Episode 39 - Before You Lawyer Up: What Mediation Can Do for Your Family, with Edward Macaulay
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When families fight over wills and inheritances, the courtroom isn’t the only way forward. In this insightful episode of Your Estate Matters, hosts Nicole and Greg are joined by Edward Macaulay, an experienced estate litigation lawyer and mediator, to unpack the power of mediation in resolving complex estate and elder care disputes.
From strained family dynamics and second marriages to allegations of undue influence and executor challenges, Edward shares real-world scenarios where mediation helped avoid costly court battles. He explains the mediation process, its benefits over litigation, common pitfalls, and how preparation and mindset can make or break a resolution.
Whether you're an executor, a beneficiary, or just planning ahead, this episode is packed with practical wisdom and cautionary tales you won’t want to miss.
Nicole 00:00:02 Hello and welcome to Your Estate Matters with your hosts, my colleague Greg Brennand and myself, Nicole Garton of Heritage Trust.
Greg 00:00:09 Your Estate Matters is a podcast dedicated to everything estates, including building and preserving your legacy.
Nicole 00:00:16 If it's estate related, we'll be talking about it. We're having the conversations today that will help Canadians protect their families, their assets and their legacies tomorrow.
Greg 00:00:34 With us today on Your Estate Matters is Edward Macaulay. Edward's law practice involves wills, estates and trusts litigation, including construction and testamentary capacity. He is also involved in adult guardianship matters, including committee applications under the Patient's Property Act, in both contested and uncontested matters, Edward has appeared before the Supreme Court and the Court of Appeal of British Columbia. Edward is a lawyer with extensive experience running his own successful law firm practice. Edward F McAuley Law Corporation in Vancouver for more than two decades, is a dedicated advocate for his clients and is aware that his state disputes and personal care issues can be delicate and emotional experiences for his client. He believes that it is important to help his client take a step back, rationally assess the situation, and ultimately represent his client's interests in executing the legal path that they choose to follow.
Nicole 00:01:34 Ed, thank you so much for being with us today.
Ed 00:01:36 Thank you very much for inviting me.
Nicole 00:01:38 So tell us about you and your journey to your current role as associate counsel at North Shore Law.
Ed 00:01:44 Oh, boy. Well, I'm called to the bar now 33 years prior to that. I have two law degrees, one from the University of Victoria, but a previous one from the University of Queen's, Belfast. I lived in Northern Ireland for five years, and then we decided we were traveling at the time and ended up just doing law school. Came here. Came back to Vancouver. started my, articles and practice and fell into the world of wills, estates and trusts, litigation and about. I'm trying I'm trying to think about 1998 or so. I opened up my own practice as a sole practitioner, and that carried on until about 2023. And because of Covid, what occurred was, you know, people were working from home where you couldn't keep staff very much. And I thought to myself, you know, I live on the North Shore.
Ed 00:02:35 Everybody's zooming, everybody's on the phone. I think maybe it might be better instead of having an office right downtown. Moving to the North Shore and just seeing what things were like, because I was just sharing space in a very good group, but it still was just sharing space. And I ran into a colleague of mine who I know in the North Shore, and I said, what's rentals like? And he said, are you thinking of coming over? And I said, yes. And he said, come and talk to us. And so North Shore Law is a well known law firm on the North Shore. They've got an exceptionally good group of lawyers in all areas. And I was very pleased that they asked me to join them. So I now have I have junior lawyers that I can work with and some other people in this area. So it's very good. Sorry about that. Long winded. That's great.
Greg 00:03:18 That's a long career. It should be very. And what is the state of mediation and what role can it play in resolving estate and elder disputes?
Ed 00:03:28 Well, mediation itself is a form of dispute resolution.
Ed 00:03:33 And in when you're dealing with it in regards to wills and estates, it will depend on the nature of the dispute that parties may have. Now, not all situations result in actual litigation being commenced. There may be situations where you may need a mediator to help resolve concerns between, say, a beneficiary and an executor. Let's say I have yet to be involved in something like that, but I could see it being very worthwhile. And but generally in my mediation practice, there's been some litigation commenced. So you've got opposing parties and they, through their counsel, have determined that it might be in everyone's best interest to possibly meet and see if they can resolve it. And so mediation is a process of allowing the parties to engage on a without prejudice basis and try to resolve the issues that they may have. Sometimes it works, sometimes it doesn't.
Greg 00:04:29 So when mediation specifically for estates is involved, does the probate have to be issued at that point?
Ed 00:04:37 Not necessarily because there could be an issue as to whether or not you're dealing with a valid will and certain that that might be the action.
Ed 00:04:45 The action may be someone has challenged the validity of a document and you're involved in the litigation and after the parties have had an opportunity to go through the examinations for discovery or exchange documentation. It might be that people might think that it may be worth an effort to try and resolve this without, you know, you may still need a court order, but resolve it amongst yourselves and come up with a resolution.
Nicole 00:05:10 So let's talk about that. Why is it better for families to consider mediation over just letting a court decide?
Ed 00:05:17 Well, as I tell all the people I'm involved with in acting as a mediator, you have much more control over the process in the sense that you can come up with ideas or forms of resolution that a judge may or may not be able to do. So in my opening statements to the parties, I tell them to think outside the box and everybody laughs about that. But really, what's important is someone may have an idea and I tell people, you should ask that question. So you have the information to determine whether or not it answers your question, but also it may open up an area where people just have not considered.
Ed 00:05:54 And I learned that very, very early on in my professional career as a lawyer. When mediation was in its infancy and they were wanting lawyers to do mediation. I did a course as to, you know, how should a lawyer conduct himself and the mediator. I'm trying to think who it was. It was Gordon Sloan or something of that nature. Said that he had been in mediation where one of the parties suggested an idea, and it just opened the door, and he said, so it's never just be confined. So I think it's a it's an opportunity whether or not it works, but it's a good way of looking at things.
Greg 00:06:31 What are some of the common causes of estate and elder disputes that lead families to seek mediation?
Ed 00:06:37 Oh, well, there are any number of them in regards to estates. It's usually how a deceased parent has dealt with their estate and in a great many situations. It can be that it might be a second marriage for the for the elderly person, and they've provided something to the new spouse where the children are a little bit concerned that it might be too much.
Ed 00:07:04 Or there's also concerns that arise that someone has maybe been pressuring the elderly, elderly person to do the will that they did. And they're concerned that, you know, they always understood that, you know, it wasn't going to be an equal distribution. And then when mom or dad or whomever passes away, they suddenly realize it's not going as how they thought.
Nicole 00:07:26 What are the typical steps involved in a mediation?
Ed 00:07:29 Oh typical steps. Well, normally the mediator is contacted by counsel because generally I've yet to have anyone reach out to me to mediate something that hasn't where litigation hasn't been commenced. But counsel will at some stage will have spoken to each other, and they may consider that the matter that they're dealing with may be able to be resolved by mediation, and that usually in a lot of cases, happens after the examination for discovery and production of documents, which is a process in the court proceedings, and that allows each side to have a better view and understanding of the other side's position. And in many cases, that's when the lawyers say, you know what? We're maybe not that far off and we just need to get these people to sit to, you know, talk to somebody and have somebody else give some suggestions.
Nicole 00:08:26 And so the mediation is agreed on. And then what happens?
Ed 00:08:30 Well, the mediation is agreed on. And, you know, prior to Covid, while all the mediations were conducted in person, but now there's mediation on zoom, which is it's an interesting process because I always found that in person mediations you have a greater sense of, I don't want to say control, but importance to the people because they know that just down the hall there's the other group. Whereas on zoom you have I've heard of situations where people have, you know, been in the middle of the mediation and left for an hour or two and you think, well, no, this is a very important, you know, matter that we're dealing with. So it can be very difficult in managing people. But if it's by mediation, you set up the time and structure. You also want to know who may also be involved in the mediation, because it may not just be the parties they may want, maybe a friend or a spouse.
Ed 00:09:23 There is a support person. So you want to make sure that everybody who is participating is aware of who's in the room, because you don't want to potentially have, you know, a witness or something there who might be tainted in some way.
Greg 00:09:36 How does the role of the mediator differ from that of a judge or an arbitrator in these types of cases?
Ed 00:09:42 Well, a judge or an arbitrator is empowered to make the final decision. A mediator is really someone who assists the party in coming to a resolution of their situation. Now, that can be in any number of ways, whereas a judge or a arbitrator is confined to what the law says. So, for example, the court may very well, in a Wills variation, say we're not going to vary the will because we think you're okay, whereas a mediator might be able to get everyone in the room to say, well, you know, is it really that too difficult to maybe, possibly give this person something else? Right. Or come up with constructive ways to benefit someone.
Ed 00:10:26 And one of the classic things that I remember hearing about was there was an issue about someone. I think there was a house involved. You know, should we sell the house? Right. And during the mediation, it was decided that they would allow this person a life interest which was not in the will. And a life interest is, as you know, as they could live in the house. And there were certain things. And you know what? Everybody was fine with that, and it moved things over. Whereas the judge wouldn't do that. A judge would either say, you win or you lose.
Greg 00:10:56 So then you would typically go from that step where the mediation has been successful, to then going to court for consent or for an order.
Ed 00:11:05 Yes. What you want to do, especially when you're dealing with estates, is you've got an executor who is governed by the terms of the will. So when you're dealing with a variation of the will, if the will says we're going to divide it between A, B and C, but then you have a lawsuit saying, hold it, I'm the fourth child and I should have received something.
Ed 00:11:24 And you then do a mediation and let's say they all agree we're going to include the fourth child. What you want is a court order varying the will to the extent that that forced child is now included, because that allows the executor to know who he or she has to divide this estate. In what manner?
Greg 00:11:45 Right. It's an order of distribution.
Ed 00:11:47 Well, it is, but it gives. It protects the executor because the executor is governed by the will into an executor. This is where it gets somewhat interesting, because an executor is neutral in a Wills variation. But you could certainly have situations where an executor is also a beneficiary and has a, you know, an interest in the outcome of things. So you want to make sure you protect the executor.
Nicole 00:12:12 So in your experience as a mediator, what contributes to a successful mediation? Or if you're witnessing lawyers or parties advocating what enhances the chances of a successful resolution?
Ed 00:12:24 Well, I can tell you now that over the last few years, and I think most of the mediators are doing this.
Ed 00:12:30 We don't have opening statements anymore. There was a time where you would have everybody sitting around a large boardroom table opposing each other, and, you know, we'd have maybe the plaintiff go first, put their statement in this and that, and that can be very confrontational. And there's been situations where people have become very emotional about that. So we move away from that. And the mediation briefs are there. So we have an understanding of where people are going. And I think what's helpful is if you know what the estate consists of, that's the main thing, because there's a lot of times when people come and we don't know the values, but we don't know this, we don't know that. And I recall doing a mediation, last year where that was one of the issues. And so it was agreed that they would do an accounting before they moved on to the next step. So that mediation had to be adjourned. They did the accounting, as far as I understand, that ended up resolving the whole matter.
Ed 00:13:29 So that's you want people to be knowledgeable of what they want. So especially with Wills variation, we need to know the size of the estate that we're. That may be in question.
Nicole 00:13:42 I remember when I was mediating, I really noticed the difference in preparation, in terms of success, and that the mediation was almost won or lost before it started by the party that came the most prepared. And also sometimes surprised that you would be mediating and people would not have appraisals or they, they, they didn't have clarity on the tax consequences. And I thought, you know, it's such a amount of time, effort and expense, it would surprise me that parties would come to the table without all that information.
Ed 00:14:13 Well, hopefully, especially with the Wills variation. If you've got an executor who's been involved and can say, you know, this is what we anticipate and we should maybe potentially hold back some monies because of CRA, we don't know. That's very helpful because, you know, a lot of a lot of people, you know, dealing with the death of a loved one is not only emotional, but getting into these financial things, they just think, what's going on? So.
Greg 00:14:41 So and what would be the optimal time to initiate mediation in the context of an estate dispute? And are there specific stages in the dispute where mediation is most effective?
Ed 00:14:54 Well, I mean, I've never done a mediation. I think I said this already before litigation had been commenced. And I think most lawyers would probably want to have at least the exchange of documents. So you have an idea of what information each side is relying on. And it will really depend on the nature of the dispute. If it's a Wills variation, you may have a will which says I'm dividing my estate to two of my three children and I'm, you know, not providing to my third child because I never saw that child, which is a, you know, common comment. And so all of a sudden, that child who's brought the claim that it brings in the box of Christmas cards and photographs and the letters between him and the parent and you kind of. And the other side says, maybe we should think about how we're going to deal with this.
Ed 00:15:47 Some people like to see this do discovery, which because that gives you an opportunity to, you know, view the other party. How good are they? Are they? Do they come across as a truthful person and are they, you know, or can you undermine their credibility or anything of that nature? So that's where that will depend on that.
Nicole 00:16:08 So Ed, you know, you've had a wide variety of counsel in front of you. Do you feel that there's different styles. And do you feel that one style might be more successful than the other? Like there's I understand there's the facilitative style, which is more give and take than there's evaluative, where a mediator might kind of tell the parties what he or she thinks a judge might do. What's your experience with that?
Ed 00:16:35 Well, I don't fit into either box because I look at both sides. And sometimes facilitating is helpful because you can just maybe throw some ideas out there to maybe let them think about it, you know? Have you considered this? Have you thought about this avenue of discussion? Evaluation again, is when you're getting to a point where, okay, you're at this stage and do you really think, you know, it's still who knows? Because we don't know what a judge will do when they hear all the evidence.
Ed 00:17:06 And you're so close, you know, do you really want to spend the tens of thousands of dollars to go in front of a judge and not have an end result, whereas today you can resolve things. Style of counsel. I mean, everybody's different and you just have to take them as they come, and I will not. I can tell you that when I do my opening of an introduction at my mediations, I will not condone any disparaging remarks. Okay, so normally in a zoom mediation, people are in their sort of separate rooms. But if we come together and if somebody wanted to say, talk to somebody, no one says anything until the person is finished and you have to be respectful. If not, I will cut them off. And same in the various rooms where the lawyers and the mediators are. I mean, I can get a sense of people as now saying disparaging things about their relative or whatever. I'll just say, calm down. That's not what we're here for. Let's focus on what we have to deal with.
Ed 00:18:01 And so, you know, the ranting and raving about, oh, you know, when we went to court, we'd get a 90% and all the rest of it. Well, you know, we're sitting around this table now, so if you thought you were going to get 90%, why are we here? Right. And you also have to manage things where if mediation is a compromise, you have people who, you know, the first offer might be somewhat less than they anticipated and they get very upset and insulted. and you have to say no, no, let's. Let's think about where you go from there, okay.
Greg 00:18:35 As part of that process, because you discussed about size of estates is obviously important. Mediation might cut costs. Do you find that people are more willing to accept mediation in smaller states? Maybe. Sandra. Half million but over two, three, 4 million. They're going to dig in.
Ed 00:18:56 You know, I think sometimes with the smaller estates depending I mean our practice, those who are practicing in this area now, we've got a lot more people joining the area.
Ed 00:19:07 Those who practiced a few years ago and could see the, you know, the modest estates would be able to pick up the phone to the other counsel and say, listen, you know, I don't think either of our clients want to pay us most of the most of what they're going to get, right. So, but again, people will, you know, rattle sabers and all the rest of it. And, you know, we'll go to court and everything, and you have to keep bringing them back to the fact that how large are what are we fighting over here? And, you know, what would it what would a judge potentially do? A judge may not very a willed if it's very small. Right. And given the circumstances. So at the size of the estate millions of dollars. Yes. People's eyes brighten up when we've got, you know, lots of money. But again, the costs incurred, you know, mediation still the potential things of dealing with that.
Nicole 00:19:58 So what kind of ethical issues do you encounter in mediating these types of disputes issues?
Ed 00:20:07 well, first of all, I tell everyone I don't give them legal advice.
Ed 00:20:10 They have counsel to do that. And that's very difficult sometimes because some parties will be self represented and it's very difficult to make sure you want them to understand what the potential ramifications are. I haven't come across anyone lying to me. But if they did, I would be very upset. Especially if it was council. I think they were very open and concerned that way. We also want to make sure. I always want to make sure that ethically, we understand who needs to be involved in this, because sometimes you may have, you know, other minor children or someone who's under a disability and are they being properly represented, and you're going to need court orders for that sort of thing to do it. You can't just sort of go to the bank and divide it all up.
Greg 00:20:59 Well, that sort of leads to the next question. You've sort of touched on it. How do you make sure that you maintain neutrality and manage the power imbalances in the mediation process?
Ed 00:21:10 Well, I always explain to the people that I'm dealing with that they can be fully confident in me and tell me anything they want.
Ed 00:21:19 Anything they tell me is held in confidence unless they tell me otherwise, because some mediators will just hear everything and they'll go back over and say, oh, you know, so-and-so said this one. No, I specifically asked people, all right, you've raised that. Is that something you want me to let the other side know now or later on, and they'll give me instructions so I know I can be neutral? And that's really helpful because that gives me also gives me some idea where they might be going. And later on down the road we might be able to say, well, do you remember about an hour ago and neutrality I they have counsel and if I've got some issues with anything, I will sometimes say to counsel, I want to speak to both of you, independent of your client, and just raise some issues that I might, might see. Okay.
Nicole 00:22:12 Okay. What about when you're dealing with really high conflict families or parties that are particularly entrenched? What are some strategies you use to try to reach a resolution?
Ed 00:22:22 Well, everybody's usually entrenched.
Ed 00:22:23 So, you know, when they start, they are. You know, we're right near the wrong sort of situation. You know, I, I try to get to understand the people I'm dealing with. I mean, I've had situations where the issue was in regards to some real property and, it was in joint names and transferred this way in that way. And I went in and I got some background about the person who had passed away and discovered that they had immigrated to Canada. I said, well, that's interesting. And they, you know, all of us. And I said, well, okay, I understand I understand that background because part of my family immigrated and they worked really, really hard to create the wealth they created. And this particular person didn't have any children. So she was providing to initially to her siblings and then possibly to the siblings children. And I said, you know, what was the auntie's real thinking here? I got that one side I did flip over and we resolved it because we started.
Ed 00:23:24 He said, yeah, I can't. If Andy was sitting across the table, she'd be saying, we gotta. But getting into the background, what's the history of this? Why do people think that they are suddenly entitled? But the person who created this situation, why did they do that? And I think that's really important. And just understand because people can be entrenched just because they, you know, they feel, well, we've got a will and the will is a will. We've all heard that statement before, but they don't realize in British Columbia that that's not necessarily the case.
Greg 00:23:56 Well, and also maybe sometimes the wills aren't particularly well written.
Ed 00:24:00 That's true too.
Greg 00:24:00 That is like describing exactly why she made that decision or or sort of the background for it. But how can mediators address the situations where there's allegations of undue influence or concerns about a party's capacity to participate?
Ed 00:24:16 Those are tough because usually there's going to be some medical evidence supporting one side or the other and undue influence, depending on what the nature we're dealing with.
Ed 00:24:27 I mean, if it's a transfer of a, say, a joint bank account and under the law in Canada and British Columbia is that unless it's a true joint account, there's a presumption that you're holding it in trust for the for the deceased person and explaining that to people. And sometimes situations arise where people say, oh, you know, it's undue influence. She was whispering in auntie's ear, but hopefully there's somewhere hopefully Auntie went and saw somebody and told them, because you'll do now seeing a lot of wills that might have created joint accounts with A, B and C, and these are true joint accounts or something like that, but undue influence allegations. You've really got to say, well, that if it goes in front of a judge, what is a judge going to say? Is the judge going to say because you went and had tea with Auntie every Sunday sufficient, or is it more? Well. Hold it. You've got some difficulties here. Because I noticed that not only you were taking Andy to the bank, you're the one signing the charge sort of thing.
Ed 00:25:27 You know, you've got to consider that sort of thing.
Greg 00:25:30 Right? Right. And I yeah, I always go to those joint accounts because this has been around since 2007, for 2008, and it's still not well known largely with the public.
Ed 00:25:42 Well, it's not well known with the, with the public. And it's sometimes, you know, when you think about it, you know, sometimes people do this and the person who's it usually arises because the person who's received the funds says, oh, it's mine. When in fact, no, it was never intended to do that. And I've been involved in a situation where the person put it into joint names with a, I think the eldest child and the eldest child understood that it was to be used to, you know, pay those administration fees when somebody passes away. one of the other siblings said no, no, no. And she said this is what's happening after this is all paid. It's getting divided. The five ways is the will said.
Ed 00:26:21 Now there was nothing written down by the mother. But everybody, all the other families said that. Do it. This is what you got to do, right? So I mean, it's helpful if those who do these things write things down.
Nicole 00:26:33 So maybe we should clarify with our listeners, because a lot of people might not be aware of this. But generally speaking, if people are spouses, if they hold either a bank account investments or real estate joint, that the presumption is that it rolls to the survivor, i.e. it's the survivor's property on death.
Ed 00:26:52 Generally speaking. Generally speaking, I agree.
Nicole 00:26:54 But generally if said anyone other than a spouse, i.e. often an adult child, the cases in 2007 and eight were Pecora and Marsden, and the presumption is that that adult child holds those funds and trust for this state, unless there's some sort of clear intention that it was meant to be a gift. And I think that's what you're referencing, that a lot of people don't necessarily know the law of that.
Greg 00:27:19 Even the institutions. Yes or no? It's theirs.
Nicole 00:27:24 Right?
Ed 00:27:25 No, no I know. And the thing is that, you know, some people, a lot of people who do, I'm sure you're aware when they're doing their wills in their states, they think, well, I don't want to I don't want to pay a lot of probate fees. And so they don't want to, you know, they don't want to give this money to the government. So, you know, I'll put it in joint names with child or whomever, and I know they'll look after things. But to be safe on that, you should make sure you have something in writing to indicate that.
Nicole 00:27:51 Yeah, the take home message to listeners is never, ever just unilaterally set up joint tenancies unless you've received legal and financial advice and you clearly document your intent because unfortunately, those joint chairs, which was intended to save arguably a relatively nominal amount of probate fees, unfortunately often result in disputes that can cause a lot of expense and delay.
Ed 00:28:15 And that's.
Nicole 00:28:15 True. Yes. You've got people like us and Ed, and next thing you know, it's a couple of years later.
Greg 00:28:21 And more than probate.
Ed 00:28:22 More than.
Greg 00:28:22 Probate. Yeah.
Ed 00:28:24 Yeah.
Greg 00:28:25 What is the involvement of legal counsel influence the mediation process?
Ed 00:28:29 It will depend on counsel, but hopefully. I mean, as Nicole mentioned earlier, if people are well prepared, it's very helpful because then not only we may or may know the size of the estate, but also they'll have an understanding of maybe the dynamics between people. And they can also be very helpful in just letting their client know what options are out there. And I think good counsel will have had some sort of strategic plan when they went into the mediation. We all know it's a it's a compromise. So sometimes people will say, well we'll start with our highest because we want the most. And you know, where's our drop dead line. Yeah. And why is it. Why is that number the drop dead? And that can be helpful with good counsel who can explain to their clients who might say, well, what about, you know, this and that? And they say, well, just a second.
Ed 00:29:24 We're here. What? Let's hear what they have to say and maybe guess what. You know, next week you can be actually enjoying this benefit and not have to wait another year and a half.
Nicole 00:29:35 So let's talk about that. What does success look like at the end of a mediation?
Ed 00:29:39 Well it's a compromise right. And people have to understand that going in is that when you it's like any negotiations, you may not get 100% of what you want, but hopefully you're going to come away with a, a sense that when it's been resolved and there's an end to this situation and you can move on with your life now in a lot of these situations. I mean, you don't expect everyone to hug each other Given what they've gone through. And you may or may not, you know, recreate the family, you know, collegiality. But I mean, it's interesting. I had one just recently where we the two parties, after they've resolved it, have had to work together to help administer and do some things on, on the estate.
Ed 00:30:32 And it appears that they are getting along, which is positive, I think is a very positive. But also I think about the three individuals involved and that's in their character. Right. And so a good, a good mediation is that you're not going, you know, it's done, it's finished. And some people may be upset that they didn't get the whole thing, but you know, they've got a result that they have a certain result now rather than thinking, well, if we go to court, what happens if Mr. Justice or Madam Justice, you know, doesn't believe me or my witnesses and, you know, guess what? You don't get anything.
Greg 00:31:10 So how are agreements reached during mediation? Formalized and enforced?
Ed 00:31:16 Okay. Hopefully. I mean, I always ask that they, the council have either a junior lawyer, they're typing things up. as we're doing things. But when we get to a point where through the mediation process, you may find that you have agreement on certain terms as you move through.
Ed 00:31:37 And one of the key things that I always do, and I'm most mediators will do this as well. They'll say, okay, well we have an issue as to, let's say evaluation, but we agree on points two, three, four and five. So you always repeat two, three, four and five. So we don't have to renegotiate those. And that gives people a sense of completeness. And then when you get to that final we're good to go. One of the parties would have created a settlement agreement and that would be emailed over to the other side. They'll review it to make sure the language is how they like. Now, when you're doing a mediation, you're thinking of not only just how much the person's going to receive, let's say, but you want to deal with the issues that are involved. So let's if we use a Wills variation. So typical mum or dad has passed away. They've given everything equally to children one and two and nothing to child three. So you're going to want to say, okay, we've agreed that child three is going to get X.
Ed 00:32:39 But then in the terms of the settlement, you're going to say we want the will varied by court order. That clause two now says not A and B but A, B and C okay. And you'll need a court order for that. You're also going to want to have terms such that the after that the litigation is finished. No more. You can't sue me. I'm not going to sue you. We're done. And you would also want to consider, depending on the nature of the estate, if you can. When certain things might happen, like we have to do. Should there be an accounting by the executor? So generally when you have an estate and everything's good to go and you go through it, an executor to be released ultimately has to say to the beneficiaries, here's what I've done. This is why I spent this money and this is what we have to distribute. So you may want to include and ensure that there is an accounting provided by the executor. Sometimes I've said we'll agree to this, but there'll be no accounting.
Ed 00:33:43 We're not going to go through this next step of fighting over whether or not, you know, the pencils will cost $0.05 or $0.10, right? So we don't have it. So you want to try and lock down as much as you can in the settlement agreement.
Greg 00:33:56 What is the result when it's unsuccessful? Does it still add benefit?
Ed 00:34:00 I think it does. I think it can be beneficial because it allows both sides to remember you're speaking on a without prejudice basis. So anything that was communicated during the mediation can't then be used to say, when you go to court, you can't sort of, you know, the other side stands up and says, I want x millions of dollars. And the other side can't say, hold up, hold it. In the mediation you only wanted y can't say that, but it gives you a sense of where people are coming from. And also, you know how you know how forceful they are. I mean, are they really seriously going to take this on or defend it? And it gives you a good sense.
Nicole 00:34:38 Maybe you don't resolve all of it, but some of the issues that's true. And so whatever issues you proceed to court with, it would be faster and presumably hopefully less expensive. If you're you've got fewer.
Ed 00:34:52 Well, hopefully it depends on the issues that you have to deal with. And you know, the other thing is getting in front of the court these days is we are it's hard. I mean, trials are now at least two years away. Getting in front of judges and just in chambers is very difficult because there's so many people there. I mean, the average people don't appreciate that, you know, court is, what, four hours a day and you can walk in and the list could be ten hours, and whether or not you get on or not. And that's very frustrating as well to the clients as well, because they think, well, we've got a court date, why didn't we get a judge? We're not. And guess, you know, your there's your lawyer sitting there all day still expecting to be paid and not getting anything done.
Nicole 00:35:36 So are there scenarios or fact patterns where you would say it would not be appropriate for mediation?
Ed 00:35:44 I think a committee is the most difficult one now, so people don't know what committee is your listeners. That's where someone is potentially incapable of managing their finances and or their personal affairs. And so normally when that happens there's a medical opinions, and the person may object to that whose being the subject of the opinion. Or maybe so many family members. And that's difficult because ultimately, who's going to have the decision if the doctors are coming in on the opinions that, you know the person is incompetent? You have to deal with that. And you know, you need a court order to have somebody handle things. Now, the interesting situation might be where you might have the person having done a power of attorney and a representation agreement, and then it's someone else who wants to be committee. So the person who's applying to be committee has to give notice to the power of attorney and representative, and they may oppose that.
Ed 00:36:44 And depending on the level of the capacity of the patient, there is a case out there that I'm aware of where that person was interviewed by a lawyer and an affidavit was sworn by that person and it was admitted into court. And all that person was basically saying was my first choice is this person rather than that person. And it gives you some idea as to why. And so, you know, those are tough. And I don't think I would do a mediation on that.
Nicole 00:37:14 So what about if there were allegations of fraud or maybe even abuse? Would a mediation be appropriate? Or do you think that was better resolved by a court?
Greg 00:37:26 Well, I mean.
Ed 00:37:27 If someone's making the allegation of abuse, they're going to have that burden and that's going to be, you know, it's a very serious allegation. And so it could work out in a mediation, because I hate to say it, when you're dealing with dollars and cents here, there's not going to be some, you know, an acknowledgment.
Ed 00:37:42 Yes, the deceased person did terrible things to you. But, you know, given what we've heard, given the evidence, what would a court do? Court could very well say, given those actions, we understand why that particular say child Felt they could never be close to that adult, that parent. And so the estrangement is really a result of the parent actions, terrible actions, and not the person who's been cut out. So it could be dealt with.
Greg 00:38:15 How can parties assess whether mediation suitable for their specific circumstances?
Ed 00:38:21 Oh, boy. Hopefully we've got counsel.
Greg 00:38:24 Is it normally going to be on the advice of counsel?
Ed 00:38:27 I think it usually is, I think lawyers. given the state of affairs with our judicial system and the amount of time it takes to get on, you know, get a trial date and get heard and all the rest of it. Mediation is becoming more and more advantageous. And also the bar itself is promoting alternate dispute resolution as a means of resolving things. for all the reasons we talked about earlier today.
Ed 00:38:56 and I think that's, you know, it's counsel would be remiss. I, I, I've always thought of mediation as a string in my bow. Okay. Ultimately, go to court. Fine. But, I mean, if this is a possibility that can help resolve things, we should investigate it whether or not the other side is interested. I don't.
Greg 00:39:15 Know. And for mediation, does it always require lawyers to be involved? Must you have counsel?
Ed 00:39:22 Well, as a mediator, I would prefer counsel because I can't give legal advice to the people. So the you know, if you've got an unrepresented person, they'll say, well, what? You know, what am I giving up? Well, that's not my role. And so you might get to a point where if, if you had two self represented or a number of self represented people, that they would all have to go and get legal advice before they signed any agreement. And then you might be back at square one because someone says hold it.
Ed 00:39:51 My lawyer says that's not a good idea for me to do that.
Nicole 00:39:54 This has been great. You've given us a very detailed synopsis. Are there any final tips or points you think our listeners should know about mediation?
Ed 00:40:04 Well, I think one of the main things is, consider it even when you're in litigation. Think about it because it's a potential, resolution mechanism. Make sure you've got your ducks in a row that you feel confident enough, that you've got enough information, that it's worthwhile proceeding. There's no sense starting off and saying, oh, we don't know this. We don't know that. And raise it with your the lawyer that you're going to be retaining and see what their thoughts are.
Greg 00:40:30 Well, thank you very much. And, how can our listeners find you?
Ed 00:40:35 Well, I mean, you can go on the internet, a website, NorthShoreLaw.com and find me. I'm there. That's probably the best place to get me. I, I'm not a big I don't do Facebook and things, so.
Ed 00:40:47 But it's good.
Greg 00:40:48 Or Sherlock in North Vancouver.
Ed 00:40:50 In North Vancouver. Yeah.
Greg 00:40:51 Otherwise you may get some surfers looking for you on the North Shore. Oh, God.
Nicole 00:40:55 Thank you so much. It's been really wonderful to have you.
Ed 00:40:58 Well, thank you for inviting me. It's been interesting.
Greg 00:41:00 Thank you. Ed.
Nicole 00:41:01 This podcast is for informational purposes only and should not be considered individual, legal, financial, or tax advice. Make sure to consult the advisor of your choice to advise you on your own circumstances. Thank you for joining us for this episode of Your Estate Matters. If you like this podcast, make sure to follow it on your podcast platform of choice.
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