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Monday, September 20, 2010

Can we settle an estate dispute without suing?

Having spent several years fighting estate battles for my clients, I can attest to the fact that estate litigation is expensive, lengthy, stressful and exhausting for the clients (and no piece of cake for me either). Money and time are not the only things that take a hit; family relationships are often damaged by the very emotional fighting. Litigation is adversarial by its very nature and it isn't designed to let the parties stay friendly. Those who are looking for a better way to handle an estate dispute, take heart, as there are options, known as alternate dispute resolution (ADR).

1.  Traditional negotiation can be effective. Each party is represented by a lawyer who speaks for him or her. There is no judge involved, and no neutral third party. Negotiation gets harder as the number of parties increases, though it is still much faster and cheaper than fighting it out in court.

2.  Mediation involves a neutral third party who facilitates a discussion among all of the parties. This is an informal method of discussing the issues and reaching a mutual agreement. It helps to preserve family relationships if everyone is working together. Lawyers are often involved as advisors but that is up to the group to agree on. The third-party mediator does not make ruling; his or her job is to defuse tense moments and keep the discussion on track. It's important that everyone with a stake in the mediation buys into the concept and gives it an honest try.

3.  Arbitration is more formal than mediation but less formal than going to court. The role of the arbitrator is different than that of a mediator, in that the arbitrator makes a ruling on an issue after hearing arguments and evidence. The arbitrator is usually an expert in Wills and Estates, whereas a mediator need not be an expert in the subject matter. The parties agree ahead of time that they will abide by the arbitrator's decision, but if the arbitrator makes a mistake or one of the parties was deceitful during the process, the ruling can be reviewed by the court.

4.  There is a variation on mediation and arbitration that combines the two. Essentially, there is a mediator who facilitates a discussion in the usual way. If it becomes apparent that the parties are never going to be able to reach a resolution on their own, the mediator changes roles and becomes an arbitrator. This gives him or her the ability to make a ruling.

5.  Collaborative law is used a lot with family law matters like child custody, but it can also work well for estate disputes. It's much like a group negotiation. Lawyers who are "collaborative" have taken special training, and agree to a special arrangements whereby the lawyers and the clients agree not to go to court. If negotiations break down and someone wants to proceed to court, each party must get a new lawyer and start over. Sometimes knowing that the traditional fall-back of going to court is not available can motivate people to settle matters. Not all lawyers practice collaborative law.

6.  All of the above suggestions are aimed at people who have not yet begun a dispute in court against an estate. However, even if your papers are filed and you're waiting for a court date, you can still try ADR ideas. If none of the above suggestions seem likely, you may be able to access judge-assisted ADR. This comes in many forms, include pre-trial conferences with the judge, case management conferences, mini-trials and getting non-binding decisions from the judge before trial. There are plenty of rules and regulations about how to get and use judicial ADR, including the fact that the judge will always have some kind of initial meeting to decide whether he or she believes the case to be a good candidate for alternate dispute resolution.

To find out more about these options, talk to your lawyer or court personnel. Or, search online for "alternate dispute resolution", "judicial dispute resolution" or "collaborative law" together with your province or territory. Also see my earlier post here about collaborative law.

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