*The following blog was written by Sharon D. Davis*

Human relationships are marked by conflict. When family dynamics, money issues and the death of a loved one are thrown into the mix, that conflict often ends up in estate litigation.

Mediation has become a mainstream way of dealing with estate disputes in Canada. Mediation is a private negotiation process facilitated by a neutral third party (the mediator). This process is inherently different from the formal, adversarial judicial process.  The mediator assists in communication and explores solutions to help parties reach an agreement. The objective is to reach a solution that both parties have created together. It stands to reason that no one knows more about the dispute than the parties themselves, so they are uniquely equipped to find solutions.

Judges are strangers to the dispute who are constrained by the law and must therefore often render all or nothing decisions.  Mediation can result in quicker, more satisfactory and sustainable outcomes for litigants than are possible in an overburdened judicial system.

The advantages of mediation include:

1. Cost efficiency.
2. Faster resolution.
3. Flexibility and control over processes and solutions.
4. Confidentiality in a private process.
5. Potential to preserve relationships through collaboration.

In certain jurisdictions in Ontario (Toronto, Windsor and Ottawa), mediation is a mandatory step prior to trial in estates and commercial disputes.  In other jurisdictions where it is not mandatory, it is preferred, and parties often enter mediation on a voluntary basis.

Where families and assets spread across countries, family conflict follows. So, what happens when estate disputes cross borders?

The misunderstanding, mistrust and miscommunications that exacerbate legal disputes are compounded when disputes span countries and cultures. The dynamics of interpersonal conflict have a strong basis in human psychology along with the unconscious biases and heuristics we all possess.  The influence of different cultural norms, experiences and legal systems increases both the potential for disagreement and the complexity of the issues. This is where international mediation can assist.

International mediation addresses disputes involving people in or from more than one country. The issues on the mediation table will inevitably involve different cultures, values, and legal frameworks. However, the people in the seats at that table all share a common trait: they are all human.

While lawyers are experts in conflict, mediators are experts in conflict resolution. Internationally acclaimed mediators share a keen and passionate interest in getting to the heart of the parties’ underlying needs and goals, rather than the technicalities of the legal positions.  I have attended several international mediation conferences and have met many mediators from various professional backgrounds and legal systems. The majority are legally trained and licensed, but I have noticed a growing representation of professional mediators who are not lawyers. Regardless of professional accreditation, mediators see conflict differently than traditional litigators.

If you are interested in international mediation and/or looking for an international mediator, you may wish to consult any of the following:

1. The International Academy of Mediators (https://iamed.org/) has a roster of highly trained and experienced professional mediators that can be searched by location and area of mediation practice, including Wills, Trusts and Estates.
2. The International Centre for Dispute Resolution (https://www.icdr.org/) has a case management system and hearing centres all over the world. There is also a specialized initiative in Canada (https://www.icdr.org/icdrcanada). The Mediator search tool allows a search for mediators in the practice areas of Probate and Elder Care.
3. The International Mediation Institute (https://imimediation.org/) has developed global professional standards for mediators and advocates involved in collaborative dispute resolution and also has a roster of highly skilled mediators.
4. The International Chamber of Commerce (https://iccwbo.org/) headquartered in Paris, France, supports the continuity of global trade by helping businesses prevent and resolve disputes through case management services. It has well-developed rules for mediation and arbitration that regulate the management of ICC cases and provide a structured process for amicable resolution of international disputes, though its focus is primarily commercial disputes.

Once a settlement is reached, international disputes have the added challenge of implementation and enforcement.  The parties decide the practical implementation of the resolution and the law they want to apply to their agreement.

The primary enforcement mechanisms available for amicable resolutions of commercial disputes internationally include the Singapore Convention on Mediation (https://www.singaporeconvention.org/home) and the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (“The New York Convention”) (https://www.newyorkconvention.org/).

The Singapore Convention on Mediation came into force in September of 2020. It provides a uniform and efficient framework for the enforcement of international settlement agreements resulting from mediation in commercial disputes. However, Canada is not yet a signatory and the Convention excludes disputes relating to family or inheritance matters.

Canada became a signatory to the New York Convention on May 12, 1986.  While the New York Convention may not frequently apply to estates matters, enforcement under the New York Convention is generally available unless a matter is mandatorily non-arbitrable under domestic laws. In the case of a mediated settlement, a mixed mode of dispute resolution (“MED-ARB”) could be employed whereby a settlement agreement is converted into a consent arbitral award, which could be enforced under the New York Convention in 172 countries worldwide.

While international mediation tends to focus on commercial disputes, the framework developed may be instructive to the resolution of international estate disputes.

 

Sharon D. Davis

https://sharondavislaw.ca/

https://www.linkedin.com/in/sharondavis2009/