The Devil is in The Details – Top 5 Tips for Mediating a Guardianship Dispute

Many of us are familiar with the proverb “the devil is in the details,” which means that while something may at first glance seem simple, it may be difficult or require more time and effort than anticipated to implement in practice. This is particularly applicable to settling guardianship disputes, which are frequently complicated and messy, with emotions running high on all sides. However, given the steep costs (both emotional and financial) of litigating such a matter to its conclusion, an effective settlement is usually the far preferable option. This article is intended to provide an overview of some of the things you can do to increase the likelihood of reaching a satisfactory settlement for everyone involved.

1. Choose the right mediator

This first point may seem obvious and something that applies to the successful mediation of any dispute. Nevertheless, it bears repeating and is possibly even more important in a guardianship dispute, which often involve parties between whom there are longstanding tensions and sometimes estrangements.

When you attend a mediation and have an opportunity to work toward a settlement, you need to ensure that the person guiding those discussions can work well with the specific personalities involved. A good way of looking at this is to consider whether you need a mediator who tends to employ a “black letter law”-focussed approach as opposed to a people-focussed approach.

It may be that your client and the opposing party are each angry and stubborn, with both sides digging their heels in and refusing to meet the other halfway. Perhaps nothing will get through to these parties except a clear articulation of what the law is and what each side’s chance of success (or lack thereof) is. Conversely, your client (or the other party) may feel vulnerable or as though the other party has bullied them for many years. The better mediator for that client might be one whose manner lends itself to the parties trusting him or her and opening up about what the underlying issues are that could pave the way to a settlement. For example, maybe the secret is that one sibling simply wants an apology from the other. A concession like that is not something that would likely be explicitly laid out in a mediation brief or included as a requested head of relief in the court pleadings, but it might be the turning point that allows the parties to shift out of litigation mode and move toward a settlement. In that case, the mediator who focusses on the substance of the briefs exchanged and the applicable black-letter law might not be able to establish enough of a rapport with your client to elicit this information.

The key here is to understand the facts and the parties well enough to gauge what type of mediator and style will be most effective at settling the case.

2. Ensure the incapable person’s wishes are at the forefront

Guardianship disputes can sometimes become muddied by personal resentments or grievances between family members who have a long history with one another. Although everyone involved may claim to have the incapable person’s best interests top of mind, sometimes the incapable person’s wishes take a back seat to what everyone else claims is best. However, the incapable person is always the most important party in a guardianship dispute and their wishes need to be at the forefront of the discussions leading up to and at the mediation.

In order to ensure this happens, if the incapable person has not already retained their own lawyer, it is helpful for counsel to be appointed for the incapable person pursuant to section 3 of the Substitute Decisions Act, 1992, SO 1992, c. 30, as amended (the “SDA”), if appropriate. On order by the Court, the Public Guardian and Trustee (the “PGT”) can appoint Section 3 Counsel for the incapable person. Even if the Section 3 Counsel appointed is unable to get capable instructions from their client, their role includes presenting the wishes that the incapable person articulates for consideration by the other parties. Section 3 Counsel should be included in the settlement discussions before and at the mediation. The role of Section 3 Counsel is not to assert his or her own view of what is in the best interests of the incapable person, but rather to act as the voice of the incapable person. Their input may be necessary where the incapable person is not able to articulate his or her wishes clearly or loudly enough to be heard over the din of the other parties.

Where possible or appropriate, it is often very useful to have the incapable person themselves attend some or all of the mediation. Of course, this may not be feasible in certain cases, whether because of mobility or other constraints. However, having the incapable person physically present can help the parties remember the person at the centre of the dispute. Unless they are uninterested/unable to attend, the incapable person has a right to be present at a discussion about settling issues that will primarily impact his or her life more than anyone else’s.

3. Proactively gather the necessary information

Countless factors go into crafting a feasible settlement of all the issues at play in a guardianship dispute. To reach a global settlement of the relevant matters at mediation, you will need to put in the work ahead of the mediation so that you and your client, the opposing party (and their counsel), and the mediator all have the relevant information necessary to put together a settlement.

1. What are the incapable person’s resources and expenses?

In guardianship cases, we frequently find that one of the biggest causes of contention are what the living arrangements will be for the incapable person. Is the incapable person receiving adequate care? Will they remain living at home? If so, who will provide care? Are there enough funds available to make living at home possible? Should the incapable person be moved into long-term care or a different living arrangement from the status quo? If the incapable person is living with one of the other parties to the dispute to save on living costs, do the other parties have sufficient access to the incapable person?

From a strictly financial point of view, we recommend ensuring that you gather and circulate the following information before attempting to negotiate living and care arrangements:

• The incapable person’s income and assets;
• The incapable person’s care requirements (i.e., are the current care arrangements meeting their needs or does the care need to be increased? What is the cost of the status quo versus the cost of a new residence or increased care in the same residence?);
• The incapable person’s expenses generally;
• The incapable person’s liabilities, if any.

Assembling this information before starting to negotiate the core issues will allow everyone to come to the table with a clear understanding of what is or is not feasible, at least from a numbers perspective.

2. Who will be appointed guardian?

Who will be appointed guardian, and will they seek compensation for their work as guardian? In many cases, much turns on this question. If there is no consensus between opposing parties and the incapable person requires a substitute decision-maker, you need to think about practical options for a neutral third party.

You may want to consider whether the PGT would be an appropriate neutral guardian. If this is something your client is open to, it is worthwhile to canvass whether the PGT would consent to such an appointment in advance of the mediation. It will not help anyone involved to negotiate a settlement on the basis that the PGT will act only to find out after the fact that the PGT feels it is not an appropriate case for their appointment. Alternatively, a lawyer representing the PGT may wish to be involved in the mediation or weigh in on the settlement discussions in advance if there is a reasonable prospect of the PGT ultimately being appointed.

If trust companies are being considered as possible guardians, it is important to come to the mediation prepared with all necessary information from the trust company your client is seeking to have appointed. This includes a proposed fee schedule and details about any special fees that may be charged, depending on the circumstances of the case. Similarly, the trust company in question will likely wish to have information about the incapable person’s assets and the circumstances before agreeing to the appointment. In addition to obtaining and bringing information to the mediation about your client’s choice of trust company, your client should also obtain and bring information about competing trust companies in the event that the opposing party is unwilling to agree to the trust company your client first proposed simply because it was your client’s first choice. If your client is armed with competing fee schedules from other trust companies and information about whether those trust companies are willing or not to be appointed in the particular case, your client will be in a better position to negotiate a settlement.

3. What are the legal costs and how will they be paid?

Money almost always factors into settlement discussions. Usually, both parties have spent a considerable amount in legal fees by the time they reach the negotiation table and they likely all feel strongly that they should not need to shoulder the burden of their legal battle personally. This is particularly true in a guardianship dispute, where most people involved feel that they are acting in the best interests of an incapable person and not personally gaining anything from the litigation.

You should have a clear and accurate summary of your fees and disbursements incurred to date, as well as a reasonable estimate of the projected costs for the mediation and the steps necessary to implement the settlement. This also ties back into our earlier recommendation that you have information about the incapable person’s assets available at mediation. It is likely that the opposing party will not agree that they should bear some or all of your client’s costs. It also may be the case that the incapable person contributed to the current state of affairs, perhaps by appointing two attorneys who do not historically get along or by making duelling powers of attorney or by failing to make any powers of attorney at all or by commingling their assets with those of one or more of their children while still capable. The parties may then agree that at least a portion of the legal fees should be paid from the incapable person’s property. In order to document this in minutes of settlement, you need to know what costs each party has incurred, what percentage of those costs are attributable to the incapable person (or, conversely, to unreasonable conduct by the other party), and whether the incapable person has the means to pay.

4. Provide well-rounded support to your client before and during mediation

Representing your client at mediation does not necessarily mean doing exactly what you would do if you were litigating the matter in a courtroom. Your client may be his or her own worst enemy at mediation, whether because he or she is stubbornly clinging to an unreasonable position, does not have a clear grasp of the law and the relative strengths or weaknesses of their case, or is simply keeping something to themselves. Your role in representing your client effectively requires you to understand your client, educate your client, manage your client’s expectations, and, in some cases, manage your client themselves.

1. Understand your client

Returning to our earlier discussion about people-focussed mediators who can elicit information from clients that may not be obvious from in the pleadings, you, as counsel, also need to understand your client’s motivation. A mediation is your client’s opportunity to truly feel heard in a way that he or she might not in court. A judge will likely not be able or willing to sift through information that has no legal bearing on the case but is ultimately what the case turns on. Similarly, you may not wind up with a mediator who does so either.

You are your client’s advocate. If you understand what is truly driving your client’s reactions to proposals from the other side, you can help him or her frame those effectively in a mediation brief or at the mediation itself.  

2. Educate your client

Make sure that your client understands what the applicable law is. This does not mean that you send them dozens of case citations or expect them to become experts in our area of practice. However, it does mean providing a clear, concise explanation of what the legislation or case law says and highlighting any facts that are in the client’s favour or where they have acted in a manner that is offside.

Education also means preparation. Does your client understand what happens at a mediation? Have you adequately explained that the role of a mediator is not the same as that of a judge? Does the client understand what the legal costs may wind up being if the matter does not settle and instead proceeds to a trial?

The better your client’s understanding is of what might happen if settlement negotiations fail and everyone winds up in a courtroom, the likelier they are to be open to a reasonable settlement opportunity.

3. Manage your client’s expectations

Does your client understand that a settlement will necessarily entail compromise? This does not only mean getting your client to think about their Best Alternative to a Negotiated Settlement. It also means reminding him or her that the incapable person likely wants to maintain their relationship with the party on the other side of the dispute, and that the end of mediation does not necessarily mean the end of the parties’ involvement in one another’s lives.

4. Manage your client

Law is a client service business and ensuring our clients’ best interests are met should be a priority. Although your client may feel that you are not doing your job if you do not simply follow their instructions to a tee, you may in fact be serving them better if you push back on their instructions to take an unnecessarily aggressive stance or clearly point out that their behaviour is an impediment to settlement. To be clear, this does not mean that you dictate the terms of the settlement, because of course it is the client’s decision what he or she ultimately agrees to or is comfortable with. However, it does mean that you endeavour to help your client avoid derailing the settlement negotiations by returning ad nauseum to a point that is completely irrelevant or levelling insults at the opposing party.

5. Consider the Practical Implementation of the Settlement

You may have negotiated an agreement about who will be guardian, what the care and living arrangements will be, and who is paying what portion of the legal fees, but have you considered the multitude of matters that may impact a successful implementation of the settlement?

In terms of procedural matters, you should ensure that you have an agreement about what the necessary steps are to formalize the agreement. If the matter is a blended dispute involving, for example, an interrelated passing of accounts application, consider whether the settlement requires court approval on behalf of the incapable person. If so, discuss whether a litigation guardian is required and, if so, who should act. Similarly, it is important to discuss who will return the application to court for a judgment, bring a motion for court approval if necessary, or attend to the dismissal of the proceedings if applicable. Part of that discussion should involve reaching an agreement as to how the costs for same will be paid. Also turn your mind to whether you should include a dispute resolution mechanism to avoid the matter returning to court at a future juncture and, if so, what that will look like.

From a practical point of view, have the parties considered day to day matters that may continue to cause tension going forward? For example, if the parties have an acrimonious relationship but are all actively involved in the incapable person’s life or care, is it necessary to develop a detailed visitation schedule to ensure that all parties have access to the incapable person without disrupting the care or medical requirements of the incapable person?

Conclusion

Guardianship disputes are often messy and stressful for everyone involved, but you can do a lot for your client and for the success of the mediation by preparing your materials and your client in a manner that is holistic, detailed, and forward-thinking. Ensure that you have taken the time to think through the many facets of practically implementing a settlement in a manner that works – not only for your client, but also for the incapable person and any opposing party.

Following the principles outlined above does not guarantee the perfect result, but will certainly stack the odds in favour of successfully reaching a settlement.

Any article or other information or content expressed or made available in this Section is that of the respective author(s) and not of the OBA.