The beauty of mediation lies in its confidentiality and flexibility. With the assistance of a skilled mediator, the parties are free to speak to each other directly and to frankly express their concerns and interests without fear of prejudicing the litigation should the matter not settle. That is to be encouraged. Empathy and apology can and often does play a powerful role. Seemingly intractable positions become less so. The legal issues framed in the pleadings frequently do not reflect the real interests or concerns motivating the litigants. Creative remedies not available to the court can be forged to bridge differences. Important relationships can be repaired.

Matsqui First Nation v. Canada (Attorney General), 2015 BCSC 1409

Table of Contents

• 1.0 Introduction to Estate and Elder Disputes
• 2.0 The Nature of Estate and Elder Disputes
• 3.0 The Impact of Loss and Grief
• 4.0 The Impact of Trauma
• 5.0 Overview of Alternative Dispute Resolution
• 5.1 Mediation
• 5.2 Arbitration
• 5.3 Med-Arb
• 5.4 ADR Designations & Rosters
• 5.5 ADR Training
• 6.0 Benefits of Mediation
• 7.0 When Mediation May Not Be Appropriate
• 8.0 Estate & Elder Mediation Ethics
• 8.1 Mediator Ethics
• 8.2 Counsel Ethics
• 9.0 Timing of the Mediation
• 10.0 Initiating Mediation
• 11.0 Choosing the Mediator
• 11.1 Mediation Styles
• 11.2 Factual Considerations
• 11.3 Expertise Considerations
• 12.0 Roles at a Mediation
• 12.1 The Mediator
• 12.2 The Parties
• 12.3 Counsel
• 12.4 The Personal Representative
• 13.0 The Mediation Process
• 13.1 Agreement to Mediate
• 13.2 Pre-Mediation Discussion between the Parties
• 13.3 The Mediation Brief
• 13.4 Client Preparation
• 13.5 Mediation Format
• 14.0 When Mediation Fails
• 15.0 Conclusion
• 16.0 Precedents

1.0 Introduction to Estate and Elder Disputes

Estate disputes involve conflicts regarding wills, estates and, trusts. Estate litigation includes, but is not limited to:

• the interpretation of wills and trusts;
• will challenges;
• wills and trusts variation;
• power of attorney disputes;
• removal of executors, trustees and attorneys;
• breach of fiduciary duty claims;
• executor and trustee accounting;
• resulting and constructive trust disputes;
• unjust enrichment claims; and
• and estate solicitor’s negligence.

Elder disputes are conflicts that arise in the context of aging. One or more of the parties will be an older adult or the issues in dispute will be ones of particular significance to older adults, and includes, but is not limited to:

• Estate planning, administration and succession planning;
• Powers of attorney (who will make decisions and how);
• Advance directives and end-of-life care;
• Adult guardianship and alternatives to adult guardianship options including increased support services;
• Assisted living or long-term care;
• Types of medical care and alternative health care options;
• Private Care Agreements;
• Caregiver issues (who, when, where, how much, respite care, etc.);
• Lifestyle choices (i.e. subsequent marriage, smoking, alcohol use, drug use, sexuality, social activities, vacations);
• Independence and self-determination vs. safety issues;
• Mental illness or dementia; and
• Abuse, neglect or self-neglect.

The issues and parties are often intrafamilial, but can involve third parties such as housing providers. Elder law issues, like many estate law issues, tend to be multipartite and involve family and intergenerational dynamics.

Estate and elder disputes are governed and informed by both legislative and common law principles. Applicable legislation in British Columbia includes, but is not limited to:

• the Wills, Estates and Succession Act, S.B.C. 2009, c. 13 (“WESA”), which governs the creation of testamentary instruments and the administration of estates;
• the Trustee Act, R.S.B.C. 1996, c. 464, which extends to persons entitled or acting under a deed, will, codicil, or other instrument irrespective of the date of its execution;
• the Patients Property Act, R.S.B.C. 1996, c. 349, which provides for the appointment of a committee of property and the person where an adult is incapable of managing their own affairs;
• the Adult Guardianship Act, R.S.B.C. 1996, c. 6, which provides assistance for vulnerable adults who are unable to seek support on their own and provides decision-making assistance to incapable adults where no advance planning documents are in place; and
• the Supreme Court Civil Rules, B.C. Reg. 168/2009 (Part 25 in particular), which are specifically applicable to estates.

2.0 The Nature of Estate and Elder Disputes

Canada's population is aging. The population of seniors is projected to increase and reach close to one-fourth of the overall population by 2040. Estimates of expected Canadian inheritances over the next decade are as high as $1 trillion. As a result of an aging population, a large transfer of wealth, and an increase in blended families, estate and elder disputes are increasing.

The individuals involved in estate and elder disputes are often closely related, either through blood or marriage. Given the inherent complexity of personal and family relationships, the parties to an estate or elder dispute may be motivated by a variety of factors, including familial, financial, ethical and emotional needs. As with most litigation, but even more so in estate and elder law litigation, the “real” dispute may have nothing to do with the legal issues involved.

Finally, factors such as ageism, potential frailty, cognitive concerns, and cultural norms may serve to exclude an older affected party from decision-making in an estate or elder mediation. Best practice is supporting the self-determination of the older person in the mediation process to the greatest extent possible. Self-determination may accomplished by the older person’s physical presence, with support if required, and/or by the inclusion of the older person’s expressed wishes and long-standing values when mediation discussion, action or decisions may impact the older person.

3.0 The Impact of Loss and Grief

Sorrow makes us all children again — destroys all differences of intellect — The wisest know nothing.

Ralph Waldo Emerson

Mediators and lawyers serve families whose issues are often complicated and whose dysfunction prevents them from being able to resolve their problems without assistance. Loss and grief are present in most disputes and in elder and estate cases are often at the very heart of the conflict. Grief is an emotional experience in response to significant loss of any kind. In elder and estate mediation, loss is often many-layered. Unresolved grief may be a central reason why parties cannot resolve disputes on their own.

Many people are aware of Elisabeth Kübler-Ross’s stages of grief: denial, anger, bargaining, depression, and acceptance. Despite this established model, those of us who have been in estate and elder practice for some time (and as living humans!), will recognize that grief often does not proceed predictably and can be highly individualized. Sometimes loss triggers debilitating grief from which the bereaved person never recovers, but it can also give rise to relief with no adverse emotional effects. As humans we may have a range of emotional responses associated with grief, including sadness, anger, contempt, and fear.

Multiple losses - of the loved one, other important relationships, status, youth, money and property, one’s sense of identity - can increase the intensity, depth, and length of grief. People can veer into complicated grief, which occurs when sadness lingers beyond its positive effect of enabling us to be introspective and attract others to help. Unresolved conflicts often exacerbate the intensity and the intractability of angry feelings, overshadowing other emotions of grief, particularly sadness, and inhibiting the capacity to grieve fully and heal.

Estate and elder mediators and lawyers need to be prepared to work with parties in the midst of loss and grief. Developing skills to recognize and address the challenges of grief-related emotions and cultivating the skills of empathy, compassion, and patience will help us better serve families suffering from loss and grief and hopefully enhance our ability to resolve their disputes.

4.0 The Impact of Trauma

Sometimes, as a result of traumatic experiences, people become immobilized in conflict. These impasses can occur at three levels: the external/social level, the interactional level, and the intrapsychic or internal level.

At the external level, the dispute may be fueled by significant others (extended family, friends, new partners, the litigation process, legal and mental health professionals, community members) who have formed coalitions or alliances with the various disputing parties and legitimized their claims. Often referred to as “tribal warfare,” the external social network serves to confirm the polarized, highly distorted view of other parties to a dispute.

At the interactional level, the dispute can be a continuation of a conflictual relationship or family history. Specifically, the dispute may be a continuation of family dysfunction or the response to the loss of someone where the relationship was conflictual or ambivalent.  Traumatized individuals can create a binary reconstruction of reality into roles of victims and villains. External allies can reinforce these perceptions and further erode trust.

At the intrapsychic level, disputes may serve to manage intolerable feelings engendered by trauma such as shame, grief, helplessness and guilt in psychologically vulnerable parties. People have different psychological vulnerabilities to loss. High risk individuals are unwilling or unable to process loss and are predisposed to project onto others the blame for any disputes which may arise.  Their elevated response to conflict may be linked to traumatic losses in childhood, early deprivation or traumatic experiences in their family of origin, or a genetic predisposition.

The predominant characteristic of people with intrapsychic problems is their refusal to experience and accept their own pain.  Instead, they externalize it as anger and direct it toward others. The inability to understand their own contribution to conflict often leads them to conclude that the fault must lie outside themselves. Further, these individual’s limited capacity to empathize with others makes it very difficult for them to accept responsibility for any role they may have in a dispute. 

The intensity and longevity of their feelings are other indicators of a high level of vulnerability.  Vulnerable people may be able to avoid the pain of loss only by storing up anger, often for years after the loss or even indefinitely.  When assessing intrapsychic vulnerability, Garrity and Baris refer to a “Severity of Vulnerability Scale,” where each of the following criteria are assessed on a range from mild traits to ingrained personality structure:

• Will not experience pain, will not hurt, externalizes pain;
• Cannot accept their role in a dispute - no capacity for insight;
• Little awareness of or empathy for impact conflict has on other participants;
• Degree of devaluing other parties;
• Level of intensity;
• Insatiable quality - nothing seems to resolve the conflict;
• Time frame of conflict - how long at this level of intensity;
• Pervasiveness across other social, emotional and occupational relationships; and
• Active intensification of the conflict through recruitment of others.

Vulnerability to feelings of shame is a core psychological dynamic of high conflict disputes. Janet R. Johnston refers to a continuum of narcissistic vulnerability or the regulation of self esteem and the injury to self-esteem caused by disputes. At the mildest level of narcissistic vulnerability is a feeling of personal inadequacy naturally caused by loss or conflicts. The next level is the level of extreme self-righteousness, superiority, and feelings of entitlement. Such persons refuse to accept responsibility for any problems and blame others for all difficulties. At the extreme level of narcissistic vulnerability are persons who experience other parties as evil, feel exploited, and are paranoid.

If a client is presenting as unduly high conflict or with significant intrapsychic vulnerability, arbitration or traditional litigation are likely the most appropriate processes to resolve disputes.

5.0 Overview of Alternative Dispute Resolution

Only a small percentage of estate and elder disputes ultimately require litigation. Short of court intervention, these matters can be, and often are, resolved through negotiated settlement or alternative dispute resolution, such as mediation.

Whether by negotiation between the parties directly, between counsel or via formal mediation, resolution without having to go to trial not only spares the time and expense of litigation, but allows the parties to avoid the emotionally difficult and public ordeal of engaging the court system in the resolution of a contentious personal matter. Creative and potentially tax-efficient solutions can be crafted that would be beyond the purview of a judge. Even if a trial decision is rendered, there is the possibility of an appeal by one side or the other, which will mean further costs and delay in receiving finality to the matter.

Alternative Dispute Resolution (“ADR”) involves a range of techniques outside of (or used at the same time as) the traditional litigation process. ADR procedures are either mandated or chosen by parties in conflict to resolve their dispute in a less adversarial or confrontational way. These procedures are usually voluntary and are confidential.

ADR is an umbrella term for many ways to resolve a dispute. The most common and well-known ADR processes are mediation and arbitration. However, there are other ADR processes that can be considered to resolve estate and elder disputes:

• Negotiation: As part of the ADR process or not, negotiation settles the majority of disputes before a matter proceeds to trial. Sometimes contracts or agreements require the parties to make good-faith attempts to negotiate a settlement before litigating.
• Group facilitation: Where an impartial facilitator leads and manages discussions with a group of people on issues that impact them. The group facilitator does not express an opinion but supports and helps group members engage in constructive dialogue to help problem solve, manage conflict, and make decisions. Group facilitation is most often used in private and public-sector workplaces and for corporate boards but is a potential dispute resolution option for a multi-party estate or elder dispute.
• Collaborative law: Is a voluntary process in which each party retains a specially trained lawyer to collaborate in joint meetings to negotiate resolution of the issues in dispute without threat of litigation. Collaborative law is often used in family law disputes in Canada, although there is growing interest in expanding collaborative law processes to help resolve estate and elder disputes.

5.1 Mediation

The term “mediate” is derived from the Latin word “mediare”, which means to be in the middle. Mediation is a process in which the parties agree to an impartial facilitator (a neutral third party) to assist them to reach a voluntary settlement of the issues in dispute. Unlike arbitration, the mediator does not render any decisions/awards, and the parties may terminate the process at any time. If a voluntary settlement is reached, it only becomes binding on the parties upon signing a formal settlement agreement, often in the form of Minutes of Settlement or a Consent Order.

Two central components of most mediations are that it is consensual and “closed.” The mediator cannot impose a decision upon the parties involved or force any resolution. With respect to it being “closed” or “without prejudice,” it means the parties are able to disclose and review all relevant information and to discuss various offers or proposals for resolution, without the worry that it may be used against them later in litigation if the dispute cannot be resolved in the mediation.

5.2 Arbitration

Arbitration involves adjudication by a neutral third party. Most arbitration proceedings are designed to be binding. Arbitration will, in most instances, take place due to an agreement between the parties, either under a pre-existing contract or based on specific terms of an arbitration agreement, after a dispute has arisen. Unless otherwise agreed, the terms of the applicable arbitration legislation will govern (such as BC’s Arbitration Act, S.B.C. 2020, c. 2). Arbitration is often chosen as a litigation alternative in commercial or corporate disputes, athough it may be an option to consider for an estate dispute with a primarily financial focus.

5.3 Med-Arb

Med-Arb is a hybrid approach that combines the benefits of both mediation and arbitration. The parties first attempt to reach an agreement with the help of a mediator. If that does not produce results, or if one or more issues remain unresolved, the parties may move on to arbitration. If the mediator is also qualified as an arbitrator, the same facilitator can potentially fulfill both roles and make a binding decision quickly since there will be familiarity with the facts of the dispute.

5.4 ADR Designations & Rosters

Mediation is largely an unregulated field in Canada and, therefore, a universal standard of training or qualification for mediators does not exist.

The ADR Institute of Canada (“ADRIC”) is a well established professional organization for ADR professionals in Canada. There are several designations one can apply for through ADRIC, including: Chartered Mediator (C. Med.); Chartered Arbitrator (C. Arb.); Qualified Mediator (Q. Med); and Qualified Arbitrator (Q. Arb). Each province also has its own chapter (e.g., the ADR Institute of British Columbia “ADRBC”).

ADRBC serves as the BC Ministry of Attorney General designated roster organization responsible for implementation and oversight of the BC Notice to Mediate Appointment Process. ADRBC’s mandate is to deliver the Ministry’s Mediation Roster Program, which includes maintaining Rosters of trained and experienced mediators who have agreed to a Code of Conduct and administering the appointment of mediators pursuant to the Notice to Mediate Regulations. In this role, ADRBC receives mediator appointment requests from parties and their legal counsel, pursuant to the Notice to Mediate Regulations, which govern the legislated appointment process. See mandatory mediation discussed below.

The Mediate BC Society has the Registered Roster Mediator (RRM) designation.

Family Mediation Canada has the Elder Mediator (Cert.EM) designation.

Elder Mediation International Network has the Certified Elder Mediator (Cert.EM) designation.

British Columbia lawyers have the option of qualifying to be Law Society of BC accredited “Family Law Mediators”, which requires:

• Sufficient knowledge, skills and experience relevant to family law to carry out the mediatory function in a fair and competent matter;
• 80 hours of approved mediation skills training, which must include, theory and skills training, drafting, how to conduct a mediation, the statutory framework of mediation, family dynamics and a minimum of 10 hours of role playing scenarios; and
• 14 hours of approved training in family violence, which must include skills for identifying, evaluating and managing family violence and issues of power dynamics in particular relation to the dispute resolution process.

5.5 ADR Training

There are a wide variety of organizations and universities which provide ADR training, including, but not limited to:

• The Continuing Legal Education Society of British Columbia;
• The Justice Institute of British Columbia;
• Mediate BC;
• ADR Institute of British Columbia;
• The Canadian Bar Association, BC Branch Professional Development;
• Osgoode/York Professional LLM in Dispute Resolution;
• Family Mediation Canada; and
• Elder Mediation International Network.

6.0 Benefits of Mediation

Mediation is a more fluid process than litigation and will allow the exploration of remedies that may not be appropriate or available within the traditional court-context. It grants the participants the flexibility to suggest possible solutions without fear that it may be used against them later in court. It is a particularly valuable dispute resolution tool when there is a need or wish for an ongoing relationship between the parties.

Some of the potential benefits of mediation, even before the adversarial process begins, are:

• Although mediation is not inexpensive, it’s usually more cost effective than litigation for willing participants;
• Faster and more expedient than court proceedings;
• Procedurally simpler than court procedures;
• More private than public court proceedings and going on the record;
• Focuses on underlying issues (often referred to as to the real versus the presenting problem) to arrive at a solution that may be acceptable to all parties;
• Often brings clarity to what has contributed to the conflict;
• Often allows for a collaborative solution, rather than a zero-sum ‘winner’ or ‘loser’,
• Less adversarial;
• More likely to preserve relationships;
• Allows parties to have legal representation or not;
• Parties meet in a setting where power imbalances can be managed;
• All parties have the ability to participate;
• More participant control over the process and details;
• Can explore multiple settlement options and arrive at a mutually beneficial solution; and
• Addresses not only legal needs, but also familial, financial, ethical and emotional needs.

Particular benefits of mediation for estate and elder disputes are:

• Given the important nature of family relationships to many people, engaging in mediation versus litigation makes it much more likely that the parties will be able to maintain relationships in the future;
• The structured communication of the mediation process may offer a way and means to potentially repair relationships;
• Often there is a common wish to arrive at timely and satisfactory resolution to a personally troubling situation; and
• It allows the parties to find a constructive solution that saves face, rather than assessing liability or laying blame on one party over another or imposing sanctions.

There is little downside to mediation if it’s an appropriate ADR process for the dispute and the parties approach it with the right attitude and preparedness. Mediation gives parties a chance to “hit the pause button” and step outside of the litigation, especially given that participants are often bereaving the loss of a loved one or otherwise embroiled in family conflict.

7.0 When Mediation May Not Be Appropriate

While many estate disputes will benefit from a mediation, mediation may not be appropriate for all situations. If there is a resistance to full and transparent disclosure of relevants facts, documents and financial information or a serious lack of trust or goodwill between the parties, mediation may not be suitable.

Where there are claims or issues of sexual harassment, violence and other forms of abuse and/or significant power imbalances between the parties, mediation may not be a suitable alternative to litigation. If a mediation does proceed where there is a history or claims of violence or abuse between the parties, having the parties attend the mediation in person may not be appropriate.

Another situation where mediation may not be suitable for an estate dispute include where parties wish to set a legal precedent and, as such, desire a formal judicial ruling on an existing point of law, or where extraordinary court relief is sought, such as a declaratory judgment (a narrow remedy which confirms or denies the existence of a right).

8.0 Estate & Elder Mediation Ethics

8.1 Mediator Ethics

There is no uniform ethical code or code of professional conduct for mediators in BC. Mediators in BC are guided by the following ethical standards, depending on the context:

1. ADR Institute of CanadaModel Code of Conduct and National Mediation Rules
ADR Mediation Rules.pdf
2. Mediate BC Standards of Conduct for Mediators
3. Family Mediation CanadaMembers Code of Professional Conduct
4. Elder Mediation International Network Code of Ethics for Elder Mediators
5. Law Society of BCCode of Professional Conduct Appendix B - Family Law Mediation, Arbitration and Parenting Coordination
6. Canadian Bar Association - Code of Professional Conduct, Chapter XXI
CBA Code of Conduct.pdf

Generally speaking, across various codes of conduct, common themes of mediator ethics are:

• mediator competence;
• screening for safety and power imbalances;
• ensuring voluntariness of all participants;
• awareness of the possible impacts of culture and diversity on the process;
• maintaining impartiality and neutrality;
• avoiding conflicts of interest;
• preserving confidentiality;
• not giving legal advice (if the mediator is a lawyer); and
• ensuring fairness and/or guarding against unconscionability.

Particularly important ethical considerations in elder and guardianship mediation include:

• promoting self-determination by ensuring the ability of all affected parties to participate in the process to the extent possible; and
• risk management in terms of abuse, neglect and self neglect.

Older adults are legally presumed to be capable of making decisions about their finances and/or person. However, due to ageism, cultural norms, and stereotypes, as adults get older, professionals may increasingly communicate with family members about the older person’s issues rather than including the older person directly.

In the arena of elder mediation in particular, the principle of self-determination is critical to ethical conduct. A competent and ethical mediator will honour the principles of autonomy and self determination of all adults, irrespective of age or infirmity. Older parties should participate in mediations involving their person or finances to the extent possible, even if they may not meet the strict legal threshold of capacity. This ethical responsibility to respect self-determination must be balanced with the ethical responsibility to not proceed with a mediation where the older adult does not understand what is at stake, may be taken advantage of, or may inadvertently bargain their rights away.

In an adult guardianship legal proceeding, the test is whether there is sufficient evidence to establish that a person is incapable according to the legal test of incapacity. This is a legal question. In a guardianship mediation, it is generally accepted that the question of capacity itself cannot be mediated.

The issue of whether or not there is abuse as a matter of fact may be impossible to effectively mediate. Given the prevalence of elder abuse and the fact that some older adults are particularly vulnerable to abuse or mistreatment, mediators working with older adults must be well informed about elder abuse and able to ensure that an older adult who may be a victim of abuse is safe and will not be disadvantaged by participating in mediation, including by refraining to mediate or terminating a mediation where necessary.

Note, unlike the duty to report suspected or actual abuse or neglect of a child pursuant to the Child, Family and Community Service Act, RSBC, c. 46, s. 14 , there is no legal requirement to report adult abuse in BC. However, lawyers will want to be mindful of the s. 3.3-3 of the BC Code:

Future harm / public safety exception 3.3-3  A lawyer may disclose confidential information, but must not disclose more information than is required, when the lawyer believes on reasonable grounds that there is an imminent risk of death or serious bodily harm, and disclosure is necessary to prevent the death or harm.

8.2 Counsel Ethics

Many parties to estate and elder disputes will be older adults and some may experience cognitive difficulties related to age, such as dementia. The threshold of capacity varies depending on the context, applicable legislation and jurisdiction of the dispute. Capacity may be generally defined as the ability of an individual to understand information relevant to making a decision and appreciate the consequences of making such a decision. An older adult may not be able to make financial decisions, but they be able to make personal care decisions. Modern laws on capacity acknowledge that an individual may be temporarily incapable or alternate between capable and incapable states. A health condition, a lapse in medication, or a chronic addiction can impair capacity for a period of time.

It is important to note that, although medical evidence may inform a determination of incapability, ultimately it is a legal determination. If capacity is a real or potential issue, counsel should be mindful of Rule 3.2-9 of the BC Code which mandates that where a client has a disability that impairs their ability to make decisions, counsel must “assess whether the impairment is minor or whether it prevents the client from giving instructions or entering into binding legal relationships”.

It is very important to act quickly where capacity is or may be an issue, as capacity may be diminishing, but not yet diminished completely. This is another one of the benefits of mediation over litigation because the mediation can take place right away. If a client becomes incapable of providing instructions, counsel is required to have a litigation guardian appointed to represent the incapable person. The litigation guardian can be another individual (such as a family member who is not in conflict with the older person), a trust company, or the Public Guardian and Trustee.

The BC Code includes provisions relating to advocacy before a “tribunal”, the definition of which includes mediations. In particular, rule 2.1-2(c) provides that “a lawyer should not attempt to deceive a court or tribunal by offering false evidence or by misstating facts or law”, while rule 5.1-1 further stipulates that “where acting as an advocate, a lawyer must represent the client resolutely and honourably within the limits of the law, while treating the tribunal with candour, fairness, courtesy and respect”. In short, counsel must abide by the same rules and standards of professionalism during a mediation as they would when appearing before a court or tribunal.

9.0 Timing of the Mediation

Although voluntary mediations may be held at any stage of an estate and elder dispute, there are two periods where mediation is most commonly effective:

1. early stage mediation; and
2. post-discovery mediation.

Mediation can be an effective settlement tool at an early stage in the life of a dispute before the parties have become entrenched in their positions, before the positional nature of litigation starts affecting their views and feelings of the other side, and before they have incurred significant expenses. Mediation can be an effective way to resolve a dispute in the early stages, promote party self-determination, and preserve familial relationships. If the client wishes to explore mediation at this stage, it is good practice to caution the client that the merits of the case are not fully explored which will affect counsel’s ability to offer a meaningful risk assessment.

Alternatively, effective mediation may occur after documents have been exchanged, discoveries have been completed, and expert reports gathered. By this point, the parties normally have a good sense of the strengths and weaknesses of their case. In practice, most mediations occur well into the litigation process.

Sometimes after obtaining the relevant drafting solicitor records, financial records, and medical records, there is enough information available to allow counsel to conduct a reasonable risk assessment, and the mediation session can be conducted without having to first conduct expensive examinations-for-discovery or cross-examination. Counsel should carefully consider the timing of a mediation session in light of the particular parties and the facts of each dispute.

Once the parties have agreed to mediate, counsel should consider whether the mediation would best be conducted as one session or spread over multiple (often shorter) sessions. While the time pressure of one session can be effective, where there are complex issues that might require external advice and further consideration (such as tax or corporate issues), spreading the sessions out may be preferable. Where a client is elderly or vulnerable or does not do well under pressure, having several sessions may allow that person to be more comfortable with the ultimate decision and minimize the likelihood of settlement remorse.

10.0 Initiating Mediation

In most cases, the parties to an estate or elder dispute agree to proceed to mediation and mutually agree on a mediator. Lists of civil mediators in BC with information on their backgrounds can be found at the following websites:

• Mediate BC www.mediatebc.com; and
• ADRBC https://adrbc.com/.

If the parties do not agree to mediate or cannot agree on a mediator, then a mediation can be compelled. In British Columbia, a party to an action (a proceeding started by a Notice of Civil Claim, rather than by petition or requisition) may compel the other parties to attend mediation by serving a Notice to Mediate in Form 1 pursuant to s. 68(1) of the Law and Equity Act, R.S.B.C. 1996, c. 253 and s. 3 of the Notice to Mediate (General) Regulation.

The notice to mediate process allows any party in a range of proceedings in B.C. Supreme Court to require all other parties to the action to mediate the matters in dispute. Section 4 of the Regulation provides that, unless the court otherwise orders, only one mediation may be initiated under the Regulation in relation to any action (an “action” is a proceeding started by way of a notice of civil claim).

Subject to the court’s jurisdiction to order otherwise, parties may not serve a notice to mediate until 60 days after the filing of the first response to the notice of civil claim in the action and no later than 120 days before the date of trial (Notice to Mediate (General) Regulation, s. 5‎‎).

Once a notice to mediate is served on all parties, the parties must jointly agree on a choice of mediator. If there are fewer than four parties to the proceeding, the parties must do so within 14 days. If there are five or more parties to the proceeding, the parties have 21 days to agree on a mediator.

If the parties cannot agree on a mediator, ADRBC will appoint the mediator under the notice to mediate pursuant to ss. 7 through 10 of the Regulation.

Section 15 of the Regulation requires attendance of the parties at a mediation session, if not in person, then by way of a representative who must “have full authority to settle, or have access at the earliest practicable opportunity to a person who has … full authority to settle, on behalf of that participant”.

Where counsel has been required to compel mediation under the Regulation, they should consider why the other party will not voluntarily agree to mediate. If the refusal is driven by an erroneous risk evaluation or by a stubborn client, then mandatory mediation is a potentially useful dispute resolution tool to move the matter forward. However, if the reason for the refusal is that the other party will not listen and/or is bound and determined to go to trial, then compelling a mediation may be a waste of time and money.

11.0 Choosing the Mediator

Mediators of estate and elder disputes include lawyers, retired judges, mental health professionals, social workers, elder law experts, and community leaders. There is often a complex web of issues, interests, and motivations in estate and elder disputes. Accordingly, it’s important to retain a competent mediator who has the training, experience and skills to manage a complex environment of multiple parties, family dynamics, intergenerational issues, financial issues, health issues, and often strong emotions.

In addition to their training, experience and skills, factors to consider in selecting a mediator include:

• the mediator’s style;
• the particular facts of the dispute;
• how familiar the mediator is with the legal issues;
• whether the mediator’s personality will complement those of the parties and counsel;
• whether there are any biases that might adversely affect the parties’ view of the mediator (for example age, experience, cultural, or gender issues);
• the mediator’s availability; and
• cost.

11.1 Mediation Styles

In choosing a mediator, it is also important for counsel to understand different mediation styles, which style may be best suited to their dispute and the primary mediation style of a prospective mediator. Two central mediation styles are:

1. facilitative/interest-based; and
2. evaluative/directive.

A facilitative/interest-based mediator acts as a neutral facilitator to assist the parties to work through and resolve their own conflicts. The role of the facilitative mediator is to be in charge of and manage the process and guide the parties to a mutually agreeable resolution by setting ground rules, identifying shared interests, facilitating discussion, asking open-ended questions, clarifying underlying issues and communicating settlement offers. The mediator does not offer an expert opinion on the strengths and weaknesses of the parties' cases but may offer solutions as possible options without direction or preference.

An evaluative (or directive) mediator will evaluate the strengths and weaknesses of a case and may offer a recommendation to the parties. In practice, the mediator will evaluate the each party’s legal rights and positions, may push and/or urge one or more of the participants to a settlement, develop and/or propose the basis for settlement, and predict an outcome in court. Individual meetings between the mediator and one party at a time (called "caucuses") are often a major component of evaluative mediation. For an evaluative mediation to work well, the mediator should have substantive expertise in the practice area and the respect of the parties and/or counsel.

In both evaluative and facilitative mediation, the main focus is to reach a settlement. In some other styles of mediation, the primary focus is on improving the relationship between the parties. Narrative mediation is predicated on the theory that in order to make sense of their lives and relationships, people need to organize their experiences in story form. Specifically, parties will create a subjective story of the conflict from their perspective. Narrative mediation attempts to put aside the conflict-laden story and help the parties to rebuild a joint story. In transformative mediation, the goal of the mediation is to transform the relationships between the parties, and settlement of the specific dispute may or may not be a result of mediation. Transformative mediation emphasizes personal empowerment and the parties’ ability to transform their view of the conflict and their relationship.

In many traditional mediation courses, strong arguments are made via the materials and trainers that the interest-based or facilitative model is preferred. However, in practice, mediators use a range of different styles and utilize many techniques depending on the situation presented to them. Some or all of these approaches may be employed by the same mediator throughout the mediation process.

11.2 Factual Considerations

It’s important to think thought the unique facts of each case when assessing which mediator will be the best fit. An important factor is to analyze what is impeding settlement between the parties and what particular skill set will best assist in overcoming those impediments.

Where counsel suspects that their opposing counterpart has an unrealistic risk evaluation or that the other party may not listening to their lawyer’s advice, an evaluative mediator who will strongly express their view and whose legal opinion would be respected by the other side may be advantageous. Alternatively, where there are emotional roadblocks or possible cultural impediments to settlement, a mediator with high emotional intelligence or a cultural community leader may be preferable.

11.3 Expertise Considerations

It’s often critical to the success of a prospective mediation to choose a mediator who understands and is knowledgeable about the subject matter of the issue(s) at hand.

In the context of estate and elder disputes, the issues could include:

• will, estate, and trust challenges;
• dependant support claims;
• family law considerations;
• passing of account applications by fiduciaries including attorney, guardian, trustee and estate trustee;
• power of attorney litigation;
• trust variations/interpretations,
• rectification/variation/interpretation applications,
• commiteeships for property and/or for personal care;
• caregiving issues;
• elder abuse;
• capacity proceedings;
• end-of-life disputes,
• trustee and fiduciary litigation;
• business considerations, including family enterprises, corporate documents, shareholder agreements, complicated valuations, and financial statements; and
• tax considerations and consequences arising in the estate.

A mediator who is also a subject matter expert will often be the most effective in moving the parties (and counsel) forward in a timely and efficient manner.

12.0 Roles at a Mediation

12.1 The Mediator

The mediator, a neutral facilitator, sets the tone and manages the process (versus the content) by helping the parties to communicate, clarify facts, determine possible options for settlement and hopefully arrive at agreed settlement terms.

The mediator directs and orchestrates the discussion between the parties and helps to lead the parties towards forward-thinking and potential settlement. The style of the mediator is multi-faceted and varies from person to person, but regardless, they are there to control the process, but not make any decisions for the parties or advise them of their legal rights. While many mediators are also lawyers, it is not their role to advise one party to the exclusion of the other or to advocate for the parties.

The mediator may also be charged with drafting minutes of settlement or a consent order that accurately reflects the terms of the parties’ agreement. It is not the responsibility of the mediator to ensure that each party adheres to the agreement that is reached during mediation. If enforcement becomes an issue, then the parties will need to seek legal advice.

12.2 The Parties

The mediation process is voluntary. It will only work if the parties genuinely want to resolve the conflict through this process. If a mediation is going to be successful in reaching settlement, all parties to the mediation must be properly prepared, willing to participate fully and in good faith and have the authority to settle.

12.3 Counsel

The role of counsel in any mediation is to advocate for the best resolution for their client, if possible. This requires professionalism, preparation, negotiation skills, emotional intelligence, and effective advocacy.

Counsel assist parties to prepare for the mediation, with advocacy at the mediation and to facilitate documenting any settlement. Counsel can be particularly helpful where vulnerable parties are involved to balance an uneven playing field. Parties may be elderly, have capacity issues, may be the victim of undue influence, may be reliant on a caregiver, or have other challenges involving gender, race, ability, etc. It is best for counsel to discuss with their client in advance of the mediation how much participation the client wants their lawyer to have in the discussion. While some may find it advantageous for their lawyer to do most of the talking, some also might want the lawyer to remain more on the sidelines and only jump in when they feel it necessary. It depends on the circumstances and how comfortable the client is in participating themselves.

It is also important to note that if one party is represented and another party is not, that the represented party’s counsel should take this into consideration and act professionally towards the unrepresented party. There is usually a striking difference between a party who has a lawyer and those who do not, and special care should be taken, especially by the mediator, to mitigate any imbalance of power in the room.

Counsel may also encounter the need to control their client’s behavior during the mediation. As disputes can run high and emotions can get carried away, the lawyer might need to ask for breaks throughout the process. Counsel and the mediator both need to be especially attuned in these environments and ensure an environment of safety and respect between the parties.

Other roles that a party’s counsel will take with respect to the mediation will be to prepare fully, to participate in the discussion and advocate for their client, to keep the mediation information confidential, providing background information to the mediator and possibly assisting with the drafting of the final agreement, if necessary.

12.4 The Personal Representative

In a wills variation matter, the role of the personal representative is to be neutral and should be limited to advising as to the value of the estate and providing information about the estate’s assets, liabilities, and anticipated expenses.

In other estate cases, the personal representative may have more of a role. For example, if the validity of the will is challenged, the personal representative is the party charged with propounding the will and thus is an active participant in the litigation.

13.0 The Mediation Process

The format of the mediation process depends on a variety of factors, including:

• the background, training, and style of the mediator;
• the nature of the dispute and dispositions of the disputants;
• the background of the disputants and/or their advisors;
• the participants at the mediation, inclusive of specific needs;
• for example, in elder dispute mediations in particular, an older participant may require some process accomodations, such as more time to prepare for a mediation, more frequent breaks, quieter surroundings without interference or background noise, or physical accommodation.
• the availability of funds and other resources; and
• external factors such as the existence of a statute regulating the mediation.

13.1 Agreement to Mediate

Before or at the commencement of the scheduled mediation session, all parties, including the mediator, will sign a mediation agreement that covers such issues as mediator neutrality, authority to settle, confidentiality of the process, and information sharing. A mediation agreement typically contains a term that no party will subpoena or require a mediator to testify or produce notes in any other proceeding, and that the mediator or any party may terminate the mediation at any time. Fees are usually payable equally by the parties unless they agree otherwise.

Precedent Agreement to Mediate:

13.2 Pre-Mediation Discussion between the Parties

The mediator will usually confer with all counsel, usually via a pre-mediation conference call, on important procedural elements, including:

• scheduling and timing of the mediation with respect to the litigation process, particularly discoveries, document exchange, and pending trial dates;
• setting dates for the exchange of mediation briefs;
• whether any expert reports are required;
• arranging separate pre-mediation meetings or calls with each party;
• confirming who will attend in person (e.g., parties, support people, or interpreters) and raising any objections as to persons who may attend;
• confirming the availability of experts (who may be available by phone to provide advice or information on such matters as real property values or the tax consequence of a proposed resolution);
• determining if it’s a remote (often Zoom) or in person mediaton. If in person, setting the location for the mediation (for example a reporting agency office or the mediator or counsel’s offices, hopefully with access to breakout rooms); and
• any relationship or historical issues the mediator should know about (such as parties who should not be, or refuse to be, in the same room together).

Once a mediation is booked, counsel can expect a confirmation letter from the mediator confirming the mediation date, start time, and venue. It will also set out dates for the exchange of mediation briefs and arrangments for the payment of the mediator’s fees.

Pre-mediation call checklist for mediator:

13.3 The Mediation Brief

The mediation brief is counsel’s chance to tell the client’s story in a clear and persuasive manner to convince the other side why they should settle. The mediation brief also helps the mediator understand the dispute, including the each party’s view of the issues, so the mediator they can be as prepared as possible in assisting the parties to explore settlement.

When drafting a mediation brief, it is important to remember that briefs will be read by the mediator, opposing counsel, and the parties. As such, counsel should be mindful of their purpose, length, and tone. In terms of tone, inflammatory language and/or positional statements will not assist with resolution. Rather, neutral, fact-specific, and unbiased language is most effective.

A mediation brief should include the following for maximum clarity:

• a brief description of the case, including a summary of the legal and factual issues in dispute;
• consider including a chronology chart of events;
• consider including a family tree, explaining the relationships and any estrangements or difficulties that might exist so that the mediator will have an insight into the family dynamics;
• the value of the estate assets and any issues dealing with asset valuation or estate liabilities;
• an overview of the litigation process to date, including the current status (e.g., whether discoveries have been completed) and any scheduled discovery or trial dates;
• a summary of the settlement discussion and outcomes that have occurred to date, including the most recent position of the parties; and
• a list of the relevant and key documents.

The relevant documents will depend on the specific legal issues in dispute. The following documents may apply:

• The testamentary documents (wills, codicils, trusts);
• A chart or list of the estate assets and liabilities, including a list of jointly held assets and any assets that passed outside of the estate. Include any account opening documents for joint accounts and insurance designations for any insurance policies, as applicable;
• Relevant family documents, such as marriage agreements or separation agreements;
• In a will variation case, consider including the drafting solicitor’s notes;
• If capacity is an issue, include any medical records, and/or consider obtaining an expert report if possible;
• If there is a family business involved, consider an organizational chart including the business structure, shareholder interests, and a shareholder’s agreement if applicable; and
• Obtain real estate valuations in advance if real property at issue.

13.4 Client Preparation

Lawyers should adequately prepare their clients to maximize the chances of success.

An effective lawyer will review the following with their client:

• a detailed review of the Agreement to Mediate;
• the role of the mediator and the mediator’s style and fully explain what will happen during the mediation session;
• the role of the lawyers and in particular that that mediation advocacy is settlement focused and not zealous advocacy;
• potential emotional triggers and what strategies might be employed to manage those feelings during the mediation;
• a detailed analysis of the case. Counsel should ensure they fully understand the client’s goals and interests. Counsel should ensure that the client understands their case, its strengths and weaknesses, and possible outcomes. Counsel and the client together should evaluate all acceptable solutions that may serve to resolve the dispute.

A preparation model, attached:

A litigation risk assessment tool:

*Note that there may be non-parties who may have influence over whether a settlement will happen or not (other family members, spouses, etc.). Consider having them attend the mediation with your client, if permitted. If they cannot attend and your client won’t settle without conferring with them first, ensure they are available by phone.

13.5 Mediation Format

The format of mediations can vary widely, depending on the circumstances. The mediation process is a flexible one that will be tailored for a particular dispute and parties.

Estate mediations generally proceed as follows:

1. individual pre-mediation meetings with the mediator and each party and their counsel;
2. a meeting with just counsel and the mediator to determine the agenda and next steps;
3. active mediation (usually via shuttle meetings); and
4. resolution/documenting the settlement terms.

For elder mediations, the process often unfolds as follows:

1. individual pre-meetings with the mediator and each party, and their counsel if applicable, followed by an all party joint session as follows:
2. Opening statements/Storytelling by parties;
3. Issue identification;
4. Option gathering;
5. Caucusing (optional);
6. Negotiation; and
7. Agreement/Settlement.

Pre-meetings allow the mediator to establish who is a necessary party and who else should participate, screen for abuse and issues of power imbalance, inform participants about the mediation process, coach participants on how to present their issues, and determine whether or not any party has capacity issues or a disability that may require accommodation. For the parties, these meetings can be very helpful in creating comfort with the mediator and the mediation process.

If an older person (or other party) has diminished capacity or other disabilities, the pre-mediation meeting is important to determine what accommodations may need to be made to allow for maximum participation of the older or disabled person in mediation. Examples of accommodations include changing the length of session or the time of day (for example, to deal with fatigue), adapting written material so that it is easily readable, making hearing aids available for older adults who have hearing impairments, or including an older adult’s support person in the mediation session.

At the commencement of a joint session, the parties may be provided with the opportunity to speak and provide an introduction of the issues in their own words, or they may have their counsel speak on their behalf. These opening statements, or the “Storytelling” part of the mediation, are important to ensure that the parties feel that they are being heard and have the opportunity to tell their story. After the opening statements, the mediator may summarize the statements to ensure that they have correctly understood each side’s position, and they will move on from there to set the agenda.

Sticking to an agenda throughout the mediation is important so that the parties have a clear view as to what happens next, and everyone is on the same page. Particularly with mediations, some parties might get stuck on a specific issue, and having an agenda and the mediator to facilitate the discussion can get the parties back on track and save time.

There are options during mediation for the parties to separate from each other and meet with the mediator privately to discuss their positions. This might be a good option for parties that are particularly contentious or have difficulty being in the same room as the other party or parties. These private sessions with the mediator are also called caucuses and can be elected into by any party to the mediation, but are an entirely optional part of the mediation process. Within the caucus meeting, the party can discuss the progress of the mediation confidentially with the mediator and share and receive valuable information to help move the process forward. A caucus meeting is an opportunity to regroup and for the mediator to point out issues that might require further consideration.

Another tool that a mediator might use in the process is known as shuttle diplomacy. In this situation, the mediator will go between two or more different rooms where the parties are with or without counsel present. The mediator will mediate the dispute by going back and forth through the rooms with various proposals and offers for each party to consider and to relay information.

Estate and elder mediations can be complicated and may be lengthy. For counsel, it is important to keep checking in with the client to confirm they are comfortable, able, and willing to continue. While maintaining momentum is important, particularly when nearing a resolution, in some instances, scheduling a second session may be necessary if parties are feeling overwhelmed, uncertain and/or tired.

Often a mediator or counsel for one of the parties will have a draft Consent Order/Minutes of Settlement and/or Releases prepared in advance of the mediation. If the parties do reach a settlement that day, the terms can be finalized and signed before the parties leave. However, if no settlement is reached within the mediation, it is still important for the mediator to provide the minutes of the meeting and provide them to all parties so that there is record of the progress made.

Sometimes the parties may need time to regroup after a mediation before they can come to an agreement or settlement. The parties may wish to obtain independent legal advice before they sign anything if they do not have counsel present at the mediation. At this stage, the parties can schedule a subsequent mediation session to reexamine any issues that remain outstanding or they can proceed with litigation if they are not committed to the mediation process.

Before the client approves the final settlement, it’s critical that counsel explain the settlement terms in detail and canvass whether the client is certain they wish to agree to the terms. To mitigate risk and avoid complaints, counsel will want to document their review of the settlement terms with the client to minimize the likelihood that the client will have any settlement remorse and possibly say that counsel pressured them into signing.

Finally, counsel should avoid settlements that are subject to additional information or advice (for example tax advice) by fully addressing these potential issues prior to the mediation and/or having experts available on call during the mediation as required. While a conditional settlement may be preferable to no settlement in some cases, a settlement agreement is vulnerable if it turns out that a party is not happy with the advice or is looking for a way out of an agreement due to settlement remorse.

14.0 When Mediation Fails

Many, if not most, matters do settle at mediation. Here are some reasons why an estate or elder mediation might fail to succeed:

1. The parties do not understand and have not been educated about the process;
2. The parties do not realize that time and effort on their part is necessary and fail to plan for the session accordingly;
3. Mediation is not a substitute for counsel planning and analyzing the law and the case. Mediation helps counsel advocate a position – it does not replace the need for effective advocacy;
4. Mediation advocacy is overly aggressive or too passive;
5. There is a failure to provide appropriate facilities, including accommodations for older or special needs participants, breakout rooms, washrooms, food and beverages etc.;
6. There is a lack of good faith or commitment to the process by one or more participants;
7. The parties have unrealistic expectations of the mediation process;
8. One or more of the participants lack the authority to resolve the case;
9. There are overly contentious participants or counsel, or both, who fail to recognize the shortcomings of their case; or
10. Unresolved grief or loss is impeding the ability of one or more participants to move on.

Many of the above can be resolved before the mediation even begins, by properly preparing for the mediation and paying particular attention to ensuring that the setting, the parties themselves and the case have fully been considered in advance.

Be aware that even though the parties may reach an agreement at an estate mediation, there might be other factors that can hinder their agreement from being enforced, such as legislated judicial discretion, policies in place from Canada Revenue Agency and/or the approval of the Public Guardian and Trustee of BC in the case of minors or disabled parties.

As a party-driven process, and the more informed and prepared the parties are, the better and more effective a mediation will be.  Parties must be aware that they are in control of the resolution of the matter and that it will not be decided for them.  They also should be prepared to step away from positions and problem solve cooperatively with the other party or parties.  In order to do this, parties have to present their side of the issues but they also have to be willing to listen to the other party and their perspective.  And perhaps most importantly, the parties need to have reasonable expectations pertaining to the mediation and what is possible for settlement.  Counsel is helpful in this regard as they can advise their clients about what they can expect throughout the mediation process.  It is more difficult to rein in expectations when the parties are not represented, are not willing to compromise or are not able to psychologically move on.

There will be back and forth and give and take throughout mediation, and the parties need to be prepared for that process.  It has been said that a mediation is won or lost before it starts by the party who is most prepared.

15.0 Conclusion

With an aging demographic, a large inter-generational transfer of wealth and an increase in blended families, estate and elder disputes are on the rise. Due to the high expense, risks, and delays of traditional litigation, mediation will continue to be a popular process to resolve many estate and elder disputes. While it may not be the appropriate process for every situation, there are many estate and elder disputes that could benefit from mediation.

Although there is no guarantee that an estate or elder dispute will be settled at mediation, in practice many matters do settle. If the mediator, counsel and parties put in the necessary preparation and effort before and during a mediation session, the chances of a successfully mediated outcome will increase substantially.

16.0 Precedents

Nicole Garton is president and co-founder of Heritage Trust.

Recognized by Best Lawyers in Canada for trusts and estates and family law, she previously chaired the Canadian Bar Association Wills and Trusts Subsection (Vancouver).

Contact Nicole by email or phone at (778) 742-5005 x216.

Heritage Trust is a leading non-deposit taking financial institution, regulated by the BC Financial Services Authority (BCFSA), a government agency of the Province of British Columbia. Heritage Trust offers caring and professional executor, trustee, power of attorney, committee, escrow and family office services to BC resident clients.

We welcome you to contact us.