Mediation is particularly well-suited for estate disputes because it provides for the consideration of factors outside the adversarial arena. Very often in estate disputes there is a multiplicity of interests and motivations.  Mediation provides a forum to not only identify those interests and motivations, but to respond to them.  When a dispute arises in the family context, mediation allows for consideration of the factors that might contribute to the dispute or interfere with its resolution.  For example, family dynamics, suspicion of abuse or undue influence, blended families with opposing views on testamentary entitlement, and interpretation of the testator’s, donor’s or settlor’s wishes can be more effectively considered in the mediation context than during the course of litigation.

Where family is involved, there is often a natural reticence towards litigation.  While the disputants want the opportunity to settle their disputes behind closed doors, they often need the assistance of a neutral third party to reach an appropriate resolution.  Mediation allows for the leveling of the playing field because each party has a voice and can participate in the process.  Each party has the right to have counsel present and the ability to influence the discussion and eventual outcome.  If there is a desire to repair relationships, mediation provides an opportunity for this reparation.  Parties can more readily move from a position-based stance to an interest-based stance.  It is possible that, once the discussion moves to one of interest, the parties will discover that they have common interests that can be brought to bear in resolving the dispute.

It is interesting to note that of the 31 millions people currently residing in Canada, 12.5% (3.9 million) are age 65 or older.  By 2040, it is predicted that 25% of Canadians will be over 65.  While there are currently only 150,000 people in Canada over 90 years of age, by 2026, there will be 400,000.  We are living longer and accumulating greater wealth.  This gives rise to the potential for even more disputes arising on either incapacity or death.  Mediation will be an important tool in resolving some of these disputes, including, but not limited to:

• challenges to the validity of a will (e.g. , preparation, execution or interpretation of a will, capacity to make a will, holograph wills, and will kits);
• personal injury claims (where the incapable or deceased person is injured or causes a third party injury);
• discrimination claims (including age and disability discrimination, and accessibility rights);
• elder abuse claims (including physical, psychological and financial claims, and civil and criminal remedies);
• dependants’ relief claims (where the deceased or incapable person is either the dependant or the provider);
• parental support claims (where the parent is in need and the child is capable of providing assistance);
• variation of trusts (the terms of any proposed variation, subject to court approval);
• grandparent access claims;
• long-term care issues (including consent to treatment and admission);
• power of attorney disputes (including capacity, and use and abuse issues);
• guardianship plans;
• access to health care issues; and
• housing issues (including tenancy issues, house-sharing arrangements and assisted living).

Find out more about our mediation services here.

Definition of Mediation

Mediation is a dispute resolution process by which two or more parties volunarily attempt, with the assistance of an impartial, neutral, trained person, to negotiate and formulate their own consensual resolution of matters at issue between them.

The mediator manages the process but has no independent decision-making power respecting the substantive outcome of the negotiation.

Definition of Collaborative Law

Collaborative Law is a relatively new dispute resolution model in which both parties to the dispute retain separate, specially trained lawyers whose only job is to help them settle the dispute.  If the lawyers do not succeed in helping the clients resolve the problem, the lawyers must step down and cannot represent either client against the other again.  All participants agree to work together respectfully, honestly and in good faith to try to find “win-win” solutions for both parties.  If a party decides to opt out and go to court, the collaborative law process ends and both lawyers are disqualified from any further involvement in the case.

Collaborative law is primarily used in the family law area in BC.  Other jurisdictions are experimenting with its use  in estate law and civil litigation.

Status of Mediation in BC

In November 2007, the Nanaimo Supreme Court registry launched a pilot project allowing any party to a family law proceeding to apply for mediation by delivering a Notice to Mediate.  The Notice to Mediate (Family)  Pilot Project expanded to Victoria and Duncan Supreme Court Registries in April, 2008.

In BC, Provincial Family Court litigants must meet with a Family Justice Worker and attempt mediation prior to setting a hearing unless a matter is urgent.  In Supreme Court, Judicial Case Conferences are a mandatory form of mediation prior to setting an application, other than a few limited exceptions.

The BC Attorney General has a Dispute Resolution office which supports a Family Mediation Practicum Project (of which I am a graduate).  The BC Attorney General’s office is reviewing the Family Relations Act and a recommendation of a required “consensual dispute resolution” (CDR) session prior to being permitted to commence the court process.

As of November 2007, all cases filed at the Robson Square (Vancouver) Registry between $5000 and $25,000 (except for debts) and all personal injury claims will be referred for a two hour mediation session at no cost to the parties.

Lawyers are also using mediators to resolve disputes.  The Law Society has a Fee Mediation Program for fee disputes between clients and lawyers, and the Canadian Bar Association offers mediation services for lawyers who are experiencing issues professionally and personally with other lawyers.

As a family justice reform pilot project, the application of the Notice to Mediate (Family) Regulation was expanded to the Vancouver and New Westminster registries of the Supreme Court on January 1, 2009.  The Regulation enables any party to a family law proceeding to require the other parties to attend a mediation session to attempt to resolve the issues in dispute.  It now applies to family law proceedings in the Nanaimo, Duncan, Victoria, Vancouver and New Westminster registries, regardless of when the proceedings were commenced.  Below are links to the Regulation and information sheets about the family Notice to Mediate process.

Notice to Mediate (Family) Regulation – http://www.ag.gov.bc.ca/justice-reform-initiatives/publications/pdf/Law&Equity296.pdf

Dispute Resolution Office information bulletin about the process – http://www.ag.gov.bc.ca/dro/publications/bulletins/ntm-family.htm

Fact sheet for lawyers and mediators – http://www.ag.gov.bc.ca/justice-reform-initiatives/publications/pdf/NTMFactSheetLawyersMediators.pdf

Fact sheet for the public – http://www.ag.gov.bc.ca/justice-reform-initiatives/publications/pdf/NTMParties.pdf