Preparing for mediation of estate disputes
By AdvocateDaily.com Staff
Mediation has come to play such a significant role in estates disputes that lawyers need to undertake extensive preparation in order to represent their clients’ best interests, Toronto estates and trusts lawyer Ian Hull tells AdvocateDaily.com.
“In the last 15 years, there has been a dramatic change in advocacy skills because in almost every case mediation is the central venue for resolving estate disputes. So lawyers have had to adapt their practices to create an environment where we’re staunchly advocating for our clients at mediation, but at the same time we’re mindful of the reality that this is probably their only day in court, so to speak,” says Hull, co-founding partner of Hull & Hull LLP.
“For most of the clients I act for, it’s impractical to look for a result that is actually going to be adjudicated, just from a time and money standpoint. The costs of a trial are prohibitive and the risks are just as significant,” he says.
Mediation — which is mandatory for estate matters in Toronto, Ottawa and Windsor — is so “crucial,” Hull says, that he often tries to get to mediation before the discovery stage, in part to save costs. But it’s still more important to ensure that everything is in order first, “because going to mediation unprepared is fatal, and a waste of time and money.”
Hull says the first thing he does when preparing for mediation is to ensure that anyone with a financial interest in the matter is covered off. If minor children are involved, for example, the Office of the Children’s Lawyer is served, while the Office of the Public Guardian and Trustee is served if someone is incapable.
“I want to make sure I have everyone at the table,” he says. “Because unlike conventional litigation, sometimes you have to think a bit about whose financial interests may be affected. I really focus on getting the ducks in order at the start.”
The next step is to work with other counsel and select a mediator, Hull says.
“I’m pretty flexible because most mediators who do estate litigation are very skilled at it. As in any civil litigation, you want to go to a legal expert, to a senior lawyer who specializes in the area, or you may want to consider a retired judge. The unique factors of each case will determine the best choice.”
A senior lawyer who has years of experience in the estates field “can cut through the technical legal issues a little quicker,” while most judges “tend to have a more general understanding of the legal issues,” he explains.
Despite that, “Some clients just want to hear from a judge. And that’s their right,” Hull says.
“Someone who sat on the bench for 20 years has deep experience. So their views as to the success or failure of a case can be very influential. So I assess that at the start, as to whether or not that’s the right choice of mediator. That’s a fundamental starting point.”
Before a mediation can be scheduled, a court order is needed for third-party disclosure, such as hospital records, and that takes time and money, he says.
“Getting medical records from a third-party hospital can be time-consuming. It can take months. But once you have those, I typically can move to mediation pretty quickly after that.”
Once all of those steps have been completed, Hull says he puts together a brief to make his case.
“I try not to get too emotional about it,” he says. “There are always enough emotions in estate matters. So I try to be very clinical and professional in my brief, and file it well in advance of the mediation.”
Before the mediation is held, Hull meets with his client to discuss what’s about to take place.
“I always have that pre-mediation meeting, just so I’ve got the expectations of the client in my mind, and so they realistically understand the result that may come out of it.”