Presented by Kathryn Sainty Q.C. on January 18/17 for the Estate Planning Council of Abbotsford

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

2. MediationforEstatePlanningandEstates–Who,what,
when,where,whyandhow?

3. Mediationfor EstatePlanningand 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

4. Mediationfor EstatePlanningand 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

5. Mediationfor EstatePlanningand 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

6. Mediationfor EstatePlanningand 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

7. Mediationfor EstatePlanningand 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

8. Mediationfor EstatePlanningand 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

9. • 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

10. 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?

11. Mediation for EstatePlanning 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)?

12. Mediation for EstatePlanning 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)?

13. 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?

14. 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?

15. 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?

16. 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

17. 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?

18. 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?

19. MediationforEstatePlanningandEstates–
Who,what,when,where,whyandhow?

20. MediationforEstatePlanningandEstates–
Who,what,when,where,whyandhow?
Kathryn Sainty, QC, Sainty Law
Presentation to Abbotsford Estate Planning Council – January 18, 2017