Accounting for Law
Estates & Wills & Trusts

Key for evaluative mediator to know subject matter

In the third instalment of a series on the benefits of estate mediation, Toronto trust and estate litigator and mediator Felice Kirsh discusses how to select a suitable mediator.

Whether acting as a mediator or as counsel to one of the parties, Toronto trust and estate litigator and mediator Felice Kirsh favours an evaluative approach.

Kirsh, partner with Schnurr Kirsh Oelbaum Tator LLP, tells AdvocateDaily.com that a mediator who is taking an evaluative approach gives their opinions about the strengths and weaknesses of the disputants’ legal cases.

That’s in contrast to the facilitative approach favoured by others in the field, where the mediator takes a more withdrawn role to focus on facilitating negotiation between the parties.  

“I’m not a fan of mediation where the mediator is just a message-taker,” Kirsh says. “I like to get involved, roll my sleeves up and really get into the issues.

“I think that clients should know what a neutral person’s opinion is because that could be the opinion of a judge who hears it,” she adds.

To be an effective evaluative mediator, Kirsh says it’s crucial that the neutral party knows the subject matter.

“I like to have someone who knows trust and estate law because it’s a very specific type of area, and I want them to know what the good and bad parts are of both parties’ cases,” she says. “As a practitioner, I wouldn’t want to mediate a motor vehicle accident case, and similarly, I don’t want someone coming in who knows nothing about trust and estate law.”

The one exception to her rule comes when the mediator is a retired judge.

“Even though they might have been specialists in a different area, because they have been judges, they tend to be able to figure things out,” she explains. “Because they have the experience of seeing and deciding so many different types of cases that come before them, that intimate knowledge of the area is not as critical.”

As long as the parties are represented by counsel, Kirsh says the selection of a suitable mediator should be a relatively smooth process.

“Good counsel can come to an agreement on a mediator without much difficulty,” she says. “They can also help a client to understand that the choice of mediator should really be left to counsel because we know what the options are, who we like to use, and who will do a good job.”

Stay tuned for part four, where Kirsh explores how to prepare a client for mediation.

To read part one, click here.

To read part two, click here.

To Read More Felice Kirsh Posts Click Here
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