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.