Estate Mediation  


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Marsha Onyett

Reprinted with permission from General Practice Section Newsletter
Generally Speaking…, Vol. 4, No. 3 - June 1999

Mediation in estate matters has many of the same advantages as mediation in other matters:

1.

confidentiality,

2.

scheduling of sessions at times and in places more convenient to the parties (often on evenings and week-ends to minimize lost time during the regular work-week),

3.

holding mediation sessions earlier than in hearings in the conventional court process, and

4.

allowing the parties themselves (with their lawyers, if they so choose) to deal together with the issues in a mutual attempt to resolve them, with each party having the opportunity to express not only his or her needs, but also his or her underlying interests as well.


Just as mandatory mediation in other areas of the law has come into being, so too will mandatory estate mediation come into force in September, 1999.

Estate mediation brings clients with disputes related to the administration of estates together with a view to their jointly working out a mutually satisfactory resolution of the areas in dispute with the help of a neutral mediator.

When the "interest-based" model is used, the process involves not so much attempting to resolve the parties’ strict legal rights (for example, who is entitled to the silverware?) as trying to uncover the underlying root causes that are driving the parties’ positions (such as a need for recognition within the family or respect from a particular sibling).

Even in cases where such a mutually acceptable resolution is not reached, the very fact that all the parties are willing to meet together in a room to actively listen to each other often narrows down the areas of dispute, and sets the agenda for a later arbitration or court hearing of the remaining issues, if the parties so wish.

Why is mediation particularly useful in estate disputes?

Estate disputes are usually highly personal in nature and often are emotionally charged. They tend to arise at a time when family members (or a circle of friends) are trying to come to grips with the death of a loved one. The disputes are often between persons who, for family or other reasons, may wish to have a continuing amicable relationship in the future. Frequently the "glue" that has been holding the family together (the deceased parent) has suddenly disappeared and litigation is not always the best forum in which to allow a restructuring of their relationships. Anything that can reduce the tension and negativity of a long drawn-out court proceeding, with each side pitted against the other, is valuable in the context of long-term future relations.

Some estate disputes arise because the deceased failed to, or was unable to, come to grips with dealing with certain assets during his or her lifetime, or in his or her Will. Some estate disputes arise because the provisions of the deceased’s Will are unclear. Some arise because the terms of the Will have been learned at a time of stress and do not meet expectations, be these expectations reasonable or unreasonable. Some arise simply because strong emotions have been brewing "beneath the surface" for years.

Key assets that are often the basis of such disputes are the family cottage, prized personal possessions and the family business. Finding out the key interest, needs and underlying emotions of all of the parties in a neutral environment often facilitates the resolution of these disputes.

Interests, needs, and emotions are often intertwined. Sometimes just allowing a party to be heard by all concerned can reduce the tension that has built up, sometimes over a long period of time, can pave the way to a mediated settlement worked out by the parties themselves. Studies have shown that such self crafted settlements are more likely to be upheld by all concerned.

In some cases, a party’s interest actually centres on what that party does not want another part to have, rather than on what the party wants to have for himself or herself. This underlying motivation is often only discovered by digging below the surface of the positions taken by that party.

Why is brother, John, who already has a cottage of his own, so determined that his sister, Anita, not receive the family cottage as part of her share of the residue of their father’s estate? What unresolved emotional matters have to be unearthed to establish the real motives, and the real interests of John, in taking such a stand? What does the family cottage really mean to John? Are there some other estate assets that John can receive to equalize the value of the cottage, after the emotional aspects have been aired and put to rest?

In matters of estate mediation, mediators with a background in estate law and administration have the experience to recognize the problems that the situation can generate and to deal with the issues (both stated and unstated), in order to help the parties reach a mutually acceptable resolution. They bring to the mediation table an awareness of various additional options, be they "right-based" or "interest-sensitive", which may assist the parties to resolve these matters within the confines of the mediation session.

Marsha Onyett, an estate lawyer and mediator, is a partner in The Centre for Estate Mediation in Toronto, Ontario. Ms. Onyett can be reached at (416) 865-1639 or estates@idirect.ca.

For more information on Mediation click here.

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Norman B. Pickell  Lawyer - Mediator - Arbitrator  58 South Street, Goderich, Ontario N7A 3L5  Telephone (519) 524-8335   Fax (519) 524-1530