Estate Planning

Does Mediation Hinder the Progression of Law?

By Hull & Hull LLP

While mediation has been highly lauded as a "win-win" situation for all parties, this form of alternative dispute resolution is not without its critics. Owen M. Fiss has stated that mediation prevents the progression of law, thereby inhibiting the courts from fulfilling their role in society. According to Fiss, the duties of the court are not simply to find compromise amongst the disputants, but rather to provide force to the values encompassed by laws of society.

Mediation is often an effective tool for the resolution of estate disputes. While mediation generally provides a solution to complex matters at a considerable cost saving than would be the case if the matter proceeded to trial, the question is whether this undermines society as a whole. In other words, so many estate cases (and by extension all legal cases) rely on the progression of the common law. If mediation is utilized to resolve matters in a private and confidential environment, the opportunity does not arise for the advancement of the law had the case been disposed of at trial.

Notwithstanding the above, mediation is a powerful and effective tool in settling estate disputes. That is to say, mediation can mean the difference between the reparation of familial relationships, as opposed to the rift between relatives through the adversarial litigation process.

Thanks and have a great day,

Allan Socken

Full post as published by Toronto Estate Law Blog on April 03, 2008 (boomark / email).