Mediation is an alternative to courtroom litigation as a means
to resolve disputes about Estates, Trusts, Wills, and Property and
Personal Care decisions for incapable persons. Mediation can be
conducted at any time, with the assistance of a trained, objective
mediator who assists the parties in negotiating the issues they
desire to resolve. Mediation can be held before or after courtroom
litigation proceedings have begun.
Mediation may offer the following benefits when compared to
traditional courtroom litigation: voluntary participation,
informality, flexibility, speed, lower cost, choice of mediator,
privacy, broad scope of remedies and solutions, and an opportunity
for each party to the dispute to speak directly to the others.
The mediator strives to create an informal, comfortable setting
for the parties to identify and explore the issues they would wish
to negotiate a resolution to. The mediator does not judge the
merits of each party's interests, nor render any decision.
Rather, they assist the parties in considering the strengths and
weaknesses of each party's case and work with them to discover
mutually acceptable solutions.
If the parties are able to negotiate a resolution of the
dispute, a written mediation settlement agreement is signed by all
the parties, at which point the agreement becomes an enforceable
contract. If no agreement is reached at the mediation, the
statements and negotiations at the mediation are "without
prejudice" and cannot be used in the litigation proceedings by
any party without the permission of the others. Therefore,
mediation provides an opportunity for a full and frank discussion
among all the parties to a dispute in an informal comfortable
setting without the rigid procedural structure of courtroom
Mediation can be desirable in an estate litigation situation
because sometimes such disputes are not simply about property and
legal documents, but may range towards past communication
breakdowns, actions, and emotions of family members. Mediation can
also provide flexible solutions and offer solutions for future
conduct. It also offers privacy that can be of benefit where a
family does not want to 'air its dirty laundry' through the
public court system.
Sometimes the parties wish the mediator to have subject matter
expertise to assist the parties in focusing on a particular estate
planning or estate administration issue.
The mediator is usually able to offer flexibility in terms of
booking an appointment and the length of the actual mediation
proceeding. A lot can be accomplished in one day of mediation. Even
if the parties are unable to resolve all issues at mediation, the
process can assist the parties in narrowing the issues and
identifying strengths and weaknesses in their case, and in the
cases of the other disputants. Mediation has proven to be highly
effective in resolving disputes by giving the parties greater
control and personal involvement.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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In Irwin v. Alberta Veterinary Medical Association, 2015 ABCA 396, the Alberta Court of Appeal found that the "ABVMA" failed to afford procedural fairness to a veterinarian undergoing an incapacity assessment.
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