Court Can Order Involuntary Mediations in Estate Disputes
Effective January 1, 2016, Rule 75.2 was added to the Rules of Civil Procedure
and introduced a procedure for mediating estate disputes throughout the province of Ontario. Rule 75.2 does not replace but complements Rule 75.1 which requires mandatory mediation for specified cases in Toronto, Ottawa and County of Essex in estates, trusts and substitute decision proceedings.
The new Rule 75.2 applies to contested Applications to pass accounts where an order is made that matters proceed to trial. It also applies to contentious estate proceedings where an Application or motion for directions is made.
Rule 75.2.03(1) provides that the Applicant shall make a motion, in the same way as under Rule 75.06, seeking directions respecting the conduct of a mediation to which Rule 75.2 applies. The motion may be combined with a motion for directions.
Under Rule 75.06(3.1) the court has discretion to order that a mediation be conducted in accordance with Rule 75.2, so long as the case is not already subject to a mediation required under Rule 75.1 (Toronto, Ottawa and Essex).
Once ordered, the mediation is to be conducted by a mediator agreed to by the parties or, if they can’t agree within 30 days, as assigned by the Court, with the mediator’s consent.
The Rule sets out a procedure and provides a Form (Form 75.1C) for the parties to prepare a statement of issues to submit 7 days prior to the mediation. The parties and their lawyers are required to attend the mediation session with authority to settle (or a telephone connection to the person with authority to settle). There are consequences, including cost consequences, for not attending the court-ordered mediation.
Within 10 days of the conclusion of the mediation, the mediator is required to provide a report which the Applicant must then file with the court. If there is no agreement reached at the mediation, the matter then proceeds in accordance with any other directions given by the court and if no motion has yet been made for an order for directions, one must be made as soon as possible.
This Rule potentially adds another layer to contentious estate proceedings across the province whereby parties can be ordered to attend mediation involuntarily. Particularly for represented litigants, who do not see a benefit to mediation in a particular proceeding, this rule may have the effect of adding more delay and expense to the proceeding. On the other hand, as is said about the gym, sometimes half the battle is getting there. Bringing the parties together with the right mediator could turn an otherwise adversarial proceeding into one of willing, though possibly grudging, participation among the parties.