To Litigate or To Mediate?
The loss of a loved one coupled with an actual or perceived impropriety in the handling of his/her estate often results in contentious estate litigation. And, while litigation may ultimately resolve the dispute, it is not always the best means of dealing with such emotionally charged disagreements.
Mediation is a highly effective alternative to litigation. In fact, Rule 75.1 of the Rules of Civil Procedure requires that parties to any estate dispute commenced in Toronto, Ottawa and Windsor, submit to mandatory mediation prior to attending court for a trial on the matter.
There are many benefits of such mediation at the early stages of litigation:
Mediation is faster and far cheaper than going to trial: Litigating an estate dispute to trial can be an expensive undertaking. If a dispute can be settled early through mediation the overall costs can be significantly reduced.
Mediation is confidential: Court is a public forum and sealing orders are rarely granted for estate litigation matters. Mediation occurs outside the court and can keep family matters private. Further, all discussions at mediation are “without prejudice”, therefore, if no agreement is reached those mediation discussions cannot be used in litigation proceedings by any party without the permission of the others.
There is greater control over the process with mediation: Unlike at trial where you are assigned a judge, you can choose a mediator with skills and experience directly relevant to your estate dispute. You can also guide the discussions that take place at mediation to ensure your concerns are being addressed.
Mediation is less intimidating: Rather than an adversarial court setting, mediation takes place at a neutral location; it is informal and is designed to promote open communication and understanding. The mediator will not judge the merits of each party’s interests, nor render any decision. Rather, he/she will assist the parties in considering the strengths and weaknesses of their respective cases and work with them to discover a mutually acceptable outcome.
Mediation has higher rates of compliance: Mediation is a collaborative process. Unlike court proceedings, there is no clear winner or loser. If the parties are able to negotiate a resolution of the dispute, a written mediation settlement agreement is signed by all the parties, at which point the agreement will become an enforceable contract. As every party is actively involved in the process, each is more likely to take ownership in the outcome and abide by the ultimate agreement.
There is a broader scope of remedies available with mediation: At mediation, unlike at court, remedies can be tailored to each party’s needs. Options can be presented back and forth until each party is satisfied with the terms of the agreement.
The Attorney General’s office has put together a fact sheet, which provides some additional information on mediation practice and procedure, which can be accessed here.
Given the many benefits mediation has to offer it is certainly worth considering as an alternative to litigation in the early stages of your estate dispute.
Thank you for reading,