Articles 2020

The use of the joint session in mediation has been a hot topic of study and debate in recent years. I have weighed in on the discussion. In June 2015, I questioned whether the joint session was a help or a hindrance and then in December 2015 I revisited the debate to offer my thoughts on why the joint session remains an important part of the mediation process.

In addition to practising as a mediator, I regularly attend mediations of civil disputes as Settlement Counsel – a lawyer who settles cases through negotiation as early as possible, rather than gradually preparing them for a hearing on their merits[1]. As Settlement Counsel I approach mediation differently than when I was a conventional litigator.

Can the mediator get the job done and close the deal? Sometimes, one or the other or both of the parties are not there with the intention of settlement. You can only lead a horse to water; you cannot force it to drink.

In this fourth article, I will discuss how mediation parallels many of the philosophies found in the legal culture of cooperation.

Unlike my previous posts, this one is not intended to be funny (whether or not you actually found the other posts to be funny is another matter). Nevertheless, I encourage you to read on as the story and opinions that follow could save you money, time and grief and may even lead to deep personal fulfillment -- although I am pushing it with that last one. At the very least, it is a refreshing change from reading depressing news stories or watching another cat video.

Litigation is a lengthy process that often takes litigants to the point of exhaustion. Yet while lawyers are accustomed to a file lasting months, or even years, litigants usually are not. Lawyers are responsible for remaining objective, and not getting emotionally involved in the dispute. For litigants though, it is far too easy to become fully embroiled in combat, with each new step re-fueling the initial anger that brought litigation forth in the first place.

In this third article, I will discuss a second legal culture of cooperation that has emerged as a result of a changing legal landscape, that exists alongside the traditional adversarial one.

In this article, Ian R. Mackenzie offers insight into McClintock v. Karam, 2015 ONSC 1024, relating to med-arb and bias.

In this series of articles, I will explore the interesting cultural shift occurring within the legal profession in Ontario between the adversarial norms of litigation, and cooperative processes such as alternative dispute resolution. In this second article, I will discuss how adversarial legal culture forms a critical component of a lawyer’s professional identity, and what philosophies are embedded in our legal culture as a result.

Mediators typically present an agreement to the participants to sign prior to commencing the mediation. The agreement sets out the ‘ground rules’ for the mediation. Here are three things you must know about mediation agreements in Ontario