Beyond the Five Stages of Grief: Best Practices for Estate Mediation and Advising the Bereaved Client

Abstract

In 1789, Benjamin Franklin famously wrote that nothing in this world is certain “except death and taxes.” Yet, as the baby boomer generation increasingly comprises our senior population, a third near-certainty has emerged: family disputes regarding the estate of a deceased family member. This article reviews the Canadian legislative response to these estate disputes thus far through the introduction of Rule 75.1 of the Ontario Rules of Civil Procedure. It is argued that the introduction of mandatory mediation provides the Estates Bar with an opportunity to review emerging demands on lawyers as well as mediation and bereavement literature in order to discern best practices for estate mediation. This article then compares current professional approaches to bereaved parties with modern bereavement literature. Finally, this article sets out a preliminary framework of best practices for estate mediation, arguing that the “new estates lawyer” must proactively incorporate knowledge of the psychological dynamics of grief into preparation for and participation in estate mediation.

Keywords: Estate Mediation, Rule 75.1, Ontario Rules of Civil Procedure, Bereavement Theory, Stress, Family, Mediation, Ontario, Canada