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Estates & Wills & Trusts

Estate Mediation part 1: The benefits

In Part 1 of our series on estate mediation, Toronto trust and estate litigator Felice Kirsh explores the benefits of mediation in estates disputes.

Estates disputes are inevitably emotional, starting as they so often do with the death of a loved one, says Toronto trust and estate litigator Felice Kirsh.

Many understandably have little relish for the adversarial litigation process at such a vulnerable time, and the mediation process can be an excellent alternative, says Kirsh, a partner with Schnurr Kirsh Oelbaum Tator LLP.

Mediation, a process used to settle disputes, is mandatory in Toronto and Ottawa under the rules of civil procedure.

“Even if it’s not mandatory, all reasonable lawyers would advise their client to attend mediation,” says Kirsh, a Certified Specialist in the area of estates and trusts law.

She says the main selling point of mediation for many parties is the privacy offered by the process.  

"It can all be done out of the public gaze, and you don't have to go over your family secrets in a courtroom where the case can be reported," she tells AdvocateDaily.com.

"Court is always much more expensive too," she adds.

In addition, the all-or-nothing approach inherent in litigation is risky for litigants.  

"The court is there to decide legal issues, so you end up with winners and losers," Kirsh says. "With mediation, you can arrive at your own resolution through compromise between the parties."  

An overwhelming portion of civil litigation cases settle through mediation, negotiation, pre-trial or just before trial, she adds.

When considering mediation, the role of the lawyer, says Kirsh, is to prepare the client for the eventualities. They need to know what the role of the mediator is, that the process is based on compromise and that their goals should be reasonable.

But the timing is crucial.

“We don’t go into mediation as soon as clients walk in the door,” Kirsh explains. "Often court proceedings are commenced so the legal issues can be framed."

Documentary disclosure must also occur to ensure everyone has all the information that is required to create a fruitful mediation, she adds.

How long that takes depends on the magnitude of the documents being sought. Kirsh says it could happen quickly, but in other circumstances disclosure could take a significant period of time.

“At some point, and the point differs in each case, the lawyers and the clients feel they have enough to make an informed decision and then they go to mediation,” says Kirsh. “I think the important thing is to go to mediation at the appropriate time.”

The parties, through counsel, usually agree on a mediator to help them resolve the conflict. The role of the mediator is not to impose a resolution but rather to help the parties come to a resolution in a constructive way.

Kirsh says that means there’s some give and take by each side and that both have reasonable objectives. 

In Part 2 of the estate mediation series, Kirsh will discuss specifics on what’s involved in the mediation process, including keys for success and typical roadblocks.

To Read More Felice Kirsh Posts Click Here
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