In Defence of Med-Arb in Estate Disputes

In the May 2025 edition of ADR Perspectives, Marco Abruzzi a med-arbitrator in Victoria, B.C., makes a strong case for Med-Arb as an Effective Mechanism for Resolving Wills & Estates Disputes, concluding,

Med-Arb presents a compelling solution for resolving estate disputes, offering an effective balance between the flexibility of mediation and the finality of arbitration. By increasing the chances that disputes are resolved efficiently, privately, and with minimal damage to family relationships, med-arb is an ideal method for estate conflict resolution. As estate disputes continue to grow in complexity and cost, Med-Arb should be considered as a potential alternative to litigation. Legal professionals should consider encouraging the inclusion of Med-Arb clauses in wills and estate plans, ensuring that families have access to a structured, efficient, and amicable method for resolving inheritance conflicts.

Support is growing for the use of med-arb outside family and labour law. It is now quite frequently used in commercial, employment and condominium disputes in Ontario.

Despite the reasons set out above, med-arb is not being used much, if at all, in wills and estates disputes. Mediation is commonly used, and there is increasing interest in arbitration as an alternative to traditional litigation. So, why not med-arb as the next step in the evolution of dispute resolution? It has been used since the early 2000s in family law, it is reasonable to expect that it would have become well-established in estates given its similarity to family law in terms of emotional temperature.

In a well-written article from 2019, “Concerns about the Med-Arb“, by C. Wagner and P. Neufeld, both of whom are experienced estates practitioners in Toronto, Ont., raised important questions about procedural fairness and cognitive bias in mediation-arbitration (med-arb) and is quite representative of the views of many lawyers on med-arb.

Unfortunately, the critiques risk undervaluing the inherent flexibility, utility, and protective frameworks embedded in a well-designed med-arb process by focusing on barriers rather than the positive attributes of the process.

This article supports the Abruzzi position and responds to Wagner and Neufeld by asserting that, when thoughtfully applied, mediation-arbitration (med-arb) is not only viable but often ideal for estate disputes.

Specifically, the article counters the claim that med-arb undermines natural justice by highlighting how safeguards can preserve fairness, while challenging the notion that cognitive bias is unique to med-arb, and illustrates how hybrid models, which combine elements of both mediation and arbitration, enhance access to justice and practical outcomes in emotionally sensitive estate matters.

We need to stop looking at med-arb as a mish-mash or confused mixture of bits of mediation mixed in with bits of arbitration. Those days have long passed. Med-arb today is an integrated stand-alone process that is designed with the specific dispute in mind. It has distinct phases from design through to award and is highly flexible.

In Med-arb:

• Procedural fairness can be preserved through careful process design;
• Cognitive bias, while a real concern, is not unique to med-arb and can be managed through professional training and ethical safeguards; and
• There are strategic, economic, and relational benefits that align well with the distinctive characteristics of estate disputes.
• Outcomes are more likely to be accepted by the parties as they will have had every opportunity to negotiate and mediate and if arbitration is needed, they will accept that there was no alternative other than adjudication.
• It is most likely that mediation will resolve at least some of the issues in dispute so arbitration in med-arb is usually far less complicated than standalone arbitration.

There is no doubt that Estate disputes have unique characteristics. They often involve legal, financial, and relationship issues. They often involve a high level of emotion. Med-arb offers practical advantages in this complex environment:

• Timeliness and Finality: Med-arb processes reduce procedural delays as it is a voluntary process. Med-arb is also very cost-effective.
• Familiarity and Continuity: A single neutral who mediates and arbitrates is better placed to understand the interpersonal dynamics involved in the dispute.
• Privacy and Dignity: Med-arb proceedings take place confidentially, avoiding the emotional exposure associated with courtroom testimony.
• Preservation of Relationships: The non-adversarial component of mediation encourages cooperative engagement.

These characteristics make med-arb an obvious alternative to litigation in appropriate cases.

Concerns over impartiality can be effectively mitigated by process design. The Arbitration Act in Ontario permits parties to craft their procedural framework within very broad limits. Similarly, the ADRIC Med-Arb Rules provide guidance to practitioners in incorporating safeguards in process design, such as:

• Informed Consent: Participation agreements ensure parties understand the neutral’s dual role.
• Staged Transition Protocols: A cooling-off period or confirmation of neutrality helps demarcate the mediation and arbitration phases.
• Confidentiality Provisions: Agreements can limit the admissibility of mediation disclosures in arbitration.
• Disclosure Controls: Parties may restrict what is shared in caucus, reducing the risk of unconscious bias.

Courts have long recognized the legitimacy of med-arb. The 2007 case of Marchese v. Marchese in 2007, was the first time, the Ontario Court of Appeal recognized Med-Arb process as a legitimate form of alternative dispute resolution in family law and stated:

[4] We disagree with the submission that there is any ambiguity in the words “mediation/arbitration” or that those words mean “mediation or arbitration”. Mediation/arbitration is a well-recognized legal term of art referring to a hybrid dispute resolution process in which the named individual acts first as a mediator and, failing agreement, then proceeds to conduct an arbitration….

[6] A mediation/arbitration agreement may be reconciled with the Arbitration Act, specifically section 35, which prevents an arbitrator from ‘conducting any part of the arbitration as a mediation.’ If section 35 applies (a point, we need not decide) it can be waived and the agreement to engage in ‘mediation/arbitration’ in this case amounted to a waiver.

Critics argue that mediators who become arbitrators have difficulty in disregarding inadmissible information. This may be so, however, we must remember and not overlook the fact that, as Toronto mediator, Stephen Morrison has stated, “information is not evidence”. In the mediation phase, the process is wide-ranging and information-based, while in the arbitration phase, the award must be based on evidence. Additionally, these risks are not unique to med-arb as all adjudicators, including judges, face the challenge of distinguishing between preliminary impressions and final decisions.

In McClintock v. Karam, a 2015 case in the Ontario Superior Court, the court emphasized that informed consent by the parties is required and should be reflected in a med-arb agreement to confirm their awareness of the process’s hybrid nature. The court’s ruling in this case further solidified the legal recognition of med-arb as a legitimate form of alternative dispute resolution even where a form of evaluative mediation was utilized:

[69] In order to effectively mediate, the person appointed must engage in a process that has a good deal of informality. Mediative techniques include persuading, arguing, cajoling, and, to some extent, predicting. Mediation is a process to secure agreement, if possible. All of those techniques, as well as others, will come into play in trying to secure agreement.

[70] If the mediator/arbitrator must move to the arbitration phase, it cannot be expected that he or she can entirely cleanse the mind of everything learned during the mediation phase, and of every tentative conclusion considered, or even reached, during the mediation phase. However, at a bare minimum the parties are entitled to expect that the mediator/arbitrator will be open to persuasion and will not have reached firm views or conclusions.)

From this it is clear that counsel and neutrals should design and facilitate well-structured processes to support the integrity of the med-arb process, so that it is conducted in a fair and transparent manner and there must be informed consent by the parties. If they do so, it will likely be upheld by the courts.

In a case from 2021, the Federal Court of Appeal in Fono v. Canada Mortgage and Housing Corporation, addressed concerns regarding the med-arbitrator commenting on the strengths and weaknesses of each party’s case. Although a labour law case, its principles are applicable in any dispute:

[9] Further, it is common for labour adjudicators or arbitrators who conduct consensual mediation sessions prior to hearing a case to express tentative views during the mediation as to the potential strengths or weaknesses of parties’ positions with a view to fostering settlement, especially where, as was the case here, the parties are represented by experienced counsel. Such statements are not indicative of bias. …

[10] It would have a chilling effect on employment and labour mediations and undercut their efficacy if statements such as those the appellant alleges were made by the adjudicator were to be placed before the courts. The comments impugned by the appellant merely reflect the adjudicator’s tentative views as to the strength of the offer made by the respondent as compared to risks associated with pursuing the adjudication. This sort of comment is standard fare in mediation.

Further, in Singh v Modgill, a case from the Court of Queen’s Bench of Alberta in 2022, the court reviewed an unusual med-arb process, which was agreed to by the parties. Even though this process was a significant departure from the norm of med-arb, the court upheld the parties choice and commented:

[57] The concept of fairness embodied in s 45(1)(f) (section 19 of the Ontario Arbitration Act) requires a contextual assessment. In a case such as this where the parties are of relatively equal bargaining power and have been represented by counsel throughout, a contextual assessment of fairness must start with the arbitration agreement.

[58] The mediation-arbitration process chosen by the parties was a departure from the norms of natural justice. The Med/Arb Agreement permitted the mediator who became the arbitrator to caucus separately and privately with the parties as part of the mediation. The Med/Arb Agreement then provided for a conversion of the mediation to arbitration with a short fuse on a decision that effectively precluded an oral hearing.

[59] Mediation-Arbitration has become more common in recent years and performs an important function for those seeking expeditious and cost-effective resolution of disputes without all the formalities and procedural protections found in more robust forms of arbitration or in the courts. For a discussion of mediation-arbitration, including natural justice concerns, see David C. Elliott, “Med/Arb: Fraught with Danger or Ripe with Opportunity?” (1995) 34 Alta L Rev 163.

[60] The Arbitration Act is based on the principle of party autonomy and, absent clear language, should not be interpreted as prohibiting parties from choosing mediation-arbitration or what I have called a quick and dirty process to resolve disputes.

[63] All the decisions cited by the applicants deal with circumstances where the arbitration process was in the hands of the arbitrator or arbitral tribunal. These cases may be distinguished from the present case where the terms of the parties Med/Arb Agreement, set out a truncated arbitration process. I would revise O’Brien JA’s statement that “arbitration litigation is not some lesser form of litigation than that being conducted in the courts” by adding the caveat “unless that is what the parties bargained for.”

Another commonly raised concern is that med-arb inhibits openness by parties during mediation as they are aware that the mediator may become the arbitrator if they do not settle. However, competent counsel can navigate this constructively by:

• Framing Offers Strategically: Counsel can frame offers demonstrating reasonableness for settlement.
• Managing Disclosure: Parties can limit sensitive disclosures to joint sessions or flag them as confidential to ensure proper use if the matter proceeds to arbitration.
• Anticipating Arbitration: Knowing the neutral may arbitrate can prompt more realistic positions and discourage posturing.

As noted by ADRIC in its National Med-Arb Competency Framework, for the Chartered Mediator designation, med-arb fosters efficiency without sacrificing justice when delivered by qualified professionals who are accountable to robust standards.

ADRIC’s Code of Ethics and its Med-Arb Rules require that mediators acting as arbitrators maintain the highest standards of impartiality and transparency. These are essential when navigating disputes involving vulnerable parties, such as elderly beneficiaries or dependent family members.

Best practices by estate practitioners and med-arbitrators can enhance the fairness and efficacy of med-arb by:

• Drafting clear, detailed med-arb agreements, including rules of evidence and confidentiality boundaries.
• Integrating pause or opt-out clauses to give parties space before arbitration begins and avoid any confusion over whether the dispute is still in the mediation phase.
• Utilizing checklists and written protocols to reinforce the neutral’s impartial role.

The Transition phase from mediation to arbitration is critical to the success of any med-arb process. There must be a clear line between the mediation and arbitration phases. The med-arbitrator and the parties must clearly understand that:

• The mediation phase has ended.
• What issues, if any, have been resolved?
• What issues are outstanding?
• The arbitration phase has begun.

There is no doubt that the legitimacy of med-arb as an alternative dispute resolution process has been supported by the courts across Canada. With careful process design and ethical best practices, med-arb can meet high standards and preserve its advantages of finality and efficiency without compromising fairness or transparency.

In the final analysis, it seems that med-arb is not considered as an option because counsel are unfamiliar with it so it is natural to continue using mediation and arbitration as separate processes. This is a lost opportunity. Med-arb is a nuanced, flexible, and evolving integrated process that is especially well-suited to the complexities of estate litigation. This is not to say that every estate dispute is suitable for med-arb. But many are and, rather than summarily dismissing med-arb for its challenges, the legal community should focus on its benefits and work to encourage its use in appropriate cases.