In Ontario, the parties are required to exchange mediation briefs which include a statement of the issues to be mediated. It is wise to use the mediation brief as an opportunity and a tool to assist in settlement. The mediation brief is an opportunity to tell the client’s story in a compelling and persuasive manner so as to convince the opposing parties on the merits of settlement.
Lawyers should spend time on the mediation brief. The goal, in part, is to educate the mediator on the relevant information necessary to assist in settling the matter. There is no need for the mediation brief to be a lengthy document. Briefs can, and should be, clear and concise.
Rule 75.01.08 provides that a mediation brief is required for all mandatory mediations and must be provided to all parties and the mediator at least seven days before the mediation. Form 75.1C outlines what should be included in a mediation brief (statement of issues) however, it can be modified. Form 75.1C sets out three sections: 1) Factual and Legal Issues in Dispute; 2) Party’s Positions and Interests (what the party hopes to achieve); and, 3) Attached Documents.
A well-written and documented brief will assist in achieving a successful mediation. Lawyers may consider adding a short “Overview” that talks about the theory of the case, highlights the main issue(s), the status of the litigation, and any outstanding offers to settle.
Consider also including a family tree, explaining the relationships and any estrangements or difficulties that might exist so the mediator will have appropriate insight into the family dynamics.
Be careful in the approach since the goal is settlement, not to engage in scorched earth warfare. Demonstrate that your client has a good, strong, case but do not include inflammatory language or accusations which will only serve to heighten already emotive parties.
For the “Facts” section consider including a chronology or chart of notable events.
It is important to include key documents relevant to the issues.
Lawyers should have all the documents their clients need to make informed decisions about the legal issues in dispute and that are required to reach a possible settlement. Consider including the following documents:
- The testamentary documents (wills, codicils, deeds);
- A chart or list of the estate assets and liabilities, including a list of jointly held assets and any assets that passed outside of the estate (s.72 assets). Include account opening documents for joint accounts. Include insurance designations insurance policies;
- Relevant marriage or domestic contracts, separation agreements;
- In a Will challenge scenario, consider including the drafting lawyer’s notes;
- If capacity is an issue, include relevant medical records;
- Consider the value of an expert’s report;
- If there is a family business involved, it may help to have an organizational chart including the business structure, shareholder interests, etc.:
- If it is a passing of accounts application dispute, obtain and understand the vouchers;
- Obtain real estate valuations/opinions of value;
- If it is a dependant’s support claim, provide life style analysis; and,
- Consider tax issues and outcomes.
These are just some of the relevant preparation considerations. The documents you choose will depend on the specific legal issues in dispute. Consider including only the “key” documents, there is no need to include the entire file.
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.