Estate Mediation part 3: the settlement
By AdvocateDaily.com Staff
In Part 3 of the estate mediation series, Toronto trust and estate litigator Felice Kirsh discusses settlement at mediation.
With proper planning and preparation, mediation can be an effective way to achieve a settlement in estate law matters – often within a day, Toronto trust and estate litigator Felice Kirsh tells AdvocateDaily.com.
But the key to ensuring an effective mediation is to set reasonable expectations with the client through preparation, adds Kirsh, a partner with Schnurr Kirsh Oelbaum Tator LLP.
“You need to have the trust of your client,” she says, adding that readying them to make some concessions, if necessary, is another important element toward reaching a settlement.
Kirsh says she works with her clients to identify the positive and negative aspects of their cases so they have a solid grasp of what they can expect, including the realistic settlement range.
She notes that disappointment could occur in mediation if the parties don't fully understand that compromise is required to achieve a settlement.
As an example, Kirsh points to a hypothetical situation: an estate worth $1-million that is left to three of the deceased's four children, but under a prior will it was divided among the four children equally.
“If I’m representing the adult child who got nothing, I know that my best case is $250,000 and my worst is zero," she says. "So, my resolution has to be somewhere between zero and $250,000 and the range will be based on the merits of the case.”
Kirsh advises that it's critical to have clear and reasonable expectations when the parties are negotiating at mediation. "All cases have strengths and weaknesses." she says, adding, no case is a sure winner.
“Sometimes at mediation, you get an exchange of reasonable offers very quickly, and sometimes you don’t,” says Kirsh. “Sometimes you can trade things that don’t mean that much to your client, while the other side is also happy to give away something.”
When settlement is achieved, the minutes are usually drafted immediately, laying out the terms and relevant details, she says, so that when the parties leave mediation, they know the deal is done, and the settlement terms.
Once agreed upon, everyone signs the minutes of settlement, which becomes the contract, and the court proceedings are then dismissed.