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Estates & Wills & Trusts

Estate Mediation part 2: what to expect

In Part 2 of our series on estate mediation, Toronto trust and estate litigator Felice Kirsh discusses what’s involved once the process gets underway.

Realistic expectations and a willingness to settle are the keys to a successful mediation, Toronto trust and estate litigator Felice Kirsh tells AdvocateDaily.com.

Kirsh, a partner with Schnurr Kirsh Oelbaum Tator LLP, says lawyers have a role to play in setting the stage for their clients once they decide to enter the mediation process.

“You should definitely spend time preparing your client,” she says. “Mediation is a compromise, and if you can’t do that, then there will be no resolution. Clients must understand that somewhere between their worst case and their best case is going to be the outcome of mediation.”

Kirsh says parties can have some control over the timeline, but court orders authorizing mediation will often specify a time limit for its completion, such as 120 days. And often, the mediation itself is scheduled for just one day, although a second day may sometimes be necessary.

After choosing a mediator, both sides prepare and present them with mediation briefs, which set out the facts of the case, the issues between the parties, and any settlement offers. More importantly, they set the tone for the rest of the proceedings, says Kirsh, who likes to make hers as clear and concise as possible.

“Sometimes clients want you to put things in the mediation brief that you don’t think are relevant or that will not move the case forward,” she says. “A roadblock that often comes up is when clients want to have inflammatory language in there. In my view that’s counter-productive, but every lawyer has their own feelings on what should and should not be in the brief.”

The mediation begins with everyone together in one room for a plenary session, where the mediator lays out his or her expectations. Following that, the mediator usually meets separately with each party to work towards a solution.

“The mediator goes back and forth trying, first of all, to gain the trust of the clients on both sides and then ask for settlement offers,” says Kirsh.

When in each room, the mediator may point out what he or she believes to be the strong and the weak points of each case.

“And ultimately, the parties will come up with a settlement which will be put in writing in a document called the minutes of settlement, which the parties will sign at the mediation,” Kirsh says.

In Part 3 of the estate mediation series, Kirsh will discuss the resolution and what it means for the parties.

To read part 1, click here. 

To Read More Felice Kirsh Posts Click Here
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