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Can we still be friends? Preparing clients for estate mediation

Wednesday, November 25, 2020 @ 1:40 PM | By Juliet Mendonca

Juliet Mendonca %>
Juliet Mendonca
Lawyers have a duty to reconcile broken relationships before venturing into litigation, especially if that relationship involves “family.” Most estate disputes involve family members and loved ones. If someone dies the entire family is emotionally challenged and at that point, if you add the baggage of litigation, it is even more demanding.

Advise clients to resolve disputes during mandatory mediation stage
Rule 75.1 of Ontario’s Rules of Civil Procedure provides for mandatory mediation of estates, trusts and substitute decision matters, in Toronto, Ottawa and Windsor (County of Essex). During mediation the clients move from unravelling the difficult questions, communicating clearly what’s on their mind, evaluating different possibilities and making decisions. A lawyer has to identify the type of dispute and recognize whether it can be restored through mediation.

Some considerations: Are the clients seeking a faster, least expensive means to resolve their dispute? Do clients hope to mend their relationships in the near future? Is there a history of abusive behaviour and violence? Could the parties benefit from mediation? During the mandatory mediation session, it’s the lawyer’s obligation to make the client understand the benefit of settling the dispute at an early stage before venturing into the world of litigation.

Role of an estate practitioner

  • Educate your clients on mediation: Clients need to be educated and have explained to them what mediation is and how the method works in achieving their desired outcome. The mediator is a facilitator who works with both parties to resolve the issue. We have the duty to encourage our clients to evaluate suggested options and alternatives and the possibility of potential agreements. Explaining to your client the difference between the two is essential because they assume that the mediator is a decision maker, but in fact the mediator is only a facilitator. They do not need to convince the mediator but need to learn to work together with the other party to resolve the issue amicably.  
  • Meet your client’s expectations and remind them of the purpose of mediation: As lawyers we need to have an open discussion with our clients regarding their apprehension about mediation. Explain what is expected. Do they expect to heal their relationship with other parties? How has their relationship been with the other party? Can they work together amicably without causing trouble for the other side? Are they nervous about meeting face to face? What are the goals that our client expects to achieve from this process? Understanding the client’s expectations from a mediation gives us a perspective towards working towards the desired outcome. Remind the client about the objective of mediation — it's not to win but to achieve a satisfactory solution.
  • Discuss the cost, risk and benefits of not resolving through mediation: To attract any buyer the retail industry comes out with all kinds of discounts, coupons and sales. Tell your clients that reaching a mediation is like an early bird discount that will cut down on litigation costs. Also not reaching a proper solution during mediation would mean spending extra hours in courts, with all of the additional and increased expenses. Based on responses from litigants, in 85 per cent of cases mediation was said to have reduced costs, with 57 per cent claiming it had a “major” positive impact.
  • Prepare for mediation: One widely shared and exploited flaw in mediation was that some lawyers used mandatory mediation as a “discovery” rather than with the intention to settle. Examine the strengths and weaknesses of each party’s case, both on the facts and on the law. Ensure that the client is conversant with the facts and issues of the case. Many times, we do not get the right facts and during the mediation session we realize that our client simply forgot to mention or did not know about the issues. We need to ensure that clients are aware of the nature of the disputes and have briefed us with all relevant facts involving the issue in dispute.
  • Explore the client’s position, goals and interests: Work with your client to prepare an opening statement. This is a very important aspect which needs to be prepared well in advance and before the commencement of the mediation session.

Based on reports from 2003-2004 for mandatory mediation for estate matters in Toronto, 68 per cent of cases were fully settled, 15 per cent partially settled and 17 per cent did not settle. Mostly, estate disputes are between family members and loved ones. They revolve around emotional issues, financial consequences and years of background history. Mediation is an opportunity to make things right and think with a clear mind about rebuilding a relationship rather than disputing it for the rest of your life. The process of mediation gives an opportunity for the clients to build, establish and maintain harmonious relationships between them.

Juliet Mendonca is a lawyer licensing candidate who was enrolled in the Law Practice Program at Ryerson University. She completed her work placement with Garfin Zeidenberg LLP and is preparing for her bar examinations.

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