Estate Mediation Process
The purpose of this program is:
To work with all sides equally, in exchange of basic information, and to put forward a proposal of resolution which reflects the application of the law and suits the individual needs and desires of all who have an interest.
To arrange for the drafting of a legally enforceable, binding written agreement which reflects the resolution of all issues.
If all issues cannot be resolved, but only some issues can be resolved, to prepare written agreements that may resolve some of the issues.
To make it possible for any party to report to the court (if the court system is necessary to resolve issues) that attempts have been made to mediate disagreements or issues. The court system expects parties to attempt this process rather than proceeding through litigation which is generally considered to be the last resort and only to be used after mediation and negotiation approaches have been unsuccessful.
During this process you have options which would include the following:
Engaging your own individual lawyer to attend at the meetings and give you individual legal advice as the mediation process proceeds.
You may choose to attend the meetings on your own without any counsel or other assistance.
You may choose to not attend the meetings, but may send counsel in your place.
You may choose to not attend the meetings, and indicate that another party in attendance is there receiving information, and that they will report to you what has occurred. However, if you choose this option, you may still be receiving emails or information directly from the mediator as to what has occurred, or receive draft agreements or proposals for resolution from the mediator.
You may choose to not attend the meetings, which would be the same as above, but confirmed that you would be prepared to speak directly with the mediator, if the mediator decides that this is appropriate. In other words, there may be written exchanges or direct contact, by telephone, or a separate meeting with the mediator. It may be that the mediator would meet with one or more of the parties separately, especially if there is a triable problem or health difficulties that might interfere with the person being able to attend the full meeting.
Each of the parties will receive a draft mediation agreement. This would set out the funding arrangements, the total cost, who is contributing, and other general principles and practices related to mediation.
Locations and Times of the Mediation Meetings
Our main office in Mississauga, however, the mediators have been involved in professional obligations throughout the Greater Toronto Area. There are offices that can be used in Toronto, which are professional and set up for meetings. The time and location of these meetings can vary. Lunch can be served if the meeting is intended to go through lunch.
It may be that there is a series of meetings scheduled, or there may be an all-day session scheduled. Some meetings could take place with all or some of the participants, depending on the issue, by conference call.
The initial cost would be by way of each of the participants, or at least the major participants, setting out whether they are prepared to do the following:
Proceed through the mediation process by engaging a mediator
Completing a questionnaire which gives general background information to the mediator, which document may be completed by the individual, or if they have counsel, by their lawyer. This is a general information document.
Signing the Mediation Agreement. This document explains background, and particulars of the process. There is also an initial deposit required of the participants, generally in the amount of $500 per participant. The usual process is for the parties to either each contribute equally into the process, or in the alternative, an agreement be reached by all of the parties as to whom will be paying the cost of the process. This cost will probably be at least $3,000, perhaps more depending on the time and process. It is based on time spent by the mediator, who will strive to be efficient and will report time spent in accounts from time to time, and will request further deposits as may be required. The process will continue, so long as funds are made available to cover the ongoing costs.
Avoiding Court Costs
If the participants of a dispute cannot resolve the concerns by negotiation, or mediation, they must proceed through either arbitration or court proceedings. Arbitration or court proceedings are similar in that these are formal, legal, with an adjudicator making rulings. Evidence is often called by way of individuals testifying under oath or affirming to tell the truth. They may be questioned by lawyers of other parties. The cost of arbitration or litigation can be extremely great. We offer arbitration services through Arbitration Works.
The court system, including in Toronto Estate Courts, are either obligated by court rules or as a practice, requiring parties to proceed through mediation. A mediation certificate can be given to each of the parties so that they can demonstrate to the court that mediation was attempted. Early mediation is considered a good way of avoiding legal costs and to resolve concerns more efficiently and more quickly.
In the mediation system, it is not necessary that a party have a lawyer or counsel at a meeting. They may choose to attend a meeting on their own, and report to their counsel. Thus, it may be that even if party who has counsel could choose to proceed through the mediation process without their counsel in attendance, and thereby avoiding paying the additional cost of their own lawyer being at the meeting, this is up to each of the parties to decide. In mediation, there is much more individual control, and the possibility of resolution of concerns quickly and less expensively than the alternatives.
Moving to the First Step
Your first step is to contact our office and go through an initial questionnaire with one of our law clerks. You may call our office during regular business hours at 905-625-2874 or email us at email@example.com or you may complete our Contact Form which will be reviewed by one of our senior lawyers and someone will get back to you.