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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I recently came across an article in the American Bar Association’s ABA Journal that contains some surprising results from a Reader’s Digest poll. The magazine polled over a thousand Americans to determine the top one hundred most trusted people in the United States. As a lawyer, the most startling results for me were those for judges. According to the poll, the most trusted judge in America is Judith Sheindlin, the eponymous host of television’s Judge Judy. Several places below her on the list was Justice Ruth Bader Ginsburg, followed by Chief Justice John G. Roberts and Justice Anthony M. Kennedy.
After reading this, I decided to do a little more research (on Wikipedia) on television’s most recognizable judge. Before being on TV, Judge Judy worked as a lawyer in the New York family courts before being appointed to the bench. After being featured on an episode of 60 Minutes, she was contacted about starring in her own reality courtroom series. The show, which began in 1996, has been an incredible success and has made Sheindlin an extremely wealthy woman. It has been reported that she is the highest paid personality on television, making approximately $45 million annually for 52 days of taping per year.
As I suspected, in her televised role, Judge Judy is not really a judge at all – she is actually acting as a private arbitrator, adjudicating small-claims disputes within a simulated courtroom setting. All parties appearing on the show sign contracts agreeing to have their matter arbitrated by Sheindlin. Although not done on a courtroom set, I occasionally arbitrate estate and trust disputes as part of our Hull Estate Mediation practice.
Anyone who knows me in a professional capacity knows that I am a big proponent of alternative dispute resolution mechanisms such as mediation, arbitration and the emerging practice of “med-arb” whereby an unsuccessful mediation automatically transitions into arbitration. Alternative dispute resolution can allow for settlements to be reached more expediently, more efficiently and more privately than through the traditional court process. When faced with the reality of litigation, methods of alternative dispute resolution can serve to ease the pain of what can be an extremely expensive and emotional process for clients.
While I do appear in a “television” series, it is unfortunately nothing like Judge Judy. Despite this, I am happy to now know that Sheindlin and I both promote alternative dispute resolution in our own very different ways.
Thanks for reading and have a good week.
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.
Mediation is a large part of an estates practice, particularly in Toronto where it is mandatory. It is a critical process that often leads to faster and more cost-effective resolutions than trial litigation. Finding the right mediator, who is also available to mediate when you need it to happen, is not always easy. Different cases call for different types of mediators.
The particular dynamic of a dispute may, on occasion, make it advisable for counsel to seek a sitting judge as a mediator. This approach is somewhat unconventional as it is almost always the case that lawyers, certified mediators or retired judges are selected to mediate a case.
In an interesting article by The Honourable Warren K. Winkler in the Winter 2010 issue of The Advocates’ Journal , His Honour touches on the movement towards mediation in the civil justice system over the years, the arguments for and against judicial mediation, and the difficulty of judicial mediation being both a reality and fantasy in Ontario (this is a good read). On this last point, His Honour notes the fact that while judicial mediation exists, its availability is complicated by several things, including lack of court facilities to hold mediations, difficulties with timetabling and, most importantly, judges who do not want to work in the “too unfamiliar and informal” mediation environment.
Winkler J.’s view is that judicial mediation should be expanded to meet the pressing demand within the civil justice system, and the court system ought to adapt to allow it. I, for one, would be very pleased to see this happen.
Have a good day,
Natalia R. Angelini – Click here for more information on Natalia Angelini.
The Globe and Mail recently featured a new book, Bargaining with the Devil: When to Negotiate, When to Fight, by Robert Mnookin. In reading the article, I was impressed with how relevant the discussion was to estates matters.
In the article, Mnookin says that some of the most difficult conflicts to negotiate are those where the adversary is seen as being untrustworthy – an adversary "who’s either harmed you in the past or is out to harm you in the future and whom you may even think is evil." Matters in the estates context often pose these types of challenges. Disputes amongst family members often arise out of a lack of trust, and in many cases, the other family member is labelled as "evil".
Further, in the estates context, emotions often run high. This, says Mnookin, is usually an impediment to a negotiated settlement. "Strong emotions can get in the way of clear thinking."
Mnookin also points to another impediment to negotiated resolutions that we see in many estates matters. In many cases, parties to a negotiation are wary of settlement because it is believed that what is good for their adversary is bad for them. Mnookin refers to this as "zero-sum thinking".
Taken a step further, even if a settlement is good for a party, it is often not acceptable to that party because the party does not want to let the other side off easily: the party wants to punish the adversary for what they have done, or for what it is believed that they did.
Mnookin concludes by noting that in many cases, emotion wants to fight, even though this may not be in your best long-term interests. However, there are other cases where the fight really is the better alternative.
Thank you for reading.
Paul E. Trudelle – Click here for more information on Paul Trudelle.
Listen to Managing Estate Issues
This week on Hull on Estates, Ian Hull and Suzana Popovic-Montag talk about how to manage an estate dispute as opposed to preventing it. They use an example of a joint account shared between ‘Mom’ and ‘daughter’ to examine the best way to approach posthumous problems and misunderstandings.
Feel free to send us an email at email@example.com or leave us a comment on the Hull on Estates blog.
Mediation continues to be all the rage in Estate litigation in Toronto matters, and is increasingly common outside Toronto as well. (For background on Mediation in general, see here.)
Mediation no doubt sounds very conciliatory and cooperative, and in an ideal world it might be. However, estate litigation and the ideal world are not a commonly-encountered pair. In the real world, mediation can be extremely stressful. It is not uncommon for mediations to drag on into the wee hours as the increasingly tired lawyers and parties draft away at minutes of settlement, always with the possibility that the deal may fall apart at anytime.
Some lawyers have begun to have lengthy pre-mediation meetings with clients to prepare them for mediation ahead of time so they are not taken by surprise by the stress and late nights that may occur. Even more intriguing is the possibility of mediating an estate matter before death – see our own website and a similar website in California.
However, no matter how stressful and difficult a mediation can be, it is still a far cry from the stress and ups and downs of trial – no doubt a main reason so many mediations result in settlement.
Thanks for reading.
Mediation is a common occurrence in estate litigation. Mediation is also popular in other areas, including family law and even commercial litigation. When choosing a mediator, I look for the following characteristics:
- Knowledgeable (has to know the law)
- Experienced at mediating (too many “wannabes”)
- Litigation savvy (knows the true costs and challenges of litigation)
- Empathetic (a good, sympathetic listener is a must)
- Diligent (a mediator has to know the issues and subtleties)
- Firm (a mediator has to know when to read the “riot act”)
- Stamina (mediation is often a marathon)
- Adaptable (a mediator wears many hats)
If the other side suggests a mediator you’ve never heard of, ask around. What do your colleagues think and what is the mediator’s reputation like? To be honest, I’m never too quick to agree to a mediator suggested by opposing counsel if I don’t really know their style and reputation. Opposing counsel may have a comfort level with the mediator or know something you don’t that could work against your client.
By keeping the above characteristics in mind and doing your homework, you and your client will likely have a better chance of satisfactorily settling the dispute.
Thanks for reading, Justin