Mediation works well when all parties are prepared and understand the goal of mediation. A settlement should be reached on full knowledge, and transparency ensuring the best forum for understanding the issues involved, rather than having one party left in the dark about an aspect of the dispute. All Advisors can benefit from understanding this process, which has a high success rate for settling estate litigation cases.
What Should be done to Prepare for Mediation?
Lawyers should prepare their clients for the process, underscore the importance of confidentiality, explaining that this is a chance to step away from the adversarial process.
Clients should be prepared to be respectful of the process, to disengage the anger and entrenched views, depart from using blaming language and adopt neutral language, all with a view to compromise and brokering a deal that can be managed.
Importantly, no participant will leave with everything they want, nor will any party be completely satisfied with the process.
Documentary preparation is critical, and the mediator should be provided with helpful mediation briefs and all relevant materials including the drafting solicitor’s records, medical records etc... depending on the issues involved.
Counsel should have a full understanding of the assets of the estate, or related dispute and the legal issues. Settlement agreements are to be prepared by the parties or their counsel and should not be prepared by or witnessed by the mediator.
The mediator will remain neutral, is not an advisor and cannot become a witness.
Kimberly A. Whaley, founding partner of the boutique, Whaley Estate Litigation Partners (WEL Partners). Practicing Dispute Resolution in Estate, Trust, Capacity/Incapacity, Powers of Attorney, Guardianship, Dependants' Support, Elder Law & related Wealth Succession challenges.
WEL PARTNERS -Top 5 Trusts & Estates Boutique Firm in Canada since 2014 as ranked by Canadian Lawyer.
Kimberly is designated as a Certified Specialist in Estates & Trusts Law by the Law Society of Ontario. She has been peer rated by The Best Lawyers in Ontario & Canada since 2009; Chosen by Lawday Leading Lawyers as one of the top 60 leading lawyers in Estates & Trusts; Lexpert and Chambers ranked.
Kimberly is Past-Chair of the OBA Trusts & Estates Executive, Elder Law Executive, and honorary member of the CBA Elder Law Executive. Kimberly is also a past member of the OBA Solo, Small Firm and General Practice Executive, the Institute Executive, the Awards Executive, and JUST MAGAZINE editorial Board Executive. She is a registered member of the Society of Trusts and Estates Practitioners (STEP) (worldwide) and is past chair of the STEP (Toronto) Executive. Kimberly is a designated TEP. Kimberly is an honorary member of The Professional Advisory Group of the Baycrest Foundation, and member of the Estate Planning Council of Toronto.
Kimberly is a co-contributor to the yearly Canada Law Book publication "Key Developments in Estate and Trust Law in Ontario" authoring or co-authoring various chapters since 2008.
Kimberly has taught at Queen's University, Western University, University of Toronto, as well as Osgoode, and contributes to Continuing Legal Education programs for lawyers, professionals, and the community.
Registration $25 - Professional Advisors
No charge for EPCC Members.
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