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Mediation Series No.4: Choosing the “Right” Mediator

It is important to choose a mediator with experience in the area of the issues in dispute and having regard to the personalities’ involved. While some believe that any experienced mediator can mediate an estate dispute, regardless of training and experience, it is important to consider the complexity of the estate litigation matter and the type of assets and interests involved. Estate litigation is a unique area of law with unique considerations.

The types of issues mediated in the area of estates include: Will, estate and trust challenges; dependant support claims; family law act elections, passing of account applications by fiduciaries’ including, attorneys, guardians, trustees and estate trustees; power of attorney litigation; trust rectification/variation/interpretation applications, guardianships for property or for personal care; elder law issues including elder abuse; capacity proceedings; end-of-life disputes, fiduciary litigation; and tax considerations and consequences arising in estates and trusts.

Complex estate disputes often involve family businesses, corporate structures, estate freezes, shareholder agreements, property and corporate valuations, co-ownership to list but a few. Often the estate dispute will touch on more than one of these issues. Therefore, it is important to choose a mediator who understands and is knowledgeable about the area of law which predominates the subject matter of the proceeding and which also reflects the dollar value attributed to the matter.

Choosing a mediator who is a specialist in estates and trust litigation often aids in getting the parties to a mutually agreeable resolution of the issues.

Choice of the mediator may include, lawyers, retired judges, social workers, elder law experts or other professionals.

Lawyers as Mediators and the Rules of Professional Conduct

If a lawyer acts as a mediator in Ontario, Rule 5.7 of the Rules of Professional Conduct sets outs specific obligations by which that lawyer must abide. Rule 5.7-1 states:

A lawyer who acts as a mediator shall, at the outset of the mediation, ensure that the parties to it understand fully that:

(a) the lawyer is not acting as a lawyer for either party but, as mediator, is acting to assist the parties to resolve the matters in issue; and

(b) although communications pertaining to and arising out of the mediation process may be covered by some other common law privilege, the communication will not be covered by the solicitor-client privilege.

The commentary to this Rule reminds lawyers that in acting as a mediator, generally a lawyer should not give legal advice to the parties during the mediation process. This does not preclude the mediator from giving legal information on the consequences if the mediation fails. Further, neither the lawyer-mediator nor a partner or associate of the lawyer-mediator should render legal representation or give legal advice to either party to the mediation, bearing in mind the provisions of the rules in Section 3.4 of the Rules of Professional Conduct that deal with “Conflicts” and its commentaries and the common law authorities.

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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