When it comes to mediation, one thing that interests me is the different ways that parties and their lawyers prepare (or don’t prepare) for mediation. The failure to prepare properly is often the difference between a successful mediation and an unsuccessful one.
Good mediators are highly skilled at assisting parties in reaching resolution. That said, the process does require that the parties and their lawyers put in some effort, both before and at mediation.
When I am mediating, I am often shocked at the lack of time that is spent on mediation briefs. It is important to remember that the briefs will be the only information your mediator has about the case before everyone arrives. It is your first opportunity to make an impression on the mediator (and an opportunity to make one on the other side, too). And since most employment-related mediations are booked for three hours, there is not a whole lot of time to explain your case to the mediator.
For that reason, my practice as counsel has always been to put together a detailed, persuasive brief that includes documents that support our case. Surprisingly, some counsel simply cut and paste from their pleading and submit that without any further thought.
As a mediator, I want the parties to submit concise but detailed briefs that will allow me to understand the case, the strengths and weaknesses of each position, and the evidence that exists. When the parties do this, I do not have to waste a lot of time getting them to explain the case to me, and I can focus my efforts on trying to help them reach a reasonable resolution.
It is far better to prepare your case thoroughly. As the old saying goes, the best way to achieve peace is to prepare for war. Similarly, the best way to achieve a good settlement is to prepare for trial.
Make it easy: To begin with, I always encourage counsel to provide a summary of key facts at the outset. If the amount of notice is an issue, then put the core factors right up front, rather than burying them within the text so that I have to search for them. Do not waste time inserting facts that are irrelevant or making arguments that are destined to fail. Know your mediator: If she is someone with expertise in employment law, you do not have to explain the legal framework unique to employment law such as the Bardal factors, or reference fundamental legal principles with supporting case law.
Identify the weak points in your case: It is important to put your best foot forward, but also to identify and address any weaknesses in your case. It is always baffling when I receive the plaintiff’s mediation brief and conclude that the only real issue in an employment case is the appropriate notice of termination period, only to read the defendant’s brief and discover that the dismissal was for cause and there is compelling evidence demonstrating the plaintiff’s misconduct. Rather than force me to confront the plaintiff and their lawyer during mediation in order to understand how they will meet these allegations, it would be far more effective to provide that information in advance.
Come with a realistic perspective: The other common mistake is that parties often come in with completely unrealistic views of the strength of their case and the prospects for settlement. In many cases, that is the fault of counsel who prefer to have the mediator deliver the bad news than to prepare their clients properly. In some cases, plaintiffs read the Statement of Claim and conclude that the numbers set out therein are what they are entitled to. That makes it almost impossible to get them to consider a reasonable offer of settlement. Similarly, some defendants come in assuming that their decision to dismiss for cause is beyond question, and that the plaintiff is not entitled to anything.
Counsel must take the time to explain the law to their clients and ensure that they understand the strengths and weaknesses of their case, as well as the likely results if they do proceed to trial. Any potential settlement should be measured against the likely results of the trial. As the saying goes, any party in negotiation should consider their BATNA (Best Alternative To a Negotiated Agreement); in the context of litigation, the options are either to settle or to proceed to trial. If either party has an unrealistic view of the likely outcome of trial, they will not be willing to accept a reasonable offer to settle.
Come prepared: Counsel should also come to mediation with draft settlement documents. One of the frustrations of mediation is that after spending hours working towards a resolution, and ultimately achieving one, the parties then have to spend hours more drafting and negotiating the wording of the documents. If an outline of the agreement is ready, that can save a substantial amount of time. In many cases, it will be possible to introduce the draft settlement documents relatively early and then work with them in order to conclude the settlement.
Don’t wait for mediation to settle: Lastly, many lawyers have stopped trying to engage in settlement discussions prior to mediation which is, in my humble opinion, a mistake. While mediation can be incredibly effective at bringing about a resolution, in many cases counsel can achieve a resolution before mediation and save their clients the cost of preparing for and attending at a mediation hearing. Instead, that money can be used to facilitate the settlement.
Acting as a mediator has allowed me to learn quite a bit about the negotiation process, and one thing I have learned is that preparation is crucial in order to allow the parties to reach a reasonable resolution.
About the author
Stuart Rudner is an employment lawyer and mediator. He has been actively involved in the OBA for almost 20 years, and is currently a member of Council and on the Executive of the ADR Section and the Law Practice Management Section. Previously, he has chaired of the Labour and Employment Section and the Young Lawyers Division. You can reach him at stuart@rudnerlaw.ca or 416.864.8500. To learn more about his firm, Rudnerlaw, go to www.rudnerlaw.ca. For information about his mediation practice and availability, go to www.rudnerlaw.ca/mediation or call Janis Buckley at 416.864.8504.
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