ADR Options in Estate Disputes

ADR Process Options for Resolving Disputes in Estate Related Matters

Estate disputes can sometimes become difficult and challenging, particularly when the dispute is among family members. There may be a disagreement among appointed executors as to how an estate should be administered. Some family beneficiaries may be contesting the validity of a will or revisions made to a will, raising undue influence or capacity issues. The will may be ambiguous. Initiating court processes, although this may turn out to be necessary, can escalate the conflict and sometimes have the unfortunate result of putting a strain on or potentially damaging familial relationships during the difficult time of dealing with the loss of a loved one.

There is an array of process options available to parties who have a legal dispute in estate-related matters. These include direct negotiations, mediation, collaborative law, med/arb, and court action. It is important to discuss these process options at the outset with your legal advisor when you are seeking legal advice for disputes that arise or are anticipated. This article outlines some of the benefits of lawyer-assisted negotiations, mediation, and arbitration for estate-related disputes.

Lawyer Assisted Negotiations

Your lawyer can assist with facilitating negotiation with the other party or parties to the dispute. Your lawyer will complete an intake with you to identify relevant facts and issues, advise you on the law that applies to the dispute, and provide an assessment of possible outcomes if the matter proceeds to court so you can make informed decisions. Your lawyer can assist in identifying the immediate pressing issues and reach out to the other parties and their legal counsel to see if a negotiated settlement can be reached.

Many matters can be resolved amicably through strategic negotiations with the other parties to the dispute with your lawyer either negotiating directly on your behalf or providing assistance and advice in the background.


Another process option that parties can consider as an alternative to or during the navigation of the court process is mediation. A mediator is a third-party neutral that works with the parties to (i) identify the issues; (ii) find where common ground exists; and (iii) assist with identifying and exploring options for resolution.  In this process, the parties can have their lawyers directly participate in the mediation sessions or assist in the background as necessary to provide independent legal advice as the parties weigh options and alternatives through the process. The process is flexible. For example, through the process, the parties can agree to engage a tax accountant to assist in exploring the tax implications of possible estate distributions, or an appraiser to value an estate asset that the executors are considering distributing to a beneficiary as his or her share of the estate.

Mediation has the benefits of being confidential and flexible. The parties are actively engaged in the process and retain control over how the dispute is settled versus having a decision imposed on them.

Arbitration and Med/Arb

Parties can agree to resolve their dispute through arbitration. The arbitrator will conduct a hearing and provide a decision on the issues in dispute.

Med/Arb. is a hybrid approach that parties may consider. If the parties are unable to resolve the dispute through mediation at the parties may consider agreeing that the mediator can then act as an arbitrator in the dispute. Upon the mediator determining that the dispute cannot be resolved through mediation, the mediator would switch roles and act as an arbitrator to decide the issues in dispute. A Med/Arb agreement detailing how this process would work would be signed at the commencement of mediation.

The benefit of arbitration is the ability to customize the process to meet the needs of the parties and match the procedure required to the issues at hand. In addition, the process is kept private and confidential as between the parties which may be important where sensitive information is at hand.


Lawyer-assisted negotiations, mediation and arbitration can be conducted in person or virtually. Virtual meetings have become very common through the Covid-19 pandemic. Meetings can be structured using a combination of these meeting methods to meet the needs of the parties involved as the process unfolds.

It is open to the parties to consider all process options for resolving disputes that arise during the administration of an estate. Having your lawyer explain these process options to you can assist you in choosing what will work best for you given your circumstances and the other parties involved.

Participation in these processes can lead to the resolution of disputes in a timely, efficient, and cost-effective manner.

If you are interested in mediation or arbitration for estate related matters Robertson Stromberg LLP would be pleased to assist.  For more information, please contact Darlene N. Wingerak at 306.933.1392 or email  [email protected].

Related News and Articles

Effect of Marriage or 24 Months of Cohabitation on Your Will – Changes to the Wills Act

The law in Saskatchewan used to be that an existing will would be revoked when the will maker married or upon the will maker cohabiting in a spousal relationship continuously for two years, unless there was a declaration in the will that it was made in contemplation of marriage or cohabitation in a spousal relationship.

This meant that if an existing will of a person made prior to getting legally married or cohabiting in a spousal relationship did not have the required declaration stating that it was being made “in contemplation of marriage” or “in contemplation of cohabitation in a spousal relationship” their will would become invalid upon their marriage or cohabitation of 24 months.

This law has now changed. Effective March 16, 2020 these sections of The Wills Act were repealed. This means a will made prior to a marriage or cohabitation of 24 months that occurs on or after March 16, 2020 will remain valid until a new will is created. A declaration in the will that it is made in contemplation of marriage or cohabiting in a spousal relationship is no longer required for it to remain valid upon a marriage or cohabitation of 24 months occurring on or after March 16, 2020.

To be clear, this change is not retroactive. A will that was revoked because of a marriage or cohabitation of 24 months occurring prior to March 16, 2020 will remain revoked.

These changes were enacted concurrently with changes to The Marriage Act which allows family members of a person to apply to court to nullify a marriage if a person did not have the capacity to provide valid consent.

It is important to have a legally valid will and to review it periodically to ensure its provisions are appropriate having regard to your life circumstances at any given point in time. When a person dies without a legally valid will in place they will be found to have died “intestate” and the beneficiaries of their estate will be determined in accordance with The Intestate Succession Act.

It is especially important to have your estate planning documents reviewed when there has been a significant change in your life such as marriage or cohabitation of 24 months so you can make necessary updates. Starting a family, acquiring significant property with your spouse or others, and dealing with added complexities of succession planning if you are an owner of a business are other examples of significant changes in your life warranting a review and update your will.

The lawyers at Robertson Stromberg would be pleased to guide you through these changes and provide you with practical advice for your estate planning. For more information please contact Darlene N. Wingerak at [email protected]

This post is for information purposes only and should not be relied on for legal advice. Please contact Robertson Stromberg LLP for legal advice concerning your case.


COVID-19: Why now is not the time to put your life on hold

It feels as though life is on hold these days.  People’s careers have been paused.  Kids are home from school.  Our social lives have become considerably more restricted.  We have all been forced to become homebodies, even if we (secretly) don’t mind it. 

However, now is not the time to put your life on hold.  You may have heard that the courts in Saskatchewan have largely been shut down and are only proceeding with emergency situations. As an update, the courts will begin hearing non-urgent applications again in the beginning of June by telephone.  Those of you who are contemplating a separation or divorce may think you are out of luck until the courts begin hearing new matters.  I’m here to tell you that this is not the case. 

There are several process options available to you to deal with your separation or divorce outside of court.  In fact, with the extra time many of us have these days, it makes sense to deal with these matters now so that you can have a fresh start after the COVID-19 quarantine ends. It will soon become mandatory to engage in one of the processes described below before you can seek relief from the courts, so why not get ahead of the curve? 

Collaborative Law:

Through the collaborative law process, parties enter into an agreement right from the start stating that they will not proceed through the court to settle their issues, which saves the heightened animosity and tension court proceedings bring.  It also ensures that the parties are focusing on resolving their issues in a frank and forthcoming fashion, which can ultimately result in time and cost savings and more practical solutions which work best for the parties.  If the parties are ultimately unable to resolve their issues through this process, they can still seek relief of the courts afterward.

You and the other party would work closely with collaboratively-trained and certified lawyers to resolve the legal issues in the case, including property division, custody/decision making, parenting plans, child and spousal support, and divorce.  These lawyers have special training in negotiation, interest identification and option creating, and domestic violence.

Depending on the case and the needs of the parties, other professionals may also be brought into the process.  One such professional is a collaboratively-certified financial advisor, who works to gather property and income information from both parties and provides analysis. They can also be retained by the parties to help them develop a financial plan to move forward with their lives.

The other professional which can be brought in is a collaboratively-certified mental health professional to help the parties deal with issues between them and work together toward settlement.  This professional can also help the parties learn how to best co-parent with each other moving forward and ensure that the children’s needs are identified and incorporated into a final settlement.

In cases where intimate partner violence or control issues are present, the mental health professional can be a key part in helping the parties move forward.  Some people prefer this route as it enables them to face their abuser while helping them appropriately deal with trauma.  This can be particularly helpful in cases where the parties must still co-parent with each other moving forward.

Should you be interested in taking a collaborative approach to your separation or divorce, Curtis Clavelle, the writer of this article, is a collaboratively-certified lawyer and would be happy to discuss the process more: [email protected] or 306-933-1341.


This process is for those who would like a neutral third party to help them come to an agreement.  You may choose to also engage a lawyer to help you through the process.  The mediator is a trained professional whose role it is to help the parties communicate with each other more effectively, recognize what their needs are, and help them reach solutions that meet these needs, without taking sides.

This process generally saves time and money as compared to going through the traditional court approach and results in decisions that work well for the parties, since they are ultimately the ones making the decision rather than having a judge make it for them.  Just like the collaborative approach, mediation can also help parties learn how to work with one another post-separation, which can be especially helpful when they must co-parent moving forward. 

If you are interested in using a mediator to resolve your family law matters, Darlene Wingerak of Robertson Stromberg LLP is a mediator experienced in family mediations and she would be happy to discuss the process more: [email protected] or 306-933-1392.



In this process, a family arbitrator essentially plays the role of a judge.  The arbitrator hears from both sides and makes a binding decision in order to resolve your family law matters outside of court.  Family arbitrators are lawyers with at least 10 years of experience in family law and have taken training in arbitration, decision-making, and family violence. 

The arbitration process offers quicker decisions than a court process and generally saves the parties money.  This process is well-suited to those who want a third party to make a decision for them, without the delays and formalities associated with the court process.

This is different than the collaborative process and mediation since you are asking another person to make a decision for you, rather than working with the other party to come to a resolution.  However, sometimes arbitrators use a combination of methods in reaching their decision, including negotiation and/or mediation.  You and the other party agree ahead of time how you want the arbitration to proceed.  For example, you could agree that lawyers will not be present, or that you will only submit written materials to the arbitrator rather than giving oral testimony. 

If you are interested in using a family arbitrator to resolve your family law matters, Tiffany Paulsen, Q.C., of Robertson Stromberg LLP is a certified family arbitrator and she would be happy to discuss the process more: [email protected] or 306-933-1317.

For more information, please contact:


Curtis P. Clavelle


Email: [email protected]


Darlene N. Wingerak


Email: [email protected]


Tiffany M. Paulsen, Q.C.


Email: [email protected]

Whether it’s personal or business, we handle cases ranging from wills to overseeing complex business deals, and everything in between. Our success comes as a result of our collective effort. Combining the experience of your lawyer together with the resources of our team, you can put your trust in us to handle your case with confidence.

LawyersDarlene N Wingerak