For more than two decades, mediation has been mandatory in certain jurisdictions in Ontario for most matters involving estates, trusts, and substitute decisions. Toronto, Ottawa, and the County of Essex are subject to mandatory mediation pursuant to and governed by rule 75.1 of the Rules of Civil Procedure, RRO 1990, O. Reg. 194.
The types of issues and applications subject to mandatory mediation are comprehensive. Rule 75.1.02(1)(b) provides that mandatory mediation applies to the following proceedings: (i) contested applications to pass accounts; (ii) the formal proof of a testamentary instrument, objections to issuing a certificate of appointment, the return of a certificate of appointment, claims against an estate; (iii) support of dependants under Part V of the Succession Law Reform Act; (iv) the Substitute Decisions Act, 1992; (v) the Absentees Act, the Charities Accounting Act, the Estates Act, the Trustee Act, or the Variation of Trusts Act; (vi) subrule 14.05(3) if the matters at issue relate to an estate or trust; or (vii) subsection 5(2) of the Family Law Act. Mandatory mediation is therefore required in proceedings ranging from will challenges and powers of attorney disputes to equalization of net family property upon the death of a spouse.
Mediation is a facilitated discussion between or among the parties to the legal dispute, during which time they try to resolve their legal issues. A mediator is a neutral third-party who is not connected to the dispute or to the parties. The mediator is often someone with specialized knowledge relevant to the issues. In estate litigation it may be a lawyer who practises in estate litigation, or a retired judge who would have heard similar disputes on the bench (and some parties engage in judicial mediation with a judge as the mediator). The parties will typically be separated into their own room (virtual or in person), and the mediator will shuttle back and forth between the parties in an effort to assist them in reaching a settlement. Mediation is “without-prejudice” which means that anything that is said or done during or for the mediation (including the exchange of mediation briefs), cannot be used by or held against any of the parties if the litigation continues. Mediation is an intervening step in the litigation – it can occur at any time before a dispute is judicially determined. Mediation is not about deciding a “winner” or “loser”, as all parties to the mediation must compromise in order to achieve a resolution.
Mandatory mediation is, by its very definition, a compulsory step for parties engaged in proceedings enumerated in rule 75.1. However, no one can be forced to settle. By requiring parties to engage in mediation some practitioners believe that it forces parties to consider the strengths and weaknesses of their case, and to address what resolution they could live with (rather than the resolution that they want). By removing the choice to mediate, some parties’ view is that they may as well put their best foot forward and try to settle because the time and expense of mediation will be incurred regardless of whether they want to mediate. Not all cases can settle, at mediation or otherwise. Even where one party wants to settle they may be faced with an intransigent party who refuses to be reasonable and compromise. Some cases must be litigated and determined by a judge.
That said, the benefits of a successful mediation mean that many practitioners believe it should always be canvassed regardless of whether it is subject to mandatory mediation or not. While the following is not an exhaustive list, a successful mediation will often mean that: (i) the parties can resolve their legal dispute quicker than going to court; (ii) the parties will save legal costs of the remaining steps in the litigation; (iii) the parties can craft their own resolution and not be bound to apply the law as a court must, and can include terms such as confidentiality and non-disclosure; and (iv) the parties can move on with their lives and cease engaging in acrimonious litigation.
Some parties need the input and assistance of the mediator, who is neutral and brings a fresh set of eyes to the dispute. Cases that do not settle even where offers are exchanged between counsel, may settle at mediation because the settlement discussion is facilitated, and everyone (parties and counsel) is focused on the task at hand. Where mediation is not mandatory it should be genuinely considered as an option, and whenever and wherever it is engaged, it should be approached in good faith by all parties.
