Mediation Overview

Booking Your Mediation        Mediation Agreement

TYPES OF MEDIATION

Mandatory mediation of estates disputes is governed by Rule 75.1 of the Rules of Civil Procedure. It presently exists in Toronto, Ottawa-Carlton, and Windsor, and is a required first step in the litigation. Generally there is a Court Order for Directions. The designated parties and their lawyers, if they are represented, are required to attend the mediation session. If a designated party requires another person's approval before agreeing to a settlement, he or she must arrange to have ready telephone access to the person throughout the session. To reinforce the seriousness of the mediation proceedings, if a designated party fails to attend during the first 30 minutes of the mediation session and it is not practical to conduct the scheduled mediation session, the mediator is required to cancel the session and immediately file a certificate of non-compliance with the Court.

Voluntary mediation is available in all other cases, on consent of the parties. Frequently Counsel will book a mediation even before the commencement of legal proceedings, with a view to exploring settlement options before the stress of the litigation process is visited on the parties.

PROCEDURE AT MEDIATION

Statement of Issues

Every party is to prepare a statement of issues and serve it on the other parties and the mediator. It will include:

1. The factual and legal issues in dispute,
2. That party's position and interests, and
3. Any relevant documents. These would typically include:
   1. The Will;
   2. The inventory of the estate and the current value of the estate;
   3. A family tree, including the ages of the relevant family members;
   4. If the outcome of the mediation depends on the value of a significant asset such as a piece of real estate or a family business, a current valuation or appraisal of this asset so that the negotiations will properly reflect the true value;
   5. The accounts of the estate trustee;.
   6. The Order for Directions and any documents required by it to be produced, such as:
      1. medical records,
      2. financial records,
      3. lawyers' files.

Having these documents available for an estate mediation can dramatically affect the mediation, and ultimately the lawsuit. Where key background information is not available, the likelihood of a settlement is seriously compromised.