I chaired the Advocates Society’s second annual Mediation Advocacy Workshop in Toronto. We are pleased to advise that the program will be offered again in 2012 in Calgary, Alberta and London, Ontario. The program materials contained 11 Do’s and Don’ts
which I am pleased to reproduce here with some further comments. I would be happy to discuss any of these points with you.
1. DO meet with your client well in advance of the mediation to explain the process, the role of the mediator, and the range of possible outcomes. Preparation of the client is of key importance.
Understand your client’s objectives, and his or her reservation points. Discuss the tactics, strategies, and negotiating style you intend to adopt. In this regard, it is important to make clients understand the difference between distributive and interest based bargaining. If opening statements are to be used, discuss whether it is more persuasive for the client to make the opening statement rather than you.
2. DO select a mediator that you believe suits the dispute. Mediators differ in style, technique and
approach. Some encourage opening statements, some do not. Some are facilitative and others evaluative. Select a mediator who fits the dispute and can control the lawyers (if that is a perceived need) and the flow of the negotiations.
3. DON’T deliver a mediation brief that simply repeats the pleadings. The brief is an important
advocacy tool that creates first impressions, may serve to set the terms of reference for the dispute, and ignites creative solutions. Don’t be afraid to disclose previous offers to settle and perhaps general principles that you feel should guide a settlement.
4. DO explore before and during the mediation, process alternatives, if the dispute or all elements of it cannot be resolved. Can some issues but not others be settled in advance of trial? Can some issues be bifurcated and arbitrated or subjected to some other ADR process? Ask the mediator whether a “neutral view” or some other third party opinion is warranted in the circumstances.
5. DO consider when to mediate. Do you really need discoveries? Is the dispute more about legal issues rather than factual ones? There are risks and advantages if you mediate early (e.g. before discoveries) or later, that is just before the setting down of the action. More importantly, there are significant benefits to mediating more than once. As the dispute matures, different perspectives may arise. Don’t make the mistake of thinking that just because the dispute was not settled at the first mediation, the second is bound to fail. There is no harm in mediating after the pre-trial and just before the trial.
6. DO consider whether experts or other non-parties should be present in the mediation. Also consider whether it is sensible to deliver draft or final reports in advance of the mediation. These “non parties” may be helpful in providing much needed information, client support, and perspective. Their presence may serve to facilitate dialogue.
7. DON’T focus on the bargaining behaviour of the other party. Concentrate instead on the efficiencies of settlement. Think about a range of acceptable outcomes. As most of you know, I urge parties to view dispute resolution from the perspectives of efficiency, risk, and “insurance” that is the cost or price of certainty. Don’t forget to think about intangibles (see my Key # 1).
8. DO consider, in a multi party negotiation, whether a Mary Carter, Pierrenger, or like agreement is achievable in the circumstances where an overall settlement cannot be achieved. It makes sense to discuss these with opposing counsel in advance of the mediation to see which of these techniques might work.
9. DO use the mediation process as a tool or opportunity to fashion Rule 49 or other offers, should the
mediation not succeed.
10. DON’T be afraid to adjourn the mediation if more information is required or if the client appears uncertain about settling.
11. DO include the Minutes of Settlement, where appropriate, recitals which set out the representations made by the other side and upon which you relied in entering the settlement. The Minutes can state that the recitals are true, and should they turn out not to be, the consequences of same.
If in the course of the mediation your instructions change, or you change your view of risk, make sure that this is expressed in writing to the client. Some lawyers insist on written instructions when there appears to be a change of instructions.
If you have any questions about this article, please do not hesitate to contact Gary Caplan at Mason Caplan Roti LLP.