This is the first of a three-part series in which I share practical advice based on my experience as a mediator and mediation lawyer (specifically, Settlement Counsel) in different practice areas. We begin with the most common of non-unionized workplace disputes: Wrongful Dismissal. However, much of what follows is relevant to other labour and employment disputes. I revisit common approaches many of us “employ” as counsel to better maximize settlement prospects at mediation.
Pre-Litigation Mediation
Where I practice, in Toronto, there is a positive trend to schedule mediations early in a proceeding, after or before the close of pleadings. However, mediating even earlier, before commencing an action, provides both sides with a bonus: It avoids choosing between protracted negotiations, which can be frustrating for clients, or quickly starting a legal proceeding, which doesn’t guarantee a quicker resolution, increases cost and polarizes the parties. A pre-litigation mediation (i.e., within weeks of first contact between counsel) avoids months of negotiations or total silence. Better still: Book a mediation date and keep negotiating instead of waiting until the mediation date. At worst, this can narrow the issues, leading to a shorter mediation. At best, a quick settlement can be reached pre-mediation.
Who’s the Boss?
For employment mediation to “work” in most cases, a representative of the employer needs to be present. In Ontario, mandatory mediation rules also require personal attendance of parties unless the court orders otherwise. However, even when present, the employer representative may not be a decision maker with absolute authority (although the absence of an overly aggressive or antagonistic decision maker can be beneficial in the rare case). I have seen more employment disputes fail to settle at mediation due to a lack of authority than any other reason. Thus, it’s best to err on the side of the insisting that the ultimate decision maker appear in person where the mediator can interact with them, and where difficult decisions will be made instead of deferred.
Would you like some jurisprudence with that mediation brief?
I suggest you answer “yes”. Mediation briefs without case law, references to cases, or hyperlinks to decisions are increasingly common. At court, we always include law in our written materials because we are trying to persuade a judge. Yet, at mediation, when judges are not present, it’s easy to overlook the fact that decision makers, in the form of opposing parties and counsel, are still involved -- and they still need legal persuasion. Mediators can better help participants who have fully informed one another (and themselves) of both sides of the legal argument.
Mitigation Matters
The employee’s duty to mitigate is an issue in most wrongful dismissal cases. Yet mitigation documents are sometimes included late, or are incomplete. Employee counsel should include in their briefs, if not earlier, completed job search charts with full particulars and any supporting documents. If mitigation income has been earned then come to mediation with relevant paystubs, T4s, and job offers/contracts. On a related issue, having a statement of any EI benefits received will expedite settlement discussions.
Jointly Speaking
I am slowly seeing a (lawyer initiated) retreat from caucus-only employment mediations. Regardless of where one stands on the utility of joint sessions, with all participants present, prior to caucusing, if lawyers wish to make opening statements then I recommend: 1. Remembering that you are attempting to persuade the opposing side - and not the mediator (or the judge who isn’t present). 2. Performing a quick and concise summary of your position (maximum 10 minutes). 3. Avoiding personal attacks. 4. Using conciliatory language consistent with mediation. 5. Being open to your client speaking and answering proper questions.
Working Overtime
In much of Ontario, it’s customary for wrongful dismissal cases to be scheduled for one half-day (usually, three hours). Often this is sufficient, but, just as often, more time is required. Therefore, I suggest booking a full day, or ensuring your mediator and the other side can stay beyond three hours -- or just starting a half-day mediation earlier in the day (i.e., 9:00 a.m., instead of 10:00). That way, time is on your side and you increase the likelihood of a deal.
About the author
Mitchell Rose is a mediator, lawyer and settlement counsel with Stancer, Gossin, Rose LLP in Toronto.