So what exactly are we mediating here?
Last year, I blogged about the mandatory mediation of estates, trusts, and substitute decisions matters which are commenced in Toronto, Ottawa, or the County of Essex as prescribed by Rule 75.1 the Rules of Civil Procedure. What I did not touch on however, was the process by which the parties and the Court determine how the mediation is actually conducted.
Rule 75.1.05 provides that, except for a contested passing of accounts, the applicant shall make a motion in the same way as under r. 75.06 (application or motion for directions) seeking directions for the conduct of the mediation. As for the timing of this motion, subrule 75.1.05(2) provides that the “notice of motion [for mediation] shall be served within 30 days after the last day for serving a notice of appearance.”
On the hearing of this motion the Court may direct the following:
- the issues to be mediated;
- who has carriage of the mediation and who shall respond;
- within what times the mediation session shall take place;
- which parties are required to attend the mediation session in person, and how they are to be served;
- whether notice is to be given to parties submitting their rights to the court under rule 75.07.1;
- how the cost of the mediation is to be apportioned among the designated parties; and
- any other matter that may be desirable to facilitate the mediation.
Having participating in mediations as both counsel and mediator (as part of Hull Estate Mediation), I have seen first-hand how useful the process can be to resolve difficult and often emotionally-charged disputes. The process itself, however, can be very difficult for both lawyers and clients. It is important for lawyers to properly prepare themselves and their clients for the process. For more information on how to do so, please refer to my blog mentioned above.