Toronto Estate Law Blog : Toronto Estate Lawyer : Hull & Hull Law Firm : Trust Mediation and Succession Planning : Serving Ontario, Ottawa, Mississauga, Hamilton

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Mediation is a large part of an estates practice, particularly in Toronto where it is mandatory. It is a critical process that often leads to faster and more cost-effective resolutions than trial litigation.   Finding the right mediator, who is also available to mediate when you need it to happen, is not always easy. Different cases call for different types of mediators. 

The particular dynamic of a dispute may, on occasion, make it advisable for counsel to seek a sitting judge as a mediator.  This approach is somewhat unconventional as it is almost always the case that lawyers, certified mediators or retired judges are selected to mediate a case.

In an interesting article by The Honourable Warren K. Winkler in the Winter 2010 issue of The Advocates' Journal , His Honour touches on the movement towards mediation in the civil justice system over the years, the arguments for and against judicial mediation, and the difficulty of judicial mediation being both a reality and fantasy in Ontario (this is a good read). On this last point, His Honour notes the fact that while judicial mediation exists, its availability is complicated by several things, including lack of court facilities to hold mediations, difficulties with timetabling and, most importantly, judges who do not want to work in the “too unfamiliar and informal” mediation environment.

Winkler J.’s view is that judicial mediation should be expanded to meet the pressing demand within the civil justice system, and the court system ought to adapt to allow it.  I, for one, would be very pleased to see this happen.

Have a good day,

Natalia R. Angelini - Click here for more information on Natalia Angelini.

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The Globe and Mail recently featured a new book, Bargaining with the Devil: When to Negotiate, When to Fight, by Robert Mnookin. In reading the article, I was impressed with how relevant the discussion was to estates matters.

In the article, Mnookin says that some of the most difficult conflicts to negotiate are those where the adversary is seen as being untrustworthy - an adversary "who's either harmed you in the past or is out to harm you in the future and whom you may even think is evil." Matters in the estates context often pose these types of challenges. Disputes amongst family members often arise out of a lack of trust, and in many cases, the other family member is labelled as "evil". 

Further, in the estates context, emotions often run high. This, says Mnookin, is usually an impediment to a negotiated settlement. "Strong emotions can get in the way of clear thinking."

Mnookin also points to another impediment to negotiated resolutions that we see in many estates matters. In many cases, parties to a negotiation are wary of settlement because it is believed that what is good for their adversary is bad for them. Mnookin refers to this as "zero-sum thinking".

Taken a step further, even if a settlement is good for a party, it is often not acceptable to that party because the party does not want to let the other side off easily: the party wants to punish the adversary for what they have done, or for what it is believed that they did.

Mnookin concludes by noting that in many cases, emotion wants to fight, even though this may not be in your best long-term interests. However, there are other cases where the fight really is the better alternative.

Thank you for reading.

Paul Trudelle

Paul E. Trudelle - Click here for more information on Paul Trudelle.

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Listen to Managing Estate Issues

This week on Hull on Estates, Ian Hull and Suzana Popovic-Montag talk about how to manage an estate dispute as opposed to preventing it. They use an example of a joint account shared between 'Mom' and 'daughter' to examine the best way to approach posthumous problems and misunderstandings.

Feel free to send us an email at hull.lawyers@gmail.com or leave us a comment on the Hull on Estates blog.

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Mediation continues to be all the rage in Estate litigation in Toronto matters, and is increasingly common outside Toronto as well.  (For background on Mediation in general, see here.)

Mediation no doubt sounds very conciliatory and cooperative, and in an ideal world it might be.  However, estate litigation and the ideal world are not a commonly-encountered pair.  In the real world, mediation can be extremely stressful. It is not uncommon for mediations to drag on into the wee hours as the increasingly tired lawyers and parties draft away at minutes of settlement, always with the possibility that the deal may fall apart at anytime.

Some lawyers have begun to have lengthy pre-mediation meetings with clients to prepare them for mediation ahead of time so they are not taken by surprise by the stress and late nights that may occur. Even more intriguing is the possibility of mediating an estate matter before death - see our own website and a similar website in California.

However, no matter how stressful and difficult a mediation can be, it is still a far cry from the stress and ups and downs of trial – no doubt  a main reason so many mediations result in settlement.

Thanks for reading.

Sean Graham