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Mediation Series: Is There a Benefit to Mediation in Estate Litigation?

Estate litigation involves some of the most emotionally fraught disputes. Litigating parties, or even individuals who find themselves in a dispute at the pre-litigation stage, are often grieving the loss of a loved one, or perhaps trying to remedy an abuse by a fiduciary.

These disputing parties are often individuals who are closely related, either through blood or marriage. Unlike corporate/commercial disputes, where there is more likely to be little, or no personal connection, estate disputes are often complicated by emotion and lack of objectivity in the decision-making process. Long, often life-time-held, family resentments, feelings of inequality, inadequacy, competition amongst siblings, prove to be a certain recipe for intractable disputes. The “real” cause or root of the disagreement may never be clear, or even related to what is plead in court documents.

Notably, the person at the heart of the dispute, the testator, is no longer available for consultation, or perhaps may be incapable of meaningful participation. Many times, the disputing parties are only connected through the deceased person and would not otherwise wish to have anything to do with the other.

For these reasons, estate disputes often benefit from mediation, a form of alternative dispute resolution. The use of mediation to resolve estate disputes has grown considerably and is mandatory in some jurisdictions.

Mediation

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. Estate mediation is more generally “interest-based” as it explores solutions that meet the needs and interests of the parties, rather than “rights-based” litigation which focuses more on the parties’ rights, or, rules and the law.

There are also many benefits to conducting a mediation, even before the adversarial process begins. Its appeal in the private nature of the resolution process (as opposed to the public court system); the parties may be able to preserve relationships, there is a better chance of success in finding a mediated solution, and mediation is less costly. It is easily apparent that a mediated settlement is a better solution in most situations.

Even though there is no guarantee that an estate dispute will be settled at a mediation. estate mediation has proven to be a highly successful alternative to the expensive, emotive and lengthy court processes involved in these types of disputes. If lawyers and clients put in the effort and necessary preparation before and during a mediation session, the chances of a successfully mediated outcome increases substantially.

This paper is intended for the purposes of providing information only and is to be used only for the purposes of guidance. This paper is not intended to be relied upon as the giving of legal advice and does not purport to be exhaustive.

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