that the parties will want to consider on their own.
What does mediation cost?
Mediation is not free. A reasonable estimate is that a one-day mediation will cost approximately $7,500-$10,000+HST. Each party must pay to prepare and attend. Also, each party must pay their share of the mediator’s costs (which are roughly what senior lawyers charge).
Why does it work so well for estates?
Mediation works particularly well for estate disputes because:
- The parties usually know each other
- The parties usually know most of the facts of the case quite well
- The parties often have issues and objectives that are quite different from the strict confines of ‘the law’.
- The parties often have non-monetary issues that require non-monetary solutions
- Issues can be resolved in ways that no judge could or would impose
- The cost of litigation is being borne by the parties, and thus they have an incentive to settle.