Listen to:Settlement and the ADR Process-Part 2
This week on Hull on Estate and Succession Planning, Ian and Suzana continue the discussion on mediation, settlement and the ADR process. Topics discussed include: what is crucial to a case, good preparation, and the purpose of an open session.
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Ian M. Hull – Click here for more information on Ian Hull.
Suzana Popovic-Montag – Click here for more information on Suzana Popovic-Montag.
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Suzana Popovic-Montag: Hi and welcome to Hull on Estate and Succession Planning. You’re watching and some of you may be listening to episode 205 of our podcast.
Ian Hull: Hi Suzana.
Suzana Popovic-Montag: Hi there, Ian. How are you?
Ian Hull: Great, thanks.
Suzana Popovic-Montag: That’s good.
Ian Hull: Just came back from a Law Society Seminar on File Destruction and File Maintenance. An interesting seminar. The Law Society has come out with a guideline for us in Ontario here on how we can manage those files. And giving it some really good heads-up on some of the issues. And one of the things that struck me with the seminar was that there isn’t an easy answer. That’s what law is all about. And we wouldn’t be at the seminar if we thought there was an easy answer. If the question was just destroy your file on a certain date and walk away, we wouldn’t have had to have the seminar. So great guideline there. Highly recommend to people to get on the Law Society, get looking at that guideline, if you’re interested in that issue. And I’d been fortunate enough to participate as one of the speakers at it and had some fun with the whole issue of special issues relating to Wills and Estates.
Suzana Popovic-Montag: Actually it’s really funny, Ian, that you call it the File Destruction Program. Because if I have any recollection of the title of the program, I thought it was File Retention.
Ian Hull: Ah, did I say Destruction?
Suzana Popovic-Montag: Obviously see where your bent was.
Ian Hull: That’s right. Well file destruction in the Wills area, of course, is it lasts forever because we have the curse of really…and I mentioned this at the seminar, when you think about it in this day and age, in the electronic age, the only original document that actually matters anymore is a Will. There’s really nothing else out there. Now, I mean, that’s an over-statement. Some crazy hearsay rule of some judge might want to tie in original documents record but typically on balance, the only hard copy document that matters anymore is the Will. And it was an interesting discussion we had about that. And a couple of other things came up, but you’re right. It isn’t file destruction; it’s file retention. So caught me on my grammar and she’s good at that.
So let’s turn now back into our Estate world of ADR and mediation. And we talked about in our last podcast the idea that we are in Toronto anyway, but in many jurisdictions, going to mediation. And we’re trying to get people to get the feel of what it’s like to be at the mediation day. Sort of give you a heads-up to what you’re getting yourself into. And one of the discussions is on getting the ducks in order, that whole idea. And it’s a legal concept but it’s a very colloquial term. What are we getting at when we say for mediation, we want to get the ducks in order?
Suzana Popovic-Montag: Well Ian, as you say, in Toronto anyways, we’ve got mandatory mediation. And so you’re required as a litigant in an Estates and Trusts matter to actually go to mediation. So it’s part of the Order that you get at the very initial, beginning part of the litigation when you set up the litigation. It’s called an Order for Directions and will include a provision that the parties must attend for mediation. In other jurisdictions where it’s not mandatory, the parties can still choose to go to mediation and we say that’s quite a good choice when you had the right case to do that. And as part and parcel of that preparation for getting ready for the mediation, you want to get the best understanding of your case possible. So you want to have done all your homework. You want to get all the medical records in support of a Will challenge, for instance. You want to speak to all the witnesses that are going to make or break your case. You’re going to want to speak to the professionals who were involved and maybe interview the lawyers or the accountants or the investment planners, whoever it is that’s crucial to your case. You want to make sure that you’ve got as much of your evidence and the facts supporting your case as possible, before you get to a mediation.
Ian Hull: And you use that…I love that word, crucial to your case. Because too often people think that, you know, we’ve got to find out everything before we go to mediation. And that’s not our experience. Our experience is that we try to get out there and find that core evidence. Like, for example, what’s the lawyer gonna say? Or what’s the doctor gonna say? Bring that to the mediation so that’s not a guess. I don’t mind guessing at what the next-door neighbor is gonna say or Aunt Molly used to call me or whatever. But what you don’t want to guess on is the core, crucial evidence. And that ties into the next part and sort of the legal concept is getting the ducks in order. And that is, everyone go with a financial interest. You mentioned that at our last podcast and you talk about it because in our Order for Directions we have started the lawsuit by chasing down everyone with a financial interest, chasing down anyone named in prior Wills, making sure they’re all on notice, making sure those on an intestacy are on notice. So that we can say to the mediator, you know what, we’ve invited everyone and if they didn’t choose to come, that’s okay, we’re gonna still press on.
Suzana Popovic-Montag: And sometimes that’s actually a hard thing for clients to understand the importance of that, because they just see it as more money being wasted because you’re bringing more and more people to the table. But the truth is, it only takes one person to scuttle a deal at the end of the day. So one person can stand up and say well, you guys settled an Estate but I wasn’t there and I have an interest, or I have a claim against the Estate, I should have been there. And then that whole settlement can go by the wayside and all the time, the energy, you know, the resources expended in getting to that stage are going to be totally wasted.
Ian Hull: And the classic example of that is when people don’t invite, for example, if there’s a situation where minor children have an interest in the Will and they don’t tell the office of the Children’s Lawyer, the children’s advocate, the government agency here in Ontario. They don’t tell them and you have a mediation and you get a deal and you put it to them and they say well, you know what, if we were there we would have said this and this and we’re not gonna take that deal. You can have just scuttled all of your efforts in it. Now the other part of that is, so let’s presume we’ve done our good work and we told everyone that needs to be there and we put them on notice and those people are told about it. One of the other choices that we find is often that we push back a little bit if we know that someone isn’t gonna show up. For example, if one of the parties says I’m only sending my lawyer, I’m not coming myself. Or one of the sisters says I’m not coming, but we know that sister is actually a crucial element. Maybe not legally but maybe one of the people who can tie this thing together. Maybe she’s the one who’s in the middle and helps hold this thing together from outside in, those kinds of things. And often what we’ll do is before a mediation we’ll find out, test the waters, who’s coming, who’s not coming. Are you bringing your wife? Are you bringing your husband? Is that gonna upset people? Who’s at the table? And sometimes I’ll go as far as to say, draw a little map of a table and say okay, who’s going to be sitting there? And let’s talk it through at our pre-meeting that you talked about. Let’s talk about who’s gonna be there, who isn’t gonna be there and if they should be there.
Suzana Popovic-Montag: Right.
Ian Hull: Alright, so we’ve done the legal angle on it, who’s gonna be there. We’ve done the practical side of who should be there. And now we’ve got everyone at the table. So we’re sitting at the table and the mediator is at the end of the table, the hourly clock is on and away we go. We talked about the open session. Now the open session is dealt with in different ways. And let’s talk a little bit about the open session.
Suzana Popovic-Montag: Well the open session really…the purpose of it, as I see it to be anyway, is that you’ve got the mediator who’s going to introduce his or her understanding of the case. And it’s an opportunity to make sure that the mediator understands the nature of the case, understands what the parties’ respective positions are, and understands the crucial facts. I don’t necessarily think that the mediator is expected to know every single fact because the truth is, at the end of the day, it doesn’t matter. But even stepping back from that, it’s just not possible.
Ian Hull: Not realistic.
Suzana Popovic-Montag: And, you know, same with a trial. Mind you, at the end of the day, a judge doesn’t necessarily know every other fact either, but that’s a different…whole different ball game.
Ian Hull: Yeah but you raise a good point, and that point there is that we, you know, sort of laugh sometimes. But I mean judges make decisions on a very small part of the case. No matter what people say, they only know a small part of the case. They’ve only heard a little bit. Same problem with the mediator. So to the extent that we’re advocating, we don’t want to dump tons of information at that mediator. The mediators are only so smart and have only so much retention. And so we’ve got that one day and we want again…we talk about the crucial witnesses. I don’t want to fill that mediator’s head with what Aunt Betty is gonna say.
Suzana Popovic-Montag: Right.
Ian Hull: If Aunt Betty doesn’t mean anything to this case but it sort of grinds at the other side, I don’t want to waste people’s time. I want them to know what Dr. No says.
Suzana Popovic-Montag: And the key thing that I think in terms of preparation, Ian, that we didn’t mention is how important a good mediation brief is. And I think you’re getting at it by highlighting the kinds of evidence that is really going to get a mediator excited. And that’s the kind of stuff that we want to make sure that we’ve put into our briefs for our client’s benefit.
Ian Hull: Absolutely. And we don’t…you know, again let’s put on our hat as mediators. And we find that if we get sent stacks and stacks of materials, we’ll read them, first of all it’s at the expense of the people sending them. But more importantly, the expense aside, is that again, what are we going to retain? We want to retain the crucial elements of it and to the extent that we can be sent to that direction or that when I mediate, I point the mediator to that direction as fast as I can. Even if the materials don’t jump out and I can tell because the mediator either has just not got my pitch at that open session, I’ll say I look forward to chatting with you in caucus, not in front of everyone else because it will just stir the pot. I want to chat with you in caucus and tell you a little bit of some of the highlights. But, you know, let’s get on with the show.
Suzana Popovic-Montag: And I mean the truth is that first session probably has to be managed very carefully by a good mediator because you don’t want to inflame the situation anymore than you already probably have with mediation briefs that could be a little bit more inflammatory than otherwise. Just because that really is the first moment when the client really feels that they’ve had their say, you know, apart from the Affidavits that they’ve prepared in advance. This is their moment to sort of put a culmination of their case before someone and to get their best foot forward from their perspective. So to be able to sort of step out of that and have a mediator say okay, I understand your positions. In caucus you can really explore that in much more detail, give you that opportunity to have your say. But for the purposes of the opening session, let’s just take it and rise above it.
Ian Hull: And you know it’s interesting you say that because I was at a mediation with one of our junior lawyers and a great mediator. We settled the case but at the end the mediator looked at us and said you know what was wonderful about this whole mediation was neither lawyer inflamed with their brief. And they said that really was a big leg up to getting the process of healing going.
Suzana Popovic-Montag: I think so, that’s so true because it’s such an emotional…
Ian Hull: It’s an emotional day.
Suzana Popovic-Montag: Emotional kind of day.
Ian Hull: Absolutely…sorry to interrupt you on the emotion. We got double emotion there. Alright, so listen, thank you so much for joining us today. It’s been a lot of fun having you back. Welcome.
Suzana Popovic-Montag: Thank you Ian. Thank you.
Ian Hull: We’ve got ahead… a busy, busy time coming up ahead so we’ll have some more interesting reports of what’s happening on the field and we’ve got some more discussion maybe we can work through. We’re gonna talk about maybe a bit about the choice of mediator in our next one and then work through a bit more of the mediation day.
Suzana Popovic-Montag: Great.
Ian Hull: Where we’re getting a perspective of the mediation day.
Suzana Popovic-Montag: Super. Thank you very much, Ian.
Ian Hull: Thanks Suzana.
Suzana Popovic-Montag: Thanks.