Can Mediation Resolve Estate Disputes?

Clients wonder how mediation works in estate cases. As an estate lawyer, I use mediation to resolve clients’ estate disputes. Want to learn more about mediation? Read this preliminary letter I sent to Joan (a fictional client) before her mediation.


Dear Joan,


You will be attending an all-day mediation next Friday.


I am preparing a written brief to outline your case for the mediator.  I will include a summary of facts and law to support your claims.  I have included a list of the evidence that supports your case.


You are not swearing the information in the brief is true. Your material in the brief is confidential and cannot be used in court.


The mediator we chose is an experienced estate lawyer. He is familiar with the estate law in your case.


Preparing for Mediation


We will meet to prepare a strategy for negotiation at the mediation.

The mediator will want to know:


·       If offers to settle have been exchanged, if not, why not?

·       What happens if the matter does not settle today?

·       What is your best alternative to not resolving the dispute?

·       Are you prepared to compromise to resolve the matter?


Reasonable Offers to Settle


I will help you prepare an offer to settle. You should also be ready to accept reasonable offers.


Some offers made at mediation are only good for a limited time. The other side’s lawyer may say, “take it or leave it”. You may not have a lot of time to consider your options.


Frank’s lawyer can walk away if his offer is not accepted. I cannot tell when/if an offer will be made. You should be prepared to accept an offer that is a good compromise. You may later regret not accepting a reasonable offer.


Joan, it may be in your best interests to compromise. You can decide to finish this case. You cannot be pressured to settle.


Mediation is Informal


Mediation is not a court procedure. It does not follow court rules. There are no depositions or cross-examinations at mediation. You are not giving evidence under oath.


You have discussed your matter with your financial planner. He has advised you about the tax considerations in your case.


Reasonable offers must be realistic.


The Trick to Success at Mediation


Prepare, prepare and prepare.


The majority of cases settle at mediation. This is cheaper than going to trial two-three years from now.


The financial cost of not ending a lawsuit early is frightening. The uncertainty of a continuing battle is stressful.


Remember, the mediator:


·       is not a judge;

·       does not make decisions;

·       wants to understand each side’s strengths and weaknesses; and

·       cannot force you or the other side settle.


Here are some benefits of mediation:


·       both sides hear the details of the other side’s story

·       mediation allows this to take place in a neutral setting

·       there is less emotion and stress than a courtroom

·       early resolution of estate disputes saves time and money

Read more about mediation in this Guide to Mediation and in these posts: Mediation Secret: No Lawyer Can Guarantee You Will Win in Court and New Ways to Win Your Legal Dispute .

Edward Olkovich (BA, LLB, TEP, and C.S.) has successfully resolved many estate disputes involving powers of attorney and capacity issues. These included contested court applications under Ontario’s Substitute Decisions Act, 1992. Ed is an Ontario lawyer, nationally recognized author and estate expert. He is a Toronto based Certified Specialist in Estates and Trusts. Edward has practiced law since 1978 and is the author of Executor Kung Fu: Master Any Estate in Three Easy Steps.