For those practicing estate litigation in Ottawa, Rule 75.1 of the Rules of Civil Procedure requires that the parties attend mediation at some stage of the litigation.
Estate litigation matters to which Rule 75.1 applies include contested Passing of Accounts, will challenges, support claims under the Succession Law Reform Act, guardianship applications or other matters under the Substitute Decisions Act, property division upon the death of a spouse under the Family Law Act and matters under other less common statutes such as the Absentee Act, the Charities Accounting Act, the Estates Act, the Trustee Act and the Variation of Trusts Act.
The details of when and how and who will conduct the mediation are not spelled out in the rules. Once an application has been issued to which Rule 75.1 applies, the applicant is required to bring a motion for directions regarding the conduct of the mediation.
The motion must be scheduled and the notice of motion must be served within 30 days after the last day for filing a notice of appearance to the application.
The common practice is to schedule the motion for directions to take place on the initial return date of the application.
It is also common to combine the motion for directions regarding the mediation with a motion for other directions regarding the conduct of the litigation and the issues to be determined.
Ideally, before the first appearance date or return date of the motion for directions, counsel will agree upon who is going to conduct the mediation, the issues to be mediated and the timing of the mediation. The proposed mediator should be contacted and his or her availability should be confirmed before their name is inserted into the draft order for directions. Counsel should also discuss any disclosure or discovery that should be obtained prior to the mediation taking place and how the litigation will proceed in the event that mediation is not successful. In this way a comprehensive consent order can be presented to the judge for signing at the first appearance or motion return date.
If the parties are unable to agree upon the terms of a consent order, the court will hear argument and then make an order with the necessary directions.
Getting to Yes
One of the most important keys to a successful mediation is preparation.
There are two forms of preparation that should take place and they are equally important.
The first important preparation to be completed is the preparation of the case.
A common error is to schedule mediation too early in the process before disclosure is sufficiently complete or the evidence has been sufficiently canvassed and assembled. It is difficult for the parties to weigh the risks associated with proceeding to trial if they do not know what information or evidence that will be before a court.
While it is not necessary or cost effective to insist that a case be essentially ‘trial ready” before the mediation can take place, the parties must have sufficient information to make informed decisions regarding settlement.
An understanding of the legal principles that apply to the case is essential in order for a lawyer to advise his or her client whether the information provided is sufficient to proceed. The lawyer must know what elements must be proven to establish or defend against the claims being made and which party bears the onus of proof. Gaining familiarity with the relevant statutes and current case law should be part of every lawyer’s preparation for mediation.
The other equally important form of preparation that should take place prior to mediation is the preparation of the client and the setting of reasonable client expectations.
Clients need to understand that mediation is a form of negotiation – not adjudication. It is not helpful to bring an overly adversarial mindset to the mediation table if the goal is to reach negotiated settlement.
While most clients have a very good understanding of their “best case” should they win at trial, many do not have the same level of understanding of their potential “worst case”. Time should be spent, prior to the mediation, explaining the strengths of the other side’s case to the client and discussing the risks associated with pursuing litigation.
If the necessary information and disclosure has been provided and both sides come to the mediation with a clear understanding of the strengths and weaknesses of their case and a willingness to compromise, the result will be a settlement and a successful mediation.