Discuss settlement range with client prior to mediation
By AdvocateDaily.com Staff
Counsel must prepare their clients for mediation to get the most out of the process, says Toronto trust and estate litigator and mediator Felice Kirsh.
“You can’t just show up on the day and expect your client to figure out what mediation is all about,’” says Kirsh, a partner with Schnurr Kirsh Oelbaum Tator LLP. “It’s part of the lawyer’s job to tell their client what to expect ahead of time, just like you would if you were going into a trial.
“When I’m acting as mediator, I’m quite surprised by how often clients come in unprepared to settle — they seem shocked by what the process is all about,” she tells AdvocateDaily.com.
Mediation is mandatory in estate list actions launched in Toronto, Ottawa and the County of Essex under the province’s Rules of Civil Procedure. Kirsh says the required nature of the process means some parties may view it as more of a hurdle to be cleared to get their case set down for trial, as opposed to an opportunity for settlement.
However, when she’s acting as counsel to a party in mediation, Kirsh ensures her clients take the process seriously by introducing them to its concepts and talking them through the potential benefits of arriving at an earlier resolution.
“Mediation is all about compromise, so you should talk with your client about a settlement range beforehand, where their evidence is weak and strong, and why reaching a resolution can be a good thing, both in terms of reduced legal fees and risk-mitigation,” she says.
“If there’s a settlement, it’s going to land somewhere between their worst-case and their best-case scenario,” Kirsh adds, noting that the typically all-or-nothing nature of estate disputes should motivate parties to craft a settlement that will satisfy all sides.
Kirsh says making disputants aware of some of the more mundane details such as the layout of the room and the timetable for the day can help put them in the right frame of mind for a session.
Mediations typically take place in a larger boardroom where opening remarks are often made in a plenary session, with rooms branching off, in which the mediator engages in caucusing with individual parties separately, she explains.
“People think they know what mediation means, but they don’t know about it in the context of a legal claim,” Kirsh says. “Parties should get set for what could be a very long day, and they should be warned not to read anything into the length of time the mediator spends in one room compared with another.”
This is part four of a five-part series on mediation in estates disputes. Stay tuned for part five, where Kirsh explores the unique challenges of estates disputes.
To read part one, using mediation to mitigate risk, click here.
To read part two, determining if a dispute is suited for mediation, click here.
To read part three, selecting a suitable mediator, click here.