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By Julie Gill
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Law360 Canada (June 5, 2025, 11:22 AM EDT) —
| Julie Gill |
As Canada becomes a more aged society, the number of estate and related family disputes continues to grow. As this growth happens, we need to review how we approach estate dispute resolution to ensure we can keep pace with the evolving expectations of families, the changes in our society and the advancements in alternative dispute resolution (ADR) in general.
Increasing lifespans, healthy aging, generational wealth and the impact of globalization on how families live, work and make decisions requires professionals to have a different set of skills than those provided for in law school alone.
The current process of resolving estate disputes is long and cumbersome and has a very high cost, and the timing of settlement for these disputes does not match the needs of the parties.
Like with photography, no one “lens” can capture all the images you need, and different lenses are needed
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for different situations. It is also true that one size of mediation does not fit all.
Presently there is a drive to settlement in estate and related disputes that is not focused on true alternative dispute resolution but pushes parties into an evaluative settlement based on legal positions alone.
This focus on settlement has exposed gaps in the current model and a growing need for a different lens to be applied to these matters to ensure effective and timely resolution.
Estate disputes go well beyond preserving relationships and will challenges. These disputes go beyond the legal impact and encompass emotional and financial impacts, which take a toll on families.
We hear about the overuse of shuttle mediation, multi-day mediations, and the high expectations of parties during what they feel is their one-time chance to settle and move forward. When those hopes are dashed on mediation day, parties feel pressure to settle. Notice that I didn’t use the word “resolve”; many participants I speak with say they felt pressure to settle as they could not face (or afford) to continue the process.
If we aren’t meeting the needs of clients, why do we hang on to the same processes?
If we no longer treat these types of disputes as siloed legal problems to be solved and instead consider the appropriate approach for each family, would that change the lens through which we view resolution? Would that change the choice of dispute resolution professional, the method and the skills required to do this work?
Estate and related matters have similar things in common. They are about decision-making as well as property and/or financial disputes, which are most often based on different ideas of fairness, unmet expectations, perception of intentions and lack of communication between the parties.
We know mediation is especially well-suited to these disputes. They are multi-issue, multiparty, multigenerational, multi-location, multidisciplinary and emotionally charged. There is a need to screen for multiple risks factors, not the least of which include capacity, undue influence, coercive control, family violence, abuse and power imbalances, while having heightened sensitivities to ageism, grief, loss, capacity and consent.
Civil disputes through a family lens
While mediation is currently mandated in three jurisdictions in Ontario (Toronto, Windsor and Ottawa under Rule 75.1 of the Rules of Civil Procedure), the value of these mandatory mediations is not always maximized, as they are often seen as an obstacle on the path to litigation. Applying a different lens to estate and family related matters will create the need for more professionals who are able to work with the family to help prevent and resolve disputes.
If we compare options for family clients during separation with those available to family clients during estate disputes, the gaps are easy to highlight.
There are family and financial professionals trained and certified to support families through separation. There are trained and certified mediators, arbitrators and parenting coordinators. There are collaboratively trained divorce professionals and structured processes.
In comparison, there is no specific estate and related dispute resolution training or certification. There are few family professionals, and many financial professionals lack the opportunity to participate outside of the litigation process. There is little to no arbitration and no collaborative structure or trained professionals.
The current lens has created a limited pool of professionals, broad alternative dispute resolution (ADR) training based on the foundation of litigation, a lack of diversity, extended wait times, significant fees and inflexible mediation models (overwhelmingly evaluative driven) with little succession planning for the next generation of professionals.
How can we develop these new approaches?
To start, I propose family estate and related dispute resolution training that brings together principles and practices from family mediation, elder mediation, estate mediation and coaching to resolve estate and related disputes with a focus on the person at the centre of the dispute. This training will develop the next generation of professionals who approach these families through a different lens.
Additionally, the creation of family dispute resolution models that seek to provide options other than those that are simply evaluative. Approaches that balance the legal and non-legal aspects of the dispute that require an understanding of conflict, communication, family dynamics, aging (often), grief and loss as well as the relevant law. This approach aligns with the growing acceptance of ADR and provides a strong argument in favour of parties seeking resolutions prior to attending court and confidentially discussing topics that are generally considered family matters.
Creating an accessible and flexible approach will promote collaboration, communication and respect to resolve the unique needs and circumstances of the parties.
There is a growing demand for professionals with heightened sensitivities around decision-making who are capable of screening and balancing legal and non-legal issues while understanding elder law, estate law and administration.
If the proposed changes to the Ontario Rules of Civil Procedure proceed, we will need different lenses to meet the growing demand as we look to provide greater client-focused access to justice and create effective and timely resolutions for families.
As Canada becomes a more aged society, the number of estate and related family disputes continues to grow and our approach to these disputes has not kept pace with the evolving expectations of families. Julie Gill is one of the few Advanced Certified Elder Mediators in Canada.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the author’s firm, its clients, Law360 Canada, LexisNexis Canada or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
Interested in writing for us? To learn more about how you can add your voice to Law360 Canada, contact Analysis Editor Peter Carter at peter.carter@lexisnexis.ca or call 647-776-6740.
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