Introduction and Benefits of Mediation
Mediation can have a myriad of applications in the legal environment and has become increasingly popular as a means of alternative dispute resolution in recent years. There are a number of reasons why this dispute resolution method is often effective for resolving legal disputes, and for estate disputes in particular. Some of the benefits that have been discovered versus more traditional approaches to dispute resolution are:
- Can be inexpensive and cost-effective for willing participants;
- Faster and more expedient than court proceedings;
- Procedurally simpler than court procedures;
- More private than public court proceedings and going on the record;
- Focuses on underlying issues to define what is satisfactory to both parties;
- Helps clarify what has contributed to the conflict;
- Often allows for a collaborative, better solution, rather than a ‘winner’ or ‘loser’,
- Less adversarial;
- More likely to preserve relationships;
- Allows parties to have legal representation or not;
- Parties meet in a setting where power imbalances are managed;
- All parties have the ability to participate;
- More participant control over the process and details;
- Can explore multiple settlement options and arrive at a mutually beneficial solution; and
- Addresses legal needs, but also familial, financial, ethical and emotional needs.
Examples of situations that might benefit from estate mediation are: the administration of an estate of a deceased or incapable person, the use or abuse of a power of attorney, questions surrounding capacity and undue influence, challenges to the validity of a will, elder abuse claims, dependents’ relief claims, parental support claims, variation of trusts and long-term care issues. Added benefits to estate mediation in particular:
- The nature of relationships between family members, who wish to maintain a relationship moving forward;
- Mediation offers a way and means to repair relationships, rather than provide an imposed resolution from an uninterested party like a judge;
- Often there is a common wish to arrive at timely and satisfactory resolution to a troubling situation; and
- It grants the parties a collaborative decision rather than assessing liability or laying blame on one party over another or imposing sanctions
Two central components of many mediations are that it is consensual and “closed”. The mediator cannot impose a decision upon the parties involved or force any resolution. With respect to it being “closed” or “without prejudice”, it means the parties are able to disclose and review all relevant information and to discuss various offers or proposals for resolution, without the worry that it may be used against them later in litigation the dispute cannot be resolved by agreement.
Mediation is a more fluid process than litigation and will allow the exploration of remedies that may not be appropriate within the court-context. It grants the participants the flexibility to share their stories or emotions without judgment or fear that it may be used against them. It is a particularly important tool when there is a need for an ongoing relationship between the parties. That said, if there is a lack of full disclosure, a serious lack of trust or a significant power imbalance, mediation may not be suitable.
In estate disputes, there is often a complex web of issues, interests and motivations. A skilled mediator can help manage a complex environment of multiple parties, family dynamics, financial issues, legal issues, health issues and often strong emotions.
Preparing for a Mediation
One the key requirements of mediation is full and transparent disclosure of all relevant facts and information from all parties involved. In order for the parties to arrive at a fair settlement, they must have full disclosure of all facts. Often in litigation parties hide their positions from the other for strategic purposes. In mediation, everything is on the table, so to speak, so all parties can feel secure that the other has been forthcoming.
The mediator must be unbiased and independent from the parties. Choosing the right mediator for the dispute is an integral part of the success of the mediation process. There are different mediator styles – evaluative, facilitative or transformative. An appropriate mediator style and relevant experience are important considerations at the outset to ensure the process is as effective as possible. Especially within the estate mediation context, when a willmaker is doing an estate plan, it is important for the willmaker to feel comfortable with the mediator to ensure that their wishes are being appropriately honoured.
The importance of preparation for the mediation cannot be overstated for the mediation to operate successfully. Some considerations in the planning stages are the following:
- The appropriate format for the mediation;
- If the mediation should be more formal or more casual;
- Any specified rules that the parties should follow within the mediation context;
- Whether the parties wish the mediation to be confidential (usually yes);
- ensuring full and transparent disclosure of all relevant data and information;
- The best location for all parties involved; and
- Whether the parties will attend with counsel or on their own.
In preparing for the mediation, it is good practice to first prepare a mediation brief, either through counsel or by the parties themselves. This document includes the issues in play, all the relevant facts and a summary of the law that pertains to the issues. The brief may include a party’s position on settlement. The mediator should also receive copies of all relevant documents and filed pleadings.
The mediator will usually conduct separate intake sessions with each party before a mediation will commence. This will give the mediator the opportunity to get a sense of where each party is at in terms of their position and settlement desires. It also allows the mediator to better understand the characteristics of the parties, how they might behave during negotiation or their willingness to settle and compromise. The mediator will be able to assess from the outset the level of conlict and how committed each party is to the process. After an intake session, a mediator may decide that mediation is not appropriate for that particular situation or legal issue.
A sample pre-mediation intake session agenda could be as follows:
- Discuss the confidentiality of discussions between the mediator/counsel/parties;
- Confirm the identity of the party;
- Screening for domestic violence, if necessary;
- Issues to be submitted to mediation;
- Openings and joint sessions;
- Exchanging materials in advance of the mediation;
- Delivery of materials to the mediator;
- Any offers to date and whether they can be shared with the mediator;
- Mediation briefs and deadlines for submissions;
- Any set trial dates;
- Special needs of any participants;
- Other procedural aspects;
- Retainers; and
- Other attendees or observers.
Intake sessions with the individual party and the mediator also gives the party the chance to evaluate whether they feel that they can work cooperatively with the mediator, and whether that choice of mediator is appropriate for their dispute.
The Mediation Format
The format of mediations can vary widely, depending on the circumstances. The following is an example of what a typical mediation might look like:
- Preliminary preparations;
- Mediator’s overview;
- Opening statements/Storytelling by parties;
- Information gathering;
- Issue identification;
- Agenda setting;
- Caucus (optional);
- Option gathering;
- Bargaining and negotiation;
- Agreement/Settlement; and
A mediation will start with the signing of an Agreement to Mediate. This document, signed by all parties to the mediation as well as the mediator themselves, sets out the purpose of the mediation, which is to attempt to resolve the issues in dispute. It also confirms that the parties agree to conduct themselves in a bona fide and forthright manner and to make a serious attempt to resolve the matter fairly and equitably. They confirm that they agree to work together with the mediator to develop options and negotiate alternatives. The Agreement to Mediate then sets out what the mediator will do for the parties, such as discuss matters and keep information confidential, and what the mediator will not do for the parties, such as make decisions for the parties or act as their legal counsel. Further, they will remain neutral and will not advance the interests of one party over the other. The Agreement to Mediate will also typically set out the fee structure for the mediator, to ensure that the parties are able to pay for their services. Furthermore, it specifically states that the parties will agree to provide full disclosure to the mediator of all material information relating to the dispute to be resolved, and may state that if the Agreement entered into did not have full disclosure made, then the consequence may be that the agreement will be set aside. The Agreement may also be set aside if any undue influence comes to light. Other areas that an Agreement to Mediate might set out are: that the mediation is conducted without prejudice, the conditions of termination of the mediation process, what happens upon settlement between the parties and the availability for the parties to receive independent legal advice.
At the commencement of the session, the parties may be provided with the opportunity to speak and provide an introduction of the issues in their own words, or they may have their counsel speak on their behalf. These opening statements, or the “Storytelling” part of the mediation, are important to ensure that the parties feel that they are being heard and have the opportunity to tell their story. After the opening statements, the mediator may summarize the statements to ensure that they have correctly understood each side’s position, and they will move on from there to set the agenda.
Sticking to an agenda throughout the mediation is important so that the parties have a clear view as to what happens next, and everyone is on the same page. Particularly with mediations, some parties might get stuck on a specific issue, and having an agenda and the mediator to facilitate the discussion can get the parties back on track and save time. There are options during mediation for the parties to separate from each other and meet with the mediator privately to discuss their positions. This might be a good option for parties that are particularly contentious or have difficulty being in the same room as the other party or parties. These private sessions with the mediator are also called “caucuses” and can be elected into by any party to the mediation, but are an entirely optional part of the mediation process. Within the caucus meeting, the party can discuss the progress of the mediation confidentially with the mediator and share and receive valuable information to help move the process forward. A caucus meeting is an opportunity to regroup and for the mediator to point out issues that might require further consideration.
Another tool that a mediator might use in the process is known as shuttle diplomacy. In this situation, the mediator will go between two or more different rooms where the parties are with or without counsel present. The mediator will mediate the dispute by going back and forth through the rooms with various proposals and offers for each party to consider and to relay information. Typically this type of mediation is only done where the parties are so contentious that they cannot work within the same setting to achieve their goals or are too adversarial to discuss face to face.
Once an agreement has been arrived at, the mediator will usually draft up a memorandum or settlement agreement, also known as a Minutes of Settlement. However, if no settlement is reached within the mediation, it is still important for the mediator to provide the minutes of the meeting and provide them to all parties so that there is record of the progress made. Sometimes the parties may just need time to regroup after a mediation before they can come to an agreement or settlement The parties may wish to obtain independent legal advice before they sign anything if they do not have counsel present at the mediation. At this stage, the parties can schedule a subsequent mediation session to reexamine any issues that remain outstanding or they can proceed with litigation if they are not committed to the mediation process. In some cases, a mediator will have a draft Minutes of Settlement prepared in advance of the mediation. If the parties do reach a settlement that day, the terms can be finalized and signed before the parties leave.
Estate mediations are often “closed” mediations, where the discussions that take place cannot be quoted later on in court or through arbitration. The mediator cannot be called upon to give evidence either at an arbitration hearing or at a court hearing and the notes made during the mediation cannot be subpoenaed. Closed mediation, as a process, allows for a more open style of communication and for the parties to fully and honestly discuss issues that are at the source of the conflict and brainstorm settlement options without fear that they will be used against them later on.
When Mediation Fails
Here are some reasons why an estate mediation might fail to succeed:
- The parties do not understand and have not been educated about the process.
- The parties do not realize that time and effort on their part is necessary and fail to plan for the session accordingly.
- Mediation is not a substitute for counsel planning and analyzing the law and the case (Mediation helps counsel advocate a position – it does not replace the need for advocacy).
- Mediation advocacy is overly aggressive or too passive.
- There is a failure to provide appropriate facilities, including accommodations for special needs, breakout rooms, washrooms, smoking areas and so on.
- There is a lack of good faith or commitment by one or more participants.
- The parties have unrealistic expectations of the mediation process;
- The participants lack the authority to resolve the case.
- There are overly contentious participants or counsel, or both, who fail to recognize the shortcomings of their case.
Many of the above can be resolved before the mediation even begins, by properly preparing for the mediation and paying particular attention to ensuring that the setting, the parties themselves and the case has fully been considered in advance.
Be aware that even though the parties may reach an agreement at an estate mediation, there might be other factors that can hinder their agreement from being enforced, such as legislated judicial discretion, policies in place from Canada Revenue Agency and/or the responsibilities of the Public Guardian and Trustee.
As a party-driven process, and the more informed and prepared the parties are, the better and more effective a mediation will be. Parties must be aware that they are in control of the resolution of the matter and that it will not be decided for them. They also should be prepared to step away from positions and problem solve cooperatively with the other party or parties. In order to do this, parties have to present their side of the issues but they also have to be willing to listen to the other party and their perspective. And perhaps most importantly, the parties need to have reasonable expectations pertaining to the mediation and what is possible for settlement. Counsel is helpful in this regard as they can advise their clients about what they can expect throughout the mediation process. It is more difficult to rein in expectations when the parties are not represented and/or are not willing to compromise. There will be back and forth and give and take throughout mediation, and the parties need to be prepared for that process. It has been said that a mediation is won or lost before it starts by the party who is most prepared.
- The Mediator
The mediator, in addition to what has been discussed above and what has been included in the Agreement to Mediate, is a neutral facilitator. The mediator directs and orchestrates the discussion between the parties and helps to lead the parties towards forward-thinking and potential settlement. The style of the mediator is multi-faceted and varies from person to person, but regardless, they are there to control the process, but not make any decisions for the parties or advise them of their legal rights. While mediators also tend to also be lawyers, it is not their role to advise one party to the exclusion of the other or to advocate for the parties. A mediator can be evaluative, facilitative, transformative, or a mixture of these styles. A mediator can assist the parties in moving forward from a particular topic that they might get stuck on, in order to continue the process. The mediator can also come up with creative ideas for the parties to consider in terms of the settlement or might suggest the parties consider “splitting the difference” once they are very close to settlement. Note that it is not the responsibility of the mediator to ensure that each party adheres to the agreement that is reached during mediation. If enforcement becomes an issue, then the parties will need to seek legal advice.
2. The Parties
The mediation process is voluntary. It will only work if the parties genuinely want to resolve the conflict through this process. All parties to the dispute must participate and have authority to settle.
Counsel can assist parties to prepare for the mediation, with advocacy at the mediation and to facilitate documenting any settlement. Counsel can be particularly helpful where vulnerable parties are involved to balance an uneven playing field. Parties may be elderly, have capacity issues, may be the victim of undue influence, may be reliant on a caregiver, or have other challenges involving gender, race, ability, etc. It is best for counsel to discuss with their client in advance of the mediation how much participation the client wants their lawyer to have in the discussion. While some may find it advantageous for their lawyer to do most of the talking, some also might want the lawyer to remain more on the sidelines and only jump in when they feel it necessary. It depends on the circumstances and how comfortable the client is in participating themselves.
It is also important to note that if one party is represented and another party is not, that the represented party’s counsel should take this into consideration and act professionally towards the unrepresented party. There is usually a striking difference between a party who has a lawyer and those who do not, and special care should be taken, especially by the mediator, to mitigate any imbalance of power in the room.
Counsel may also encounter the need to control their client’s behavior during the mediation. As disputes can run high and emotions can get carried away, the lawyer might need to ask for breaks throughout the process. However, it is also important to realize that these emotions may be part of the healing process that mediation can facilitate and may need to be examined further with the input of the other party in order to make the appropriate repairs to the relationship. Counsel and the mediator both need to be especially attuned in these environments and ensure an environment of safety and respect between the parties.
Other roles that a party’s counsel will take with respect to the mediation will be to prepare fully, to participate in the discussion and advocate for their client, to keep the mediation information confidential, providing background information to the mediator and possibly assisting with the drafting of the final agreement, if necessary.
Issues in Estate Mediation
There are complexities that arise with respect to estate mediation, and a few of these challenges are:
- There may be concerns relating to the physical and/or mental health or capacity of one or more of the parties involved, including if the party is on medications;
- How to assess and possibly repair or manage a serious breach of trust between the parties;
- The dynamics of a family and how that family is composed;
- The importance of preservation of family property;
- Upholding the autonomy and rights of self-determination of all parties, particularly elderly participants;
- The rights of beneficiaries; and
- Blended families.
Capacity is a common issue in an estate dispute. This may be due to age, but it also could be from a disability or addiction. Often the need for a capacity assessment will arise where there are disputes concerning the need for or the use of a Power of Attorney document, or a dispute after death challenging the validity of a will due to incapacity or undue influence. There also might be issues revolving around how to manage a Representation Agreement and the personal care of someone who has lost capacity.
There may be disputes between a parent and their child or children about diminishing capacity, personal care arrangements, the management of personal care or financial arrangements, siblings fighting over their parents’ care, etc. The prevalence of some sort of personal or financial abuse in incapacity situations is higher. There may be competing interests in some circumstances, for example, if the representative under the Representation Agreement is different than the Power of Attorney for financial decisions. There may be contention over whether to preserve finances or provide a higher standard of personal care.
It is also very important to act quickly where capacity is or may be an issue, as capacity may be diminishing, but not yet diminished completely. This is another one of the benefits of mediation over litigation because the mediation can take place right away. If there is an assertion of financial or personal abuse, that is another circumstance where the mediation should take place as soon as possible so that the harmful situation is stopped.
However, due to the nature of estate disputes, mediation may not be the best process suited to the situation. There may be such high animosity and such low trust between family members, that there might not be any way to arrive at a negotiated settlement where the parties need to collaborate and settle their dispute between themselves.
With an aging demographic and the high expense, risks and delays of litigation, estate mediation will continue to be a popular process to resolve estate disputes. While it may not be the best process for every situation, there are many that could benefit from mediation. With the help of an experienced, impartial mediator, it is a solution-oriented option for families who seek a workable, higher quality resolution to estate disputes without the delays, stress and costs of formal litigation.