When preparing for an estate mediation, there are a number of issues both counsel and clients should be mindful of, says Toronto estates and trusts lawyer Suzana Popovic-Montag.

She tells AdvocateDaily.com the approach that a mediator will most likely be taking is something you should have a general understanding about beforehand.

“Often, depending on who is the mediator and what the issues are and what order they will be dealt with, knowing their likely approach can be a crucial aspect of the mediation itself. For example, when selecting a mediator, one might consider whether you wish to select a specialist, a generalist or a former judge,” says Popovic-Montag, managing partner with Hull & Hull LLP.

A specialist — an experienced lawyer practising in the area of estate litigation or who has a great deal of background in this area of the law — can provide specific knowledge and may be helpful in the right circumstances, she says.

“For example, if your case involves the issue of testamentary capacity, it may be helpful to have a specialist who understands the basic framework of the tests that a judge should consider to ascertain whether or not the deceased had testamentary capacity,” Popovic-Montag says. “A specialist may be useful when considering issues surrounding very narrow points of law, such as the proof of a lost will and the presumptions that surround that legal question.”

A generalist — a mediator with basic background and knowledge of various areas of law — can be equally useful in the right circumstances. She says if a matter is truly a family dispute, the legal issues themselves may not be the most important aspect of the litigation.

“A generalist mediator may be able to impress upon the parties his or her general background knowledge and induce them to use common sense and dignity to bring together a resolution,” she says.

Various ADR facilities, which include retired judges, are excellent sources for mediation. Popovic-Montag says retired judges are particularly well qualified to obtain a settlement as a result of their judicial experience.

“Mediation is most often structured like a pre-trial and, eventually, the mediator will give his or her opinion as to the outcome of the litigation,” she says. “A retired judge can often be very effective in impressing upon the parties his or her experience with regard to the likelihood of success or failure of a case.”

No matter which type of mediator is selected, prior to mediation a lawyer should ascertain from their client — and determine through the other party’s conduct — what the real purpose of the mediation is.

“Is mediation something that the parties are prepared to seriously pursue and is there truly going to be a serious attempt to settle the case or do the parties want to use this step in the proceedings to make further inquiry into the nature of their opponent’s case?” Popovic-Montag says.

“At trial, cross-examination of a witness can provide you with the necessary evidence to succeed or fail in your case. At mediation, you may not be able to assess what the litigation dynamics are or the strengths or weaknesses of your opponent’s witnesses,” she adds.

It is also important to know and understand your own style and techniques as well as that of your opponent. Determine whether or not you can be flexible and carefully consider your techniques and negotiation tactics before you enter into the mediation.

Popovic-Montag says a full and comprehensive mediation brief should be prepared and sent to opposing counsel and the mediator in advance. At most private mediation centres, the mediator will expect a copy of the brief well in advance of the date of the hearing and the materials should be similar to that of a pre-trial memorandum.

“I often use an opening statement which sets out the theory of the case in strong and precise language and in some detail and usually include a chronology of events as a schedule to the mediation brief itself,” she says. “In the mediation brief, I include copies of all of the relevant documents. Often, in estate litigation matters, the wills in question are included and particular excerpts from relevant doctors’ and solicitors’ notes are set out.”

When preparing your client for the mediation, she says you must familiarize and review with them the process that they are entering into.

“Clients are not always practised negotiators and can sometimes get caught up on a low-ball or high-ball offer or other unrealistic approaches to the mediation,” Popovic-Montag says.

Preparing a comprehensive mediation brief will maximize your presentation at the mediation, she adds.

“Mediation is much like courtroom advocacy and if you are weak on the facts then you may wish to emphasize the law. If you are weak on the law you may wish to emphasize the facts,” she says.

Be aware of counsel who impose a rigid approach to the negotiations as some will assess the economic value of the case and then will not budge from his or her position.

“In contrast, some counsel want to ‘horse trade’ and the negotiations tend to be based on a range of numbers rather than a specific value, she says.

Popovic-Montag says counsel should carefully review with their client the time that should be involved in the mediation itself.

“I find that a whole day is usually required for most meaningful mediation sessions. Sometimes, even more than one day is necessary, depending on the issues involved,” she says. “However, one must be aware of the physical limits on counsel, clients, and the mediator. While it is often helpful to burn the midnight oil to get a deal, it may not be appropriate in every situation.”

That said, sometimes letting the parties consider their case overnight can be fatal.

If there is a settlement, some form of minutes of settlement should be signed at the end of the mediation to ensure that the deal is properly and formally documented and the clients should not leave before they have signed. If necessary, a cooling off period of 24 to 48 hours may be considered.

“In estate litigation matters, you may not want to proceed to mediation too quickly,” Popovic-Montag notes. “It may be necessary for the parties to have enough time to heal the wound or grieve the death before entering into serious negotiations.”