Tuesday, March 28, 2006

Mediated Estate Disputes

I am a big fan of using mediation to resolve wills and estates disputes (and other kinds of disputes). The basic idea is to get an independent third person to assist with settlement discussions. Because the process is informal, and different mediators have different styles, it is difficult to generalize about the process. In my experience, usually each party's lawyer makes an opening statement setting out his or her client's positions on the issues in dispute. Then there may be some discussion with all of the parties present. It is common for the mediator to separate the parties, and meet with each side separately. The mediator may then go back and forth communicating offers and counter offers. If successful, the parties reach an agreement everyone can live with.

I say "live with," because I doubt anyone comes out with everything he or she wanted going in to the mediation. Negotiated settlements involve give and take. I have heard mediators say that if everyone comes out a little bit unhappy, then they have probably reached a fair settlement.

Mediations give the parties the opportunity to fashion their own resolution, instead of having it imposed on them. The cost savings of a mediated settlement, in both time and money, when compared with a trial are enormous.

Illinois attorney Joel Schoenmeyer is also a big fan of mediation. At his "Death and Taxes-The Blog," he is compiling an excellent list of estate planning and probate-related mediation resources as follows:

Part 1 (here): Articles about estate planning and probate-related mediation (if an article is available on-line, you can click on the word "link" following the article citation to access it)

Part 2 (here): Links to court probate mediation programs

Part 3 [here]: Links to websites that relate to probate mediation

In British Columbia, we do have a formal process set out in the Law and Equity Act, Notice to Mediate (General) Regulation, which allows a party to a Supreme Court of British Columbia proceeding to compel the other party or parties to attend a mediation.

I think mediation works best if all parties agree to the process at the outset, rather than when one party compels the others to attend. If the other side is agreeing to a mediation, then I see that as a signal that the other side is showing a willingness to reach a negotiated resolution. On the other hand, if the other side is opposed, I am not sure there is much to be gained by forcing him or her to attend.

In Kelowna, we are blessed with a number of lawyers who are very talented mediators. You can also arrange through the trial coordinator at the Court Registry to have a Supreme Court of British Columbia judge act as a mediator. Although in a mediation, a judge does not impose a decision, sometimes it is helpful if a judge provides his or her views on the case to the parties in the relatively informal setting of a mediation. A judge's opinion, even when not binding, tends to moderate a party's--or a party's lawyer's--unrealistic expectations.

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