“The Price of Justice is Eternal Publicity” – Arnold Bennett, Secret Trials (1923)

In preparing for mediation, counsel and client often focus much of their attention on issues of liability and the quantification of damages. Mediation briefs often set out the facts and law that feed the legal issues, reflecting what is anticipated to be the evidence at the trial.

But mediation, and the brief filed for it, do not have to follow that thinking. Mediation briefs and mediation advocacy can and should go beyond the trial paradigm.

An important aspect of commercial disputes often overlooked by lawyers, and indeed sometimes by the clients, is the impact of “intangibles”. Broadly speaking, intangibles are factors, often unexpressed, that motivate a party to settle or continue the action.

Here are some common examples:

(a) Precedent: The need to set or avoid a precedent that will impact on the way a party does business. It is not uncommon for large commercial actors to use the juridical precess to set normative business rules or vindicate commercial practice;

(b) Reputation: The need to keep intact one’s business or personal reputation or rehabilitate it. Often, professionals who are named parties in an action seek to avoid the notoriety that a published law report brings;

(c) Confidentiality: The need to keep one’s business private and confidential. Unless a court agrees to seal up the evidence or restrict publication, the openness of the court process may be a factor to consider in whether to settle or try a case;

(d) Solvency: Can a party pay the judgement or costs?

(e) “Loss of Management Time or Opportunity Costs”: Spending time with lawyers has two costs effects: the first is the lawyer’s time and the client’s exposure for costs; the second is the time the client is away from the office or the activity that makes him or her money;

(f) Anger, Revenge, Remorse: These very human responses to conflict are legitimate factors for considering when to settle and how to settle.

The next time you prepare the mediation brief and discuss advocacy strategy with the client, ask yourself and the client whether there are any intangibles that can be exploited or avoided to your advantage.

For more information on this topic, please contact Gary Caplan.

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