Tag: alternative dispute resolution
In the estates regime, mediations occur regularly, particularly in Toronto, where mediations are a mandatory part of the litigation, in accordance with Rule 75.1.02(1)(a)(i) of the Rules of Civil Procedure.
A mediation is always an opportunity to attempt to settle a matter without resorting to costly and time consuming litigation. At mediation, the parties will each stay in separate rooms and the mediator (that is usually chosen by the parties to the litigation), will shuttle between the rooms seeking a more in-depth understanding of the parties’ positions as well as probing opportunities for settlement. Sometimes, before the mediation begins, the mediator will do an introduction to all the parties before they break off into separate rooms, explaining how the day will go.
An important aspect of mediation is the fact that a mediator has no decision-making power. He or she cannot force the parties to settle but can provide his or her opinion on the issues. As such, settlement at mediation can only be reached upon the agreement of the parties themselves.
Another means of dispute resolution (other than litigation) that is not often resorted to in estate litigation, is arbitration. Before agreeing to attend an arbitration, however, it is important to consider whether this form of dispute resolution would be helpful in the particular circumstances of the matter.
Arbitration, unlike mediation, is an adversarial dispute resolution process (similar to litigation) determined and controlled by a neutral third party. The arbitrator can make a final decision, called an “award”, contrary to a mediator, who cannot. The most significant aspect of arbitration, however, is that the courts generally do not interfere in a dispute that is subject to an arbitration agreement. As such, there is a risk that should a decision be made by an arbitrator, the court would then refuse to hear the matter further, leaving arbitration as the ultimate medium of resolving the particular matter.
Why is that so important?
In a situation where the parties have already engaged in settlement negotiations and there appears to be a gap between their respective positions, an arbitration may be worthwhile to pursue, particularly should litigation be untenable to the parties given the cost involved and/or if the matter in dispute does not involve a lot of money. In such a situation, a final arbitral award may bring finality and allow the parties to move on, particularly if the gap between the parties’ positions is not significant.
If, however, the parties had not yet engaged in negotiations and no offers to settle were made, pursuing arbitration may be a serious gamble. That is so because the issues to be arbitrated are set out by the parties and though the arbitration process is similar to traditional litigation, the arbitrator will not have an opportunity to hear all the relevant evidence. As a result, agreeing to arbitrate in a situation like that may cause prejudice to a client who may then not be able to appeal the “award” made by an arbitrator, outside of the regime put in place by the Arbitration Act, 1991, SO 1991, c 17.
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Estate litigation often involves not only financial, but emotional issues. Among the most common disagreements are those between family members, whether amongst siblings, or between siblings and a surviving spouse. In some cases, the parties cannot get along and they may require that the Court determine the matter in dispute. However, there are also situations where the disagreement can be worked out between the two sides, such as through an Alternative Dispute Resolution (“ADR”) process like mediation, without the extra time and expense that comes with a Court proceeding.
Another form of ADR used primarily in the family law context is Collaborative Family Law (“CFL”). CFL is structured in a series of four-way meetings between the parties and their lawyers. There is no mediator, arbitrator, or judge present, so CFL requires a high level of trust between the lawyers and clients. Candidates for this collaborative approach to dispute resolution are often parties who still get along reasonably well, and who are willing to cooperate with one another.
Based on the frequently emotional and familial aspects of estate litigation, it seems that CFL, or a form of CFL, could be applicable in the estates context. Back in 2010, as noted by this prior blog post, there seemed to be some interest in applying the CFL model to estate Law. This article in Canadian Lawyer from later that same year discussed why collaborative estate law didn’t seem to be catching on.
One of the key features of CFL that seems to make it unattractive in estate law is that, if after the series of four-way meetings, the parties cannot agree between themselves, they must start from scratch. The lawyers who participated in CFL cannot continue to represent the same client in court proceedings. All information produced in the CFL process has to be reproduced, including financial statements, expert reports, appraisals, etc. Although the best case scenario in CFL involves saving money as well as preserving relationships, the worst case scenario could possibly involve additional expenses and harm to relationships in any event.
However, perhaps the clause that restricts a lawyer from staying on the file after unsuccessful meetings could be removed, or at least modified. One possibility considered is to disqualify only the individual lawyer who worked on the file, and not the entire firm. This may make it more accessible to parties who would otherwise be good candidates for resolving their problem in a collaborative way, as opposed to an adversarial one.
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