Mediation Works In Estate Litigation

Mediation concluded another successful mediation this week.

While discussing the overall process of mediation with the mediator, we realized that 19/20 of our last mediations together have resolve successfully.

That 95% success factor in mediation is in itself astounding as it is the approximate general average of overall success in the mediation process.

To it is even more astounding, given the propensity for a huge amount of emotion between estate litigants fighting   over a loved one’s estate.

That scenario is juxtaposed to businessman seriously trying to resolve a business dispute that usually contains little personal animosity.

Mediation works and should be encouraged in the litigation process.

Mediation as used in law is a form of alternate dispute resolution (ADR), a way of resolving disputes between two or more parties with concrete effects.

Typically a third-party, usually a highly skilled mediator who is often a senior lawyer, but not necessarily, assists the parties to negotiate a settlement.

Mediation has been used for many years in a variety of domains, particularly commercial, community and diplomatic contexts, while in more recent years it has become more generally accepted in legal disputes, particularly those involving business and family matters.

It is a very interesting process to participate in, and the 90+%  success factor speaks for itself.

In most situations it is far preferable to a judge making a decision in which one party generally loses and another party wins.

In a successful mediation it is a win-win situation for everyone.

If the mediation process fails and no agreeemnt is reached, there is still a trial as a last resort.

Mediation broadly refers to any instance in which a third-party helps others reach agreement.

It has a structure, a timetable, a dynamic all of its own, and it is strictly confidential.

The mediator is 100% neutral and simply facilitates rather than directs the process.

For most civil disputes in British Columbia one-party can compel the other to attend and mediation.

While it is true that one cannot compel the other to negotiate in good faith at the mediation, it is the experience of that the mediation  time is never wasted and is nearly always fruitful.

Mediators use various techniques to open, improve, and achieve dialogue between the disputants , with the sole purpose of helping the parties reach an agreement .

The negotiators that use for estate litigation are very senior lawyers that are highly skilled in the mediation process and restrict their legal  practice to same.

The advantages of mediation over litigation are as follows:

1. It is usually far cheaper for the litigant;

2. The process is usually much faster than waiting for examinations for discovery and trial;

3.  The process is confidential, courts are public

4. Parties have far more control to negotiate an agreement that best suits everyone,as opposed to having a judge impose a settlement;

5. There is generally more compliance with the agreement because the parties have negotiated in good faith-the agreement also has the force of law;

6. Mutuality- the dynamics of mediation generally involve hearing the other parties side and assuming this to move their positions towards a more amenable position that can result in a mutual settlement;

7. The skills of the mediator are often not realized at the time but they often are the neutral arbitrator who can guide party to accept a broader variety of solutions

8. The entire structure and dynamics of mediation are designed to restrict pressure, aggression intimidation and instead to promote communication and understanding through cloning speaking and listening skills.


It is the position of that generally speaking all litigants should firstly proceed through the mediation process before being allowed to proceed to a trial.

Trials are very expensive and are a burden on the taxpayer at the end of the day.

Parties should be encouraged to try and resolve their own disputes through mediation before being allowed to utilize the court system for trial.

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