04/10/2013 09:01 EDT | Updated 06/10/2013 05:12 EDT

Try This Alternative to Estate Litigation

Estate litigation can be costly, both financially and emotionally. Thankfully, there is another avenue besides the courtroom that can serve to reduce both types of stress: alternative dispute resolution. Alternative dispute resolution mechanisms allow for disputes to be dealt with outside of the courtroom and are often an attractive means for litigants wishing to push toward settlement.

When faced with the prospect of a heated courtroom brawl, we often canvas with our clients, at various times during the litigation process, the importance of alternative dispute resolution mechanisms. The outcome to an estates matter dealt with in this fashion is often more rewarding and also less expensive than proceeding to trial.

Mediations and arbitrations afford the parties an extra element of privacy and confidentiality that is not available as part of the courtroom process. This aspect of alternative dispute resolution can be appealing to those who are dealing with the personal, sensitive issues that form the basis of estate litigation.

Alternative dispute resolution is becoming more common. In most of the major centres in Canada, it has become of the expected steps to take in almost all kinds of litigation. For estate litigation in particular, alternative dispute resolution has become and extremely important step to take because of the people, emotions and money involved. The rigid courtroom procedure is often not as well-suited to deal with such highly charged disagreements.

Alternative dispute resolution mechanisms such as mediation, allow for increased flexibility in procedure and settlement construction. For instance, a mediation settlement can include elements of tax planning that might not be considered in a judicial decision. Estates matters are also often diverse and complex, touching on many different areas of law, such as real estate, contracts, corporate and family law. The flexibility of mediation allows for each of these areas to be included as part of a global resolution.

There are several factors to be addressed when deciding on whether and what type of alternative dispute resolution mechanism is to be used, be it mediation, arbitration, a family meeting or a type of hybrid. It is important to consider the parties involved, their lawyers or advisors, and their personalities. When dealing with someone considered to be reasonable and who wants to be the author of their own solution, mediation might be a desirable avenue to explore. When dealing with intransigent parties who desire a decision to be imposed upon them, arbitration or the traditional courtroom setting are likely better options. Another important consideration is whether the litigation is near its beginning, middle or end. The effectiveness and desirability of alternative dispute resolution mechanisms is likely to fluctuate with the stage of litigation.

Alternative dispute resolution is not limited to mediation and arbitration. One of the most innovative alternative dispute resolution mechanisms that is increasingly being implemented is known as "med-arb" whereby the parties begin in mediation and then move to arbitration when no further progress can be made. Collaborative law is also an emerging concept where individual counsel is appointed for each party and there is no opportunity to proceed to court. If a matter cannot be resolved short of an actual court proceeding, the collaborative process ends and the parties are forced to retain new counsel in order to resume litigation.

Even though it allows us to earn a living, we acknowledge the reality that nobody likes to be engaged in litigation. Alternative dispute resolution can allow for settlements to be reached more expediently, more efficiently and more privately than through the traditional court process. When faced with the reality of litigation, methods of alternative dispute resolution can serve to ease the pain of what can be an extremely expensive and emotional process.

*Ian Hull and Suzana Popovic-Montag are partners at Hull & Hull LLP, an innovative law firm that practices exclusively in estate, trust and capacity litigation. To watch more Hull & Hull TV episodes, please visit our Hull & Hull TV page.