Mandatory Mediation in Estate Litigation: Do you need an Estate Litigation Lawyer?
It is often assumed that most cases are settled in a courtroom. However, there are ways of settling disputes or lawsuits outside of court, and one commonly used method is the use of mediation. Mediation is a form of alternative dispute resolution (ADR), which serves to resolve problems between parties in an enforceable manner. A capable Estate Litigation Lawyer is key to getting the most out of a mediation.
In Ontario (certain geographic locations), there exists a requirement of mandatory mediation for estate matters under Rule 75.1 of the Rules of Civil Procedure. This pertains to many types of estate disputes i.e. will challenges, support claims, executor disputes, and passing of accounts, and more.
Mediation does not necessarily imply a win-or-lose situation, but it allows for an opportunity to foster creative solutions to a problem. In a generation where baby boomers are seeking to pass down wealth and a rise in blended households is complicating this process, estate litigation cases are expected to see a dramatic surge[1]. This is why searching for an experienced and knowledgeable litigation lawyer is a necessity. In estate litigation especially, mediation produces a fair amount of benefits.
- Comfort to The Parties Involved
Since estate litigation normally involves family members, opting for mediation can allow for a close and comfortable environment to foster better communication between members involved. Typically mediation will involve a skilled mediator assisting parties in defining rules of conduct, advising parties of confidentiality and potentially fostering discussion to ensure productivity and a consistent flow to the event.
Your chosen estate litigation lawyer would prepare their respective parties by describing the process, defining the legal issues that will arise, and providing a substantive analysis on the matter. This is in addition to the litigation lawyer discussing strategies, costs, expectations, etc. All of these factors allow for a more informal setting with dense legal analysis, which all works towards settling a dispute without the intimidation of a court room.
- Cost Efficiency
Mediation requires all parties to share the cost of the session, so generally individuals can expect to pay only their portion, subject to any settlement agreement. Mediator fees vary widely, from $600 to several thousands of dollars per day. Keep in mind that this does not include litigation lawyer fees for individual parties.
Conversely, litigation costs – especially litigation fees – are significantly higher and often unpredictable. A common misconception with estate litigation is that the assets of the estate are used to fund the matter – this is not the case however. In 2005, the Ontario Court of Appeal defined the ‘modern approach’ to costs in estate litigation (McDougald Estate v Gooderham). This approach required courts to follow the ‘loser pays’ rule which is found in civil litigation, unless circumstances imply otherwise. For example, if there is doubt in the testator’s capacity, or if the estate was not properly administered, then costs would be calculated differently (amongst many reasons). Thus, a litigation trial involves significant risks and costs for all of the parties, and especially the one side which loses.
To avoid losing the case and paying these extra fees in any litigation matter, it is recommended to retain an experienced estate litigation lawyer who can advise you at every step of the way.
- Availability of Choices
After mediation has concluded, an estate litigation lawyer will review any concessions reached and/or any issues outstanding. The main benefit of mediation is that it offers several courses of action after it has been completed, unlike upon completing a trial.
These include the choices of: further mediation; an alternative dispute process (arbitration); requesting compliance with undertakings or agreements made at mediation; and of course, requesting trial. In litigation judges will impose decision upon parties, whereas with mediation parties are provided with an opportunity for creative solutions through multiple available routes.
As a client dealing with a tremendous amount of emotional stress and potential financial burden, the availability of choices may provide relief when you think you have limited options. However, it can also confuse someone who is not familiar with the dealings.
Make sure to retain an experienced litigation lawyer with an intimate understanding of estate mediation to have your rights adequately protected. Considering that litigation lawyers play an important role in assuring that parties are fully prepared for mediation, seeking a lawyer that has thorough knowledge of estate assets and the law is highly recommended.
