Mediation


A Good Mediator

Mediation is a common occurrence in estate litigation. Mediation is also popular in other areas, including family law and even commercial litigation. When choosing a mediator, I look for the following characteristics:

If the other side suggests a mediator you've never heard of, ask around. What do your colleagues think and what is the mediator's reputation like? To be honest, I'm never too quick to agree to a mediator suggested by opposing counsel if I don't really know their style and reputation. Opposing counsel may have a comfort level with the mediator or know something you don't that could work against your client.

By keeping the above characteristics in mind and doing your homework, you and your client will likely have a better chance of satisfactorily settling the dispute.


Mediation - Confidentiality Preserved

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Settlement and Mediation

In the context of estate litigation, mediation, as well as pre-trial conferences, often leads to settlements. The importance of carefully documenting a settlement should not be overlooked. Where required, a Rule 7 motion (court approval of a settlement where a party is under a disability) will have the effect of forcing the parties to document their settlement by way of a supporting affidavit, proposed minutes of settlement, and/or a draft order. As a result, the parties know exactly where they stand and what they can expect in the future. While a successful pre-trial conference may result in a court order on the spot, such an order, if granted, usually indicates that the parties have simply settled without canvassing the terms.

Too often a settlement is not properly documented and subsequent problems inevitably arise. It has been my experience that parties attending mediation or a pre-trial conference are anxious to leave. They may be emotionally exhausted both from the day and from the litigation generally and suffering from financial fatigue. In fact, the parties may have a hard time just being in the same room. Counsel too becomes frustrated by a long and arduous day and when a settlement is finally reached are anxious to leave. Counsel mistakenly believe that the matter can be "written up" at a later time.

In my view, failing to sign rudimentary minutes of settlement, or an outline of settlement, with comprehensive minutes to follow is a mistake. Predictably later disagreements arise as to the exact terms that were agreed to. It is my experience that drafting minutes of settlement, even rudimentary ones, inevitably raise issues that the parties did not initially contemplate or think to address. It is therefore worth taking the time to draft minutes of settlement, or an outline of key terms, to be signed by all parties at the conclusion of a successful mediation or pre-trial conference.

Once drafted, it is my practice to have the client sign minutes of settlement rather than counsel. This helps ensures that if a client tries to resile from the settlement at a later date, the client's signature is clearly staring up at them (clients should read the minutes before signing).

Finally, once a settlement is reached and minutes of settlement signed, the parties should seriously consider bringing a motion to approve the settlement even if such a motion is not technically required. The cost is well worth it. There is nothing like the protection and blessing of a court order to ensure a harmonious future.


When to Mediate

I recently attended a client meeting where the issue of mediation was hotly debated. My client expressed reluctance in participating in a process with a party that my client regarded as intransigent and obstinate. My client also thought that proposing mediation would suggest to the other side that our case was weak and we were looking for a way out. After persuading my client that mediation was at least worth considering, a more substantive debate arose as to when to mediate. This debate deserves some comment.

In many ways, mediation is all "the rage" and early mediation is especially championed in the estate setting. In general, society is reluctant to see family members fight over what is perceived as a windfall. The courts reflect and promote this view. My colleagues and I have all blogged on the merits of mediation and I won't repeat them here. But parties can mediate too early. Often parties attend mediation without knowing the full extent of the estate assets or merely having a vague idea. Liquid assets might be readily ascertainable, but have all the liquid assets been uncovered i.e. have proper inquiries been made? Assets such as art, vintage cars, or family antiques are harder to evaluate and may require a professional appraisal, all of which takes time. Moreover, the parties have often not exchanged relevant documents before attending mediation, something which they would be required to do if mediation took place at a later stage. Exchanging relevant documents will help a party better understand the risks they face in pursuing litigation, the weakness of their case, and the strength of their opponent's case (and vice versa). Forewarned is forearmed.

Back to my client meeting where it was decided that it was too early to mediate. An allegation had been made that an estate trustee had stolen money from the estate. However, no one was quite sure how much was taken and whether the estate trustee acted alone or in concert with an investment advisor. Some sort of accounting was required, supported by back-up documentation before mediation could take place and ultimately be effective. A court order might even have to be obtained to get at the necessary information. Mediation would happen, but at the right time with the right information. It is imperative that a party know their case so that they know when to mediate and how best to settle.