Generously funded by the Law Foundation of British Columbia, this report is the first comprehensive and internationally comparative study of elder and guardianship mediation in Canada.

As a person ages, mediation may be used to resolve disagreements in the context of estate planning, financial planning, organizing caregiving, developing a housing plan, discussing lifestyle choices—varied circumstances where an older person may involve family or other support people in problem-solving, especially where there is a desire to resolve a legal matter without going to court.  Anticipated changes to guardianship law in BC include mandatory mediation in certain circumstances.

Elder and guardianship mediation is a new but growing area of practice.  The work gives rise to complex ethical and practical questions in regard to maximizing the ability of the older person to participate in decisions about his or her future as well as ensuring age-based discriminatory assumptions and values are not affecting the decision-making process.

“As a province we are now at the precipice of proclaiming new legislation governing adult guardianship mediation and also of tremendous growth in the field of elder mediation, based on demographics,” says Executive Director Jim Emmerton.  “In order to move forward practitioners, policy-makers and educators require access to comprehensive information on elder and guardianship mediation.  This report fills that need.”

This large report includes consultation feedback from elder mediation leaders from across North America and compares lessons learned from key pilot guardianship mediation programs in other jurisdictions in the US and Canada.  The report concludes with recommendations for training and standards for elder and guardianship mediators, ethical standards for practice, mediation models and styles, as well as for the design and development of a court-connected adult guardianship mediation program in BC.

The report is available online at http://www.bcli.org/ccel/projects/elder-and-guardianship-mediation.

The Canadian Centre for Elder Law strives to be a leader in law reform by carrying out the best in scholarly law reform research and writing and the best in outreach relating to law reform as they relate to older adults.

There is a lack of a common definition of a family business but it is generally considered to be a business with two or more family members who have financial control of the company and there is some intent to transfer the business to the next generation. Over 90% of family businesses in Canada are family businesses.

Family businesses employ approximately six million Canadians and an average family business employs approximately 18 employees.  The total annual sales of Canadian family businesses are estimated to be $1.3 trillion.

Family businesses are often reflected as a system of three intersecting circles: the business circle, the family circle and the ownership circle.

The most successful family businesses have a balance and clear boundaries between the three circles with professional business management, responsible ownership and a harmonious family culture.  Assisting families to successfully manage the three spheres presents difficult dilemmas.

How do you balance individual desires and differences with the interests of the family and the development of a shared vision?  Are the interests of the business or the family more important?  How do you celebrate tradition and successes of the past while focussing on the future and a rapidly evolving business climate?

What does it mean to be a successful business owner and how does that differ if you do or do not have a role in the family or business management circles?

How does the business successfully transition from the founding entrepreneur, to the sibling partnership to the cousin consortium stage?

Succession is the greatest long term challenge that most family businesses face.  Less than one third of family businesses make it to the second  generation and only approximately 13% make it to the  third generation.   The failure to plan and manage succession well is the greatest threat to the survival of a family business.  This not only has significant impacts on the hopes, dreams and wealth of individual family members but also on the greater economy as a whole given the pivotal role family businesses play.

The most successful succession plans involve careful planning over many years, and it is the CEO’s responsibility to initiate and manage the process in a timely manner.  The CEO must develop a strategic business plan, create a process to identify and choose successors and train potential successors.  The CEO must ensure that an adequate estate plan is put in place.  The CEO must prepare the family for succession, often through the development of a family mission statement that elucidates the family’s relationship with the business.  The CEO must ensure that the next generation of owners is educated on how to be effective owners and to function well as a co-ownership team.  The CEO also needs to focus on preparing for a financially secure and enjoyable retirement or second career.

Given how high the stakes are and its pivotal role in the future of the individuals involved and the business itself, the succession process can be filled with tension and conflict between individual and collective family, business and owner stakeholders.

One way to manage the complexities of the family business succession process is through professionally mediated family meetings.  A professional mediator can assist by convening the meeting including determining who will participate and obtaining buy in for the process from all the parties; assigning roles and responsibilities including setting the agenda and ground rules; facilitating group problem solving including involving appropriate experts; reaching and recording agreement; and holding parties to their commitments including monitoring changing circumstances and arranging to reconvene as necessary.

Whatever the purpose of convening a family meeting, the process of gathering as a family to communicate in a structured way can encourage members to act on important and shared values, with valuable results for both the business and the family alike.  Family meetings also often spark a desire to codify a family constitution or mission statement articulating the family’s values and the mechanism by which they are expressed in the business, the family and the community as a whole.

Succession may be the most difficult life cycle of a business, but it also has the highest rewards.  Why not start today.

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