Today’s blog is authored by Chigozie Enwereuzo, LPP student-at-law with Hull & Hull LLP.

Mediation is an alternative to litigation in resolving estate disputes. It was introduced in Ontario on September 1, 1999, as a mandatory process in certain jurisdictions (including Toronto) via Rule 75.1.02 of the Rules of Civil Procedure to help litigants to settle estate disputes.  

Benefits of mediation include voluntary participation, informality, flexibility, speed, lower cost, choice of mediator, privacy, broad scope of remedies and solutions, and an opportunity for each party to the dispute to speak directly to the others. The mediator does not render any decision but rather assists the parties in considering the strengths and weaknesses of each party’s case and works with them to discover mutually acceptable solutions. It can also be held before or after litigation have begun.

Despite all these benefits, practitioners note a general resistance or reluctance on the part of litigants to engage in mediation. Why is that?

A number of factors contribute to this reluctance to engage in mediation, some of which include:

• a significant lack of understanding of mediation and its benefits. As prevalent as mediation is, some still do not fully understand the process. Parties may also be confused regarding the different forms of mediation applied in disputes;
• concerns harboured by opposing disputants regarding the mediator proposed by a party.  Opposing counsel or their clients may not be comfortable with the style or reputation of a proposed mediator. 
• unfounded fears, part of which stems from mediation requiring a paradigm shift from positional bargaining to joint problem solving;
• cost concerns due to disparity in the economic resources of the disputing parties; and
• the false notion that proposing mediation may be perceived as a weakness during a dispute.

As indicated by recent studies, about 49% of Canadians will experience at least one legal problem in any given three-year period. Most will not have the resources to solve them. Left unresolved, one legal problem often leads to other legal, health and social problems as legal problems are hardly isolated. Unresolved legal problems not only adversely affect people’s lives, but also are a heavy drain on the public purse.

So, beyond the codification of mediation as a mandatory process, practitioners need to actively promote the process by demonstrating to clients its importance in offering more expeditious and economical ways to resolving disputes. Not only are the parties’ need for confidentiality and privacy assured, but mediation also provides them with an unparalleled opportunity to craft a unique agreement that — with the help of the mediator and legal counsel — addresses their particular concerns.

Thank you for reading,

Chigozie Enwereuzo, student-at-law