Alternative Dispute Resolution & Mediation

Alternative Dispute Resolution, sometimes called Appropriate Dispute Resolution, involves a range of techniques used outside of (at the same time as) traditional litigation. ADR procedures are either mandated or chosen by parties in conflict, to resolve their dispute in a less adversarial or confrontational way. These procedures are more usually voluntary and are confidential.

ADR is an umbrella term for many ways to resolve a dispute. The most common and well-known procedures are mediation, arbitration, or a combination of the two.

Arbitration involves adjudication by a neutral third-party. Most arbitration proceedings are designed to be binding. Arbitration will, in most instances, take place due to an agreement between the parties, either under a pre-existing contract or based on specific terms of an arbitration agreement after a dispute has arisen. Unless otherwise agreed, the terms of the applicable arbitration legislation will govern (for example the federal Commercial Arbitration Act, or the applicable provincial legislation, such as Ontario’s Arbitration Act, 1991). Arbitration is often chosen as a litigation alternative in commercial or corporate disputes.

Mediation is a process in which the parties agree to an impartial facilitator (a neutral third party) to assist them to reach a voluntary settlement of the issues in dispute. Unlike arbitration, the mediator does not render any decisions, and the parties may terminate the process at any time. If a voluntary settlement is reached it only becomes binding on the parties upon signing a formal settlement agreement, often in the form of Minutes of Settlement. Mediation is a highly effective, successful, and often less costly (though in itself not inexpensive), alternative or addition to an adversarial dispute.

Med-Arb is a hybrid approach which combines the benefits of both mediation and arbitration. The parties first attempt to reach an agreement with the help of a mediator. If that does not produce results, or if issues remain unresolved, the parties may move on to arbitration. If the mediator is also qualified as an arbitrator, the same facilitator can fulfill both roles and make a binding decision quickly since there will be familiarity with the facts of the dispute.

Whaley Estate Mediation

Kimberly Whaley is a trained and experienced mediator. In addition to participating in years of mediations both as counsel and as mediator, Kimberly received certification through the Institute for Conflict Management in 2008. She was inducted into the Ontario Chapter of the Canadian Academy of Distinguished Neutrals, Ontario Branch in December 2021.

To discuss your mediation requirements, check conflicts, arrange dates both virtually and in-person, please contact Kimberly directly at (416) 355-3250, kim@welpartners.com, or, Estate Clerk, Bibi Minoo at (416) 355-3251.

In estate litigation, emotion and principle often underscore the proceedings and contribute to intransigence and entrenchment in positions. Under such circumstances, legal and professional costs can accumulate exponentially.

Mediation is an effective tool to a more expedient, efficient, and costly resolution which is client based, and client controlled. As a neutral subject matter specialist, Kimberly, and Bryan both assist in the facilitation of resolution.

Kimberly Whaley and Bryan Gilmartin mediate estate, trust and realted disputes including in the areas of:

• Wills, Estates, & Trusts
• Breach of Fiduciary Duty
• Wealth Succession Disputes including Equitable Claims
• Succession Law Reform Act disputes including intestacies, will validation proceedings, and Dependant Support Claims
• Passing of Estate Trustee/Estate Trustee During Litigation, Trustee, Attorney, Guardian and Fiduciary Accounts
• Capacity & Undue Influence Proceedings
• Guardianships for Older Adults & Children under disability
• Powers of Attorney
• Elder Law & Elder Financial Abuse
• Solicitor's Negligence
• Predatory Marriage

Kimberly Whaley, Qualified Arbitrator

Kimberly completed the Gold Standard Course in Commercial Arbitration from the Toronto Commercial Arbitration Society (TCAS) in April 2026. Kimberly is designated as a Qualified Arbitrator (Q. Arb.) by the ADR Institute of Canada (ADRIC).

Mediation Resources

Checklist: Preparing for an Estate Mediation

Checklist: The Do’s and Don'ts of Mediation

Paper: Best Practices in Estate Mediation and Documenting the Settlement, The Essential Guide to Estate Dispute Mediations: Unique Challenges, Creative Solutions for Lawyers, Kimberly A. Whaley, September 29, 2022

Publication: "Mediation Confidentiality and Settlement Privilege", by Kimberly A. Whaley, Money and Family Law, Issue 36-3, March 2021

Publication: “Resolution of Estates and Trust Disputes: Mediation and Alternative Dispute Resolution in Canada” - Kimberly A. Whaley, The International Academy of Estate and Trust Law, Oxford University Press, Trust & Trustees, February 2020

Publication: "The Essential Guide to Estate Dispute Mediations: Unique Challenges and Creative Solutions for Lawyers", by Kimberly A. Whaley, The Advocates' Quarterly, Volume 50, Issue 2, October 2019

Paper: Tips and Tools to Enhance an Estate Mediation, Kimberly A. Whaley, April 29, 2019

Paper: Why Mediation Works, , November 2014

Paper: Mediation -- The Better Way In Estate Disputes, Brian Wilson and Kimberly A. Whaley

WEL Blog: Articling Weekly No.4: Resolving Estate Disputes: The Role and Impact of Mandatory Mediation in Ontario

The Advocates' Quarterly paper reproduced by permission of Canada Law Book, a division of Thomson Reuters Canada Limited.

Both Kimberly Whaley and Bryan Gilmartin attended the Harvard Law School, Program on Negotiation's "Harvard Mediation Intensive" in November 2024 receiving certification. Kimberly and Bryan mediate your disputes jointly or individually.