Redress Risk Management (post until May 31/19)
Estates & Wills & Trusts

Estate mediation can mitigate risk, save time and money

The winner-takes-all nature of estate litigation makes mediation an attractive alternative, Toronto trust and estate litigator and mediator Felice Kirsh tells AdvocateDaily.com.

In addition to the cost and time savings traditionally associated with mediation, Kirsh, partner with Schnurr Kirsh Oelbaum Tator LLP, says parties to estates disputes are particularly drawn to the option for risk mitigation.

“Settlement tends to be in the best interest of clients in the kinds of cases I work on because, in will challenges, it’s all or nothing. The will is either valid, or it’s not, so there is a serious risk for both sides,” explains Kirsh, who has experience in the process both as counsel and as the mediator.

“Resolving matters by way of a settlement allows you to craft your own resolution, and land somewhere in between your best- and worst-case scenario,” she adds.

Settling a dispute in a way that leaves both sides satisfied can also be beneficial for family members who want, or simply cannot avoid, an ongoing relationship with the opposing parties.

“It may not happen for a few months or years down the road, but there’s more of a chance of reconnection following mediation than after litigation, where one side has been declared the winner and the other the loser,” Kirsh says.    

Another significant attraction to mediation for parties to estate disputes includes the privacy of the process, says Kirsh, who notes that few people like to have their dirty laundry aired in public.  

“When you proceed to court, it’s public, so anyone can come in to watch a hearing, read the records that have been filed and study any decisions rendered by a judge,” she says. “But with mediation, there is no record at all, unless you decide to tell someone about what happened.”

Mediation is mandatory in estate list actions launched in Toronto and Ottawa under the province’s Rules of Civil Procedure. But even if that wasn’t the case, Kirsh says she would still recommend the process to her clients, who have generally found it more fulfilling than litigation.

“You get more interaction with your mediator than you ever would with a judge, and it’s considerably cheaper and less time-consuming than court,” she says. “You could probably get most mediations completed in one day, whereas there are almost no trials that can be finished inside a single day.”

This is the first instalment in Toronto trust and estate litigator Felice Kirsh’s look at mediation in estates disputes. Stay tuned for part two, where she will explore the types of matters that work best in mediation.

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