A Mediator’s Pet Peeves – Part 1

Written by litigator and mediator Irvin Schein and originally published at irvinschein.com. 

If you are a party to litigation in Toronto, Ottawa or Windsor, you’re going to find that mediation will be required before a matter can proceed to trial. In other Ontario jurisdictions, mediation is available, and usually advisable, but it is not mandatory.

Either way, Ontario litigants are likely to be involved in mediation in some point during the process. A mediation is simply a settlement meeting presided over by a third party neutral who has no decision making power but who has been trained to assist parties to resolve their dispute.

In addition to my litigation practice, I have been working as a mediator for the last two years. As a counsel representing clients at mediations, I had developed my own habits, practices and tendencies. My exposure to the approaches taken by other lawyers was limited to my observations of the lawyers across the table from me at each mediation.

As a mediator, I have been exposed to much more in terms of the way lawyers conduct mediations on behalf of their respective clients. It has become very clear to me that in many cases, parties could achieve better results if they and their lawyers adhered to some specific rules.

In my view, the first rule that must be followed in every case has to do with preparation. There is simply no substitute for proper preparation for a mediation just as there is no substitute for proper preparation for any other type of court proceeding. A lack of preparation on the part of either party is a serious impediment to success, and therefore a major pet peeve for mediators.

Your counsel will prepare a mediation brief on your behalf and send it to the mediator and to opposing counsel. The purpose of the brief is to present your case in the most positive light possible. Normally the brief will include some reference to the legal basis for your claim or defense and may include copies of documents which support your position.

Hopefully your counsel will review a draft of the brief with you before it is submitted, at least for factual accuracy. Whether you see a draft in advance or not, you should definitely make a point of reviewing the brief submitted on your behalf before the mediation.

Even more importantly, you should be reviewing the brief submitted by the opposing side. I am amazed at the number of times parties that show up for a mediation with very little understanding as to the other side’s position. I cannot understand how anyone can formulate a view as to the strengths and weaknesses of one’s own case, and the probabilities of success or failure, without a thorough understanding of the position being taken by the opponent and the basis for it. You do not want to be hearing about the other side’s position, and the evidence that is going to be put forward to justify it, for the first time at the mediation itself.

Finally, and for the same reason, you will want to obtain from your lawyer, before the start of the mediation, a candid assessment of the case and the range of settlement options to be considered. You will want to understand the range of outcomes reasonably available to you at trial, and the probabilities of obtaining results along that spectrum. For example, in a claim for $100, you may be told that that you have a 10% chance of obtaining nothing, a 10% chance of obtaining $100 and an 80% chance of being awarded $50. In such a case, obviously, the most reasonable settlement result would involve a payment to you of $50.

The difficulty is that the defendant may not see it the same way. He or she may feel that he or she has a 70% chance of walking away from the case without paying anything and only a 30% chance of paying you as much as $50. And that, of course, is why we have lawsuits and mediations. The role of the mediator is to try to persuade the parties to agree to a result that bridges that gap.

The likelihood of a mediator being successful in doing so is directly related to each party’s understanding of the differences between the two positions, among other things. That is the essence of the preparation that is required.