Mediation for Estate Planning and Estates – Who, what, when, where, why and how?Kathryn Sainty, QC, Sainty LawPresentation to the Abbotsford Estate Planning Council– January 18, 2017

Mediation for Estate Planning and Estates – Who, what, when, where, why and how?

Mediation for Estate Planning and Estates – Who, what, when, where, why and how?

What is Mediation?

• Mediation is a voluntary and confidential discussion between parties with the aim of resolving a conflict between them

• Mediation is an informal, flexible process directed by mediators who are neutral and work for the common good of all the parties involved

Mediation for Estate Planning and Estates – Who, what, when, where, why and how?

What is Mediation?

• Mediation is not therapy• A mediator does not represent anyone, has no allegiance

to any party, gives no advice, makes no decisions and has no conflicts of interest• A mediator’s role is to encourage the parties to reach an

agreement• Mediation is confidential. The parties agree not to

divulge or voluntarily testify about anything said during the course of the mediation

Mediation for Estate Planning and Estates – Who, what, when, where, why and how?

Mediation in the Estate Planning Context

• Estate Planning mediation is the mediation of disputes arising in the context of aging

• Estate Planning mediation tends to be multipartite and involve family and intergenerational dynamics.

• It requires a particular degree of sensitivity and skill on the part of mediators

Mediation for Estate Planning and Estates – Who, what, when, where, why and how?

Mediation in the Estate Planning Context

• Respect of “planner’s” wishes and dignity

• Everyone has equal opportunity to share thoughts and concerns and desires

• Allows for skillful resolution of emotionally challenging issues

• Is a safe place for siblings and family members to express differing opinions

• Provides an opportunity to learn about legal, financial, and other options from outside professionals, as needed

Mediation for Estate Planning and Estates – Who, what, when, where, why and how?

Mediation of Disputes over Estates

• Estate mediation is the mediation of disputes arising in the context of death

• Estate disputes combine intimate family issues, financial concerns and legal principles.

• Estate mediation also can be multipartite and involve family and intergenerational dynamics

• Third parties (e.g., charities) may also be involved

• Requires a particular degree of sensitivity and skill on the part of mediators

• Allows for skillful resolution of emotionally challenging issues

Mediation for Estate Planning and Estates – Who, what, when, where, why and how?

Mediation of Disputes over Estates

• A cooperative, compassionate process• Everyone has equal opportunity to

share thoughts and concerns and desires

• Respect of will-maker’s/ deceased’s wishes

• Mediation allows for effective communication between parties that never happened during the deceased’s lifetime and needs to occur if amicable settlement is possible

• There is a high correlation between families that have issues after a death event with those who haven’t done any pre-death planning or, just as important, haven’t communicated key estate wishes to children/family members

• Recognition• Empowerment• Speed• Economy• Confidentiality• Goal oriented• Creative• Narrow issues• Quality of settlement (control)• Allows for “reality checks”• Avoids “bad” outcomes• Preserves relationships among the

parties involved• Higher compliance with settlements

Mediation for Estate Planning and Estates – Who, what, when, where, why and how?

• Estate Planning:• Retirement plan• Housing and living arrangements• Health care (at home, in the

hospital, or in continuing care and long-term care communities)

• Succession plan for business• Trust disputes, guardianships for

property or for personal care• Elder law issues and elder abuse• Capacity issues

• Estates:• Will challenges• Issues on intestacy• Disputes over personal property• Competency (to make will)• Allegations of undue influence• Dependent support claims• Contested passings of account

(including personal representative's compensation)

• Asset management under a power of attorney

What can be mediated?

Mediation for Estate Planning and Estates – Who, what, when, where, why and how?

• The Planner• His/her:• children• spouse (first, second, third…)• siblings

• Caregivers• Friends• Support persons (clergy?)• Other third parties • Care facility staff• Business partners• ???

• Counsel

Who (Estate Plan)?

Mediation for Estate Planning and Estates – Who, what, when, where, why and how?

• An Administrator• A deceased’s:• children• spouse (first, second,

third…)• siblings

• Other beneficiaries (e.g., charities)• Key “influencers”• Counsel

Who (Estates)?

Mediation for Families and Estates – Who, what, when, where, why and how?

The services of a mediator should be considered if any of the following scenarios are present:

• mentally or physically challenged child • economic disparity among heirs • divorce and multiple marriages • inherited or other separate property • a child who is caring for a parent • will-maker is either very indecisive or dogmatic • entrepreneurial or closely held business• large estate is involved, • complex family circumstances (such as 'blended' family structures)

When?

Mediation for Estate Planning and Estates – Who, what, when, where, why and how?

• Mediation is not simply an alternative to litigation, a “last resort” forum with or without lawyers

• Mediation can take place at any time• Mediation is just as effective (and often more effective) at the beginning

of the decision-making process – when families are fact finding, struggling with options and discovering feelings about their parents or adult children that are emotional and make clear thinking difficult

When?

Mediation for Families and Estates – Who, what, when, where, why and how?

• Logistics are important in mediation• Parties’ comfort (in the process and their personal comfort) is

of paramount importance• Options:• Neutral facility• Home (of the planner/deceased; of one of the other parties)• Professional's office (clergy, counsel,

counsellor, social worker, etc.)• Business premises

Where?

Mediation for Families and Estates – Who, what, when, where, why and how?

How?

• By consent of the parties• Notice to Mediate• Court Order

• Contact:• Mediator• Mediate BC• BCICAC

Mediation for Estate Planning and Estates – Who, what, when, where, why and how?

Other things to consider• Is this case appropriate for mediation?• Who needs to be invited to participate? Is everyone

included? Will everyone need to attend every session? If not, why not? If so, who decides?

• Should referrals be made? If so, to whom? Why?• Are there particular screening requirements needed? If so,

who does the screening?• Autonomy and competence of all participants?• Does the mediator have the skill-set to undertake this

mediation?

Mediation for Estate Planning and Estates – Who, what, when, where, why and how?

Other things to consider• Are there issues with impartiality/neutrality of the

mediator?• Are there questions/considerations that arise as a result of

abuse, alleged abuse, safety issues, neglect and self-neglect? • Are there any conflicts of interest?• How to ensure (and are there any limits to) confidentiality?• Are there any capacity concerns? What must be done to

ensure all voices are heard? Does an advocate need to participate? Who decides? What is their role?

Mediation for Estate Planning and Estates – Who, what, when, where, why and how?

Mediation for Estate Planning and Estates – Who, what, when, where, why and how?

Kathryn Sainty, QC, Sainty LawPresentation to Abbotsford Estate Planning Council – January 18, 2017