25 Feb Getting The Most Out Of Your Mediation
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Every choice has its consequences. My parents did their best to instill this idea in me at a very early age. Years of their lectures (and all the time I spent reflecting on my own choices while growing up) have taught me that it’s important to think twice or even three times or more before acting. If we consider the possible consequences of our actions, we can make better informed choices and spare ourselves a lot of trouble and regret. This is certainly true for lawyers who are handling a case.
When you are handling a matter, you are faced with many choices including if and when to schedule a mediation and how to approach this important meeting. Understanding your file, your client and your opponent will help you as you consider your options and the effects of your choices, both positive and negative.
Mediation is not a one-size-fits-all product. There are endless ways to customize mediation to fit the needs of your client and the case to ensure a better chance of achieving your desired result. In this paper, I want to take you through some choices you’ll need to make during the lifespan of a file and to help you better navigate the effects of the decisions you make, specifically decisions relating to mediation.
IN THIS POST
3) Preparing For Mediation: Case Management
6) Negotiations
7) After The Mediation – If The Case Hasn’t Settled
8) Conclusion
1) SETTING UP YOUR MEDIATION
a. To Mediate Or Not To Mediate, That Is The Question…
If your file is based in Toronto, Ottawa or Windsor (judicial centres with mandatory mediation requirements) this choice has already been made for you. If your case is not subject to mandatory mediation, deciding whether to try mediation (and if so, when) will be a key moment in the life of your file. As a mediator, of course it’s easy for me to list the many general benefits of these negotiations. Each case (and the personalities involved in it) is unique and there may be perfectly reasonable reasons you choose to forego this step. If you consider some of the positive and negative elements of mediation in the context of your case, it will probably become apparent if it makes sense for you, your client and your file.
Negatives: Mediation can take some time to schedule and coordinate – especially when multiple parties are involved. Canvassing availability for dates can be frustrating. Once possible dates are identified, the next challenge will be for all parties to agree on a mediator. Whether you decide to hire a retired judge or a roster rate mediator, an expense is involved and there is no guarantee that the session will produce a desired result. If you’ve cleared these hurdles, you and your client have now agreed to try to resolve your case with your opponent(s). Is your client the kind of person who needs their day in court to feel validated? If so, why waste your time, effort and money when inevitably you will need to go in front of a judge? If you have a choice to mediate, only mediate when you are ready and able to mediate with purpose.
Positives: Although there are challenges to getting to mediation, if you can overcome them, the mediation process has many benefits. First, there is a potential for future savings if you can settle a dispute before a final court ruling. Since mediation can happen at any point in a lawsuit, the time and costs associated with mediation is only a small fraction of what it ultimately takes to prepare for trial. Second, unlike a trial, mediation is flexible and allows parties to design the process to suit their specific needs and circumstances. Third, at mediation your client will have an opportunity to make a decision instead of handing that power over to a judge and/or jury. It’s a step outside of the adversarial litigation process to attempt to craft a mutually agreeable settlement. Clients will be able to participate directly in their case and have the power to determine whether they are satisfied with a negotiated result. Since humans are hardwired to avoid risk, the certainty that mediation can provide is quite appealing.
I am certainly not suggesting that all cases will or should settle at mediation. Nevertheless, as few as two per cent of all civil cases do not resolve at some point prior to judgment or verdict. To my mind, the real question is not really if, but rather when. Even if a mediation does not produce a settlement, it should be considered productive if the parties walk away with a better understanding of the information present. This understanding may even help parties determine what is needed to achieve a settlement at some later date.
b. Timing Is Everything: Pros and Cons Of Mediating Early vs. Closer To Trial…
The question of ‘when’ to mediate is another important choice.
Early – Choosing to mediate a case in the early stages of litigation has many upsides. Litigants can avoid a long and costly process that consumes much time and energy. They can also better understand the other side’s perceived value of the case and what supporting evidence may be of value to either side. The downside of an early mediation date is the dearth of information available in early stages of a lawsuit. For example, a lawyer representing a plaintiff making a personal injury claim may not have a full understanding of the plaintiff’s injury until many years after the date of loss.
Close to Pre-Trial – Mediating at this stage allows you to avoid risky pre trials. Some people may be reluctant to resolve their case if they believe a judge will express strong opinions in their favour. That said, it is important to remember that your pre-trial judge will not be your trial judge. If, on the other hand, a party is not so confident in their position, they may be motivated to attempt to find resolution before a judge hears their case and expresses opinions against their position. While pre-trials are supposed to help parties resolve their lawsuit, they frequently leave parties further apart and the prospect of settlement becomes even less likely.
Close to Trial – This is the ‘go-or-no-go’ mediation. When you schedule a mediation at this stage, there is usually an honest effort from all parties to resolve the case ahead of a risky trial. If people remain stubbornly entrenched in trial positions, however, it can seem easier to keep going than to turn around. Moreover, by this point, a client will have already sunk a lot of time and money into getting their case trial-ready. As Macbeth said, “I am in blood Stepped in so far that, should I wade no more, Returning were as tedious as go o’er.”
2. PICKING THE RIGHT MEDIATOR: EENY, MEENY, MINEY, DON’T.
Mediators all bring something unique to the table. Each has certain strengths. Hopefully these strengths will become apparent over the course of a session. But some strengths can be identified well in advance and could weigh on your mind when deciding which mediator to choose. In other words, don’t randomly pick a mediator. Considering the following:
a. Cost
What is your price range? Should the cost of the mediation be proportionate to the value of the claim?
Senior: Are you and your client prepared to pay $5,000+ for a full day mediation? If so, you can benefit from hiring someone who will have a great understanding of complex legal issues and years of experience and exposure to the law. If your case does not require this level of experience, then you probably do not need a mediator of this calibre. It would be like wearing a tuxedo or a ball gown to watch a hockey game.
Intermediate (been around the block): These mediators fit into a broad category where prices range from $1,200 to $5,000 per day. Most of the mediators in this price range will have a solid understanding of certain subjects and a good record and reputation for helping people resolve claims.
Junior (roster-rate): These mediators are the most inexpensive ($600 per half day) but low cost should not be equated with low quality. Some of these mediators may be transitioning from careers as lawyers and want to offer a competitive price to build their clientele. Others may be individuals who took the alternative approach to alternative dispute resolution and went straight into the study and practice of mediation (like myself). If you are appointed a mediator through the MMP roster, a potential downside is that you might get a mediator who lacks subject matter expertise in a specific area. That said, they may have the process skills to facilitate a successful session.
b. Styles
Facilitative: This style refers to the ‘soft touch’ mediator: a process-oriented person who wants the parties to come to their own conclusions. The advantage of this style is that your client will make a decision based on their own understanding of the merits of their case. This type of mediator will be familiar with different dispute resolution techniques and encourage parties to continue trying to work together. A possible disadvantage is that this facilitative style may not work for a client who needs a reality-check on what his or her case is worth and who is unwilling to budge in his or her opinion.
Evaluative: This is the ‘authoritative’ mediator: a judge-like listener who will likely tell you what your case is worth based on its merits and the arguments made by each side. If the parties respect the opinion of the mediator, it could influence parties to resolve their case. This style is problematic if a mediator gives an opinion too early, however. If they evaluate the case before identifying how people see their case, they may aggravate one or more parties and the mediation could terminate before people explore the prospects of settlement. Imagine a mediator injecting a mediator’s proposal without knowing that it would be accepted by any party in the lawsuit.
Transformative: This mediation style is a mixture of facilitative and evaluative. These mediators will help parties navigate the process and only express an opinion on the case as a last resort.
c. Other Qualities
Qualities you should expect and get…
Rapport: A mediator who develops a relationship and creates a sense of comfort with the parties. The parties will be more likely to share the information needed to achieve a settlement.
Creativity: A mediator who approaches barriers to settlement from many different angles. Moreover, if a case is going to resolve, a mediator should use creativity to see if the parties can make the deal even better.
Patience: A mediator should be absolutely the last person to give up, if at all. While you may only book a half day mediation, your mediator should continue to work on your case until it reaches resolution.
d) The “Approved Mediators List”
When creating a list of mediators to send to opposing counsel, you should not only have your own client’s needs in mind. Identifying mediators who may be best positioned to help the opposing party move towards a settlement is good for everyone. For example, a senior defence lawyer recently explained his process of mediator selection with me. He told me about a recent experience where the plaintiff’s counsel forwarded him their list of mediators. He noticed that not one of them was female. The defence lawyer had learned at discovery that the plaintiff was a female immigrant and speculated that she may feel more comfortable with a female mediator. If the ultimate goal of mediation is to create an environment that provides the best chances for resolution, the mediator list should be suited to the case and the parties involved.
III. PREPARING FOR MEDIATION: CASE MANAGEMENT
There’s an old saying that an ounce of prevention is worth a pound of cure. Let’s apply this idea to case management. Doing some advance planning can save so much time down the line. I would estimate that about 90 per cent of the time if a case fails to resolve at mediation, it’s because one or more parties are unprepared. The other 10 percent of cases involve people who over prepared and have discovered that disbursements are eating into the value of the case.
Channel your inner Goldilocks and prepare just the right amount. How much is the right amount? An hour of case management will help you to decide.
When parties agree to use a Cooper Mediation mediator, the mediation request comes into our assistant’s inbox. She will typically see an email thread where lawyers and assistants are already canvassing dates for mediation. Deciding on a date before you plot out what all sides need in order to get to a point where they can reasonably negotiate a settlement will not serve anyone well.
Creating a checklist will help determine what is needed and when it will be available. For example, here are some questions for defence counsel to consider:
-Are employment records necessary?
-Do you need clinical notes and records from family doctors or treating doctors?
-Do you require a list of medications and/or treatments?
-Do you have witness evidence, will-says, affidavits of witnesses?
-Do you need to get an accident reconstruction/engineering report?
-Do you need the plaintiff to get any medical expert reports?
-Will an economic loss report help? Or is it better to make some assumptions and use a calculator to do value calculations?
-Will an occupational therapist/functional assessment report be needed?
-What is the status of any/all collateral benefits (AB, LTD, CPP)? Should AB or LTD be in on the call?
-Will a contested injury require the defence to get a responding report?
If the defence answers yes to any of these questions, the next question is: How long will it take to get the plaintiff assessed or any other documentation or reports? If all of this is going to take eight months to compile, why would you schedule a mediation in four months just because everyone is available?
An hour of case management now will set you up to do just the right amount of preparation for mediation. It could save you hours of work on your file leading up to the mediation, and after when it doesn’t resolve.
Of course, you do have to find time to schedule this call and will also need excellent organizational skills to take full advantage of this hour. Some people may work better with the pressure of tight deadlines. If that is the case, you should hope that all parties involved operate the same way; otherwise you will end up with an unprepared party on the day of the mediation.
When you book with Cooper Mediation we offer a free hour of case management. If, for whatever reason, you decide to mediate with another mediator, you will simply be charged using an hourly rate for our time.
IV. MEDIATION BRIEF
You will have several more choices to make while creating your mediation brief.
a. Who is Your Brief Intended For?
Is your brief intended for the mediator? The mediator is looking for the facts, context and law. If we can better understand your arguments, we can better reinforce them during the caucus phase of the mediation.
Is your brief intended for opposing counsel? Probably not, unless you are responding to their brief on a certain issue or weakness that should be addressed. They likely have a good understanding of all sides of the case.
Is your brief intended for the opposing party? This is an opportunity to set out your party’s view of the case and to have the opposing party read it without having filters applied by opposing counsel.
Is your brief intended for your client? It could be helpful to explain things to your client; but keep in mind that if you do too good a job, you may have some expectation management problems later on.
b. Is Your Audience Specific or Broad?
Specific: As you can see, there are advantages to tailoring your brief to an audience. If you have identified who you believe to be “driving the bus” on the other side, you can work on helping them understand your perspective of a case. If you have misinterpreted the dynamic on the other side, you will have missed the opportunity to motivate the person/people you needed to.
Broad: Writing for a broad audience allows you to cover all of your bases. That said, you want to be careful not to go so broad that each individual person reading the brief feels like it doesn’t apply to them.
c. Technical or Narrative
Balance (technical vs. narrative): Once you have identified your audience, you should consider how to achieve a good balance between the technical information you want to convey and the narrative you would like to tell. The mediator, as the newcomer to the case, will need some technical information to understand context. That may be as technical as you need to get.
Sticking to the story (narrative heavy briefs): After providing a brief technical overview, perhaps you begin to tell a narrative that describes the impact of the event/accident on the plaintiff. People love a good story. The key to that sentence is that it is a ‘good’ story. This is not to say that supporting case law, clinical notes and records and expert opinions are not important, but a story should have a flow that is easy to follow. Instead of incorporating an entire document into your brief and breaking the flow, consider embedding citations and excerpts into your writing.
Is less more or is more more (technical briefs)?: If you are preparing a brief for a case where you have a technically strong case (on the law and evidence), you may have 10 reasons why an opposing party’s position may not succeed. Should you list all 10 or should you pick your top three? Listing all 10 will convey that you have considered everything, but you risk losing the reader’s attention or diluting your best arguments. By listing your top three arguments, you can demonstrate the strength of your case while increasing the chances that the arguments will be read and received.
For example, if you are defending a case where a plaintiff is reporting lower back pain as the result of an accident, you will undoubtedly want to stress that the plaintiff had visited their family doctor complaining of lower back pain 20 times in the three years leading up to the accident. When drafting the brief, do you methodically reveal all twenty back pain entries for dramatic effect, or do you describe the one involving the greatest severity and note that there are 19 more if the reader would like to see.
What about the reverse scenario? If a plaintiff has no history of back pain in the three years prior to an accident and they attend the doctor on the day after the accident and 20 more times in the three years following the accident, it’s a significant part of the story. While 20 back pain complaints and treatments are suggestive, you run the risk of the reader glazing over the point of the argument as boredom set in. An alternative is to list the first visit, the one mentioning the greatest severity, and the total number (again with reference to all 20 in a tab).
Remember to factor in the sophistication of your intended audience. If you are writing to an unsophisticated plaintiff and plan on focusing on the technical aspects of the case, you must explain things in simple terms. If a person has to work hard to understand what you mean, they may give up. If you are writing to an experienced insurance adjuster, they may appreciate the complex technical arguments.
Ultimately, there is no right or wrong way to prepare a mediation brief; but every choice has consequences. Be sure to take time to consider your audience and identify the right balance between preparing a technical and narrative brief.
d. Timing
Close to mediation. When you deliver your material just days before the mediation, you can count on the other side to read it, but that’s about all they can do with it. A few days (and it’s frequently only one day) is not an adequate amount of time for people to fully absorb and react to what they have just read. For example, if you are an insurer and you receive news that a person has recently gone off work due to the alleged injuries they sustained in the subject accident, that could have bearing on your assessment. Unfortunately, a short time frame between receiving the brief and attending the mediation does not provide enough time to speak to the necessary people and make adjustments to reserves. If you want to influence an insurer, you should serve your brief several weeks (even a month) in advance of a mediation.
If, for example, you are a plaintiff who has just read the defence brief and heard for the first time that you have challenges with your case, you may come to the mediation still steaming and spoiling for a fight. A few days will likely not give the plaintiff enough time to discuss these challenges with their lawyer in preparation for a mediation.
Perhaps you are trying to surprise the other side with a real smoking gun at a crucial moment in the life of a file. For example, if the defence serves their mediation memo with surveillance showing the plaintiff has not been entirely forthcoming with their counsel, it will likely have a significant impact on the recommendations the plaintiff lawyer will make. Nevertheless, a few days may not be enough time to bring their clients expectations down to a reasonable level.
If your opponent has delivered their brief first, the advantage of submitting a last minute brief is that you will have a chance to respond to it. This gives you an opportunity to plug any holes or answer any questions in their brief.
Far in advance of the mediation: When you send your brief well in advance, the opposing side will have a chance to read and digest the material you have given them. Clients will be able to discuss issues with their counsel and everyone may be more prepared to resolve the case.
There is such a thing as “too far” in advance. Reports obtained for the purpose of mediation should still be relevant. For example, a medical report commenting on a plaintiff’s need for funding of treatment may be irrelevant once they have actually completed the treatment. Perhaps a solution would be getting an update to a report as close to delivering the brief as possible.
V: OPENING STATEMENTS
When the big day finally arrives, it will be important to make good first impressions and start the day off right.
a. Are Joint Openings / Plenary Sessions a Good Idea?
No:
-If previous dealings or correspondence suggests that parties can’t get along, you may want to rethink doing a plenary session. It’s almost always counterproductive to start the day with an explosive interaction. If you have a hunch that someone is going to blow up during a plenary session, please let the mediator know so that they can adjust the process to avoid it.
-If all parties have a solid understanding of the case, this session may be of little value to the potential of resolution and a waste of time better spent negotiating.
Yes:
-On the other hand, perhaps you anticipate things getting heated or emotional but you think it will be good for that emotion to come out right away. Gathering people together for a group discussion provides that platform and your mediator should be trained to diffuse the situation as needed.
-If you have not worked with or met the opposing counsel or party, a joint opening or plenary are great opportunities to get to know each other.
-Perhaps verbal communication skills are your strong suit. This is a perfect opportunity to impress.
-If there is an argument or concept you perceive the opposing party does not understand, it may be easier to explain it directly than through caucus.
-Sometimes people need to hear things twice before it sinks in. For example, if you are taking a hard position on a case because you believe the other side has serious challenges, it is usually a good thing to lay that out in an opening. When the mediator discusses these challenges in caucus, it will not be the first time an opposing party hears it. Moreover, the mediator will not be the first person to communicate information that might be difficult to swallow.
Potential hybrid solutions: Parties may want to get together in the same room to hear the mediator lay out a case overview in a neutral fashion based on the briefs.
b. Style Choices
Your opening statement gives the opposing party a good idea of where the day is headed. What you say is important, but how you say it also communicates a great deal. Your style could put the opposing party at ease and set the stage for cooperation, or scare them into settling quickly rather than facing you at trial. Conversely, the opposing party may take your softness as an urge to please or be turned off by a harsh demeanour.
Tough guy: This is the argumentative, nitty gritty, disagreeable approach. Playing the role of the tough guy will give your opponent an idea of who and what they are up against at trial. It can sometimes come across as intimidating and could possibly motivate the other party to want to avoid a trial. If the case doesn’t resolve, then you are already in character for the role you will need to play at trial. Sometimes this type of behaviour can bring out emotion from the other side that may be useful in evaluating how they will make as a witness at trial. This is also an excellent approach if you have no intentions of resolving the case at mediation.
Kill them with kindness: This is the smiling, curious, complimentary, “keep your friends close and your enemies closer” approach. If the desired outcome of the mediation is resolution, then you may find this to be the more effective approach. Since humans are predisposed to devalue information and proposals coming from people they consider to be an antagonist, portray yourself as a good guy. By using simple language, sympathizing with the other side and acknowledging points of agreement, you can charm them and disarm them.
Hybrid (firm but fair): This approach allows you to point out challenges with the opposition’s case and highlight points of disagreement, while still keeping a positive attitude that encourages everyone to work through these issues. This style keeps a focus on the law and doesn’t personalize any arguments.
Hybrid (good cop/bad cop): As a mediator, I usually encourage everyone who is at the table to speak even if it is just a few words. In this hybrid approach, you and your client can each take on a role: one plays tough while the other is kind.
People respond to communication styles differently. Remember, you are working with, not against, your opponent to resolve the case. Tailor your approach to best fit what you are trying to achieve.
VI: NEGOTIATIONS
Having a strategy for negotiations is always wise. Yet even with a plan, the roadmap to a settlement can take some unpredictable twists and turns. Flexibility is essential to make the most of negotiations.
a. Who Should Go First?
In the personal injury world, the plaintiff typically makes the first offer to settle but there is no rule written in stone. Instead, consider the advantages and disadvantages of choosing to make an offer to settle first or second.
Making the first offer in a negotiation allows you to anchor your position and set out a bargaining zone. This anchor can be very useful if you have a good understanding of the possible range of settlement and your negotiating partner does not.
That said, there is a risk in giving away some of the bargaining zone if you make an offer that cuts into your opponents assessment of a possible range of settlement. You may be showing your cards too early in the mediation.
First offers have bearing on the level of satisfaction in the overall negotiation and the chances of resolving outstanding issues. One study found that parties that made the first offer felt more anxious than those who didn’t and, as a result, they were less satisfied with the outcome. Interestingly, despite feeling less satisfied, those who made first offers achieve better results in strictly economic terms.
Knowing your client well can help you to decide whether to go first or second. If they value only the economic outcome of the deal, make the first offer in order to anchor the negotiation in your favor. If they value satisfaction with the negotiation process more than an exact outcome, it may be preferable to avoid the stress and anxiety of making the first offer.
b. Where to Start?
The fear of going in too low often leads to the error of going in too high. Applying the “you’ll never get it if you never ask” principle may produce a pleasant surprise, but there is a far greater chance of offending your negotiation partner by asking for a number outside a realistic range of settlement. There is even a chance this kind of opening offer will end the mediation prematurely.
On the other hand, starting very close to where you hope to end up presents its own challenges. You may have undervalued or overvalued your case in the eyes of your opponent while not leaving yourself enough room to move during negotiations.
There is a workaround. By using your mediator and whispering in their ear, you can reveal that your perceived position may not be your actual position. There are different ways for mediators to facilitate movement without lowering the ceiling or raising the floor.
c. Broken Down Numbers Or All Inclusive?
There are many advantages to breaking down offers into various heads of damages, costs and disbursements. First, it gives a rationale for your numbers and shows where you believe there are strengths (or weaknesses) in your case. This type of offer will help to highlight areas of agreement. As small as they may be, these agreements will demonstrate that you have the beginnings of a comprehensive agreement and promote the idea that the parties are capable of working together.
At some point in a mediation, it is typical for parties to move into all inclusive numbers. This number totals all damages, inclusive of costs and disbursements. The advantage of this type of offer is that it eliminates the back and forth noise of individual disagreements and focuses on a number that takes all arguments into account. The specific points each side uses to negotiate will likely not line up, but the money might.
d. Messaging With Offers
Typical offers at mediation contain two parts: a monetary figure and a message. Naturally, parties are very mindful when spending money as they negotiate in the direction of settlement. I believe negotiators should spend their words as carefully as they spend their money.
There are four common messages I see used in the world of commercial disputes:
- -If there is an area of major disagreement, it can be helpful to use messaging with content to determine why the parties remain far apart. This message could include facts or evidence relating to law, questions about discounts for contingencies, or concerns about artificially high or low wages.
- -The second common message relates to how many rounds of offers a party anticipates as a tool to assist with expectation management. This message can avoid a potentially awkward moment in a negotiation when one side has reached their destination in three moves while the other was planning for 10.
- -The third message uses dramatic language to signal your party is reaching their end in the negotiation. This message encourages symmetrical movement. It does not necessitate equal movement in terms of gross dollars or percentages, but it does anticipate equal movement if there is hope of achieving resolution. The downside to this language is that it can create the impression that the party delivering the message is in control or has more power.
- -The fourth message is what author J. Anderson Little calls “Making Money Talk.” The amount of movement you make in each round could help your negotiating partner understand where you may be going so they can make their own moves accordingly.
Messages should be made as clearly and plainly as possible to avoid misunderstandings that may hinder deal-making.
e. The Mediation Isn’t Going to Settle…Now What?
There are many reasons that you may want to walk out on a mediation: the offers may still be miles apart after multiple rounds, one side may appear not to be serious about settling, or perhaps something so inflammatory was said that you no longer want to try to resolve the claim. Walking away is always an option. Is it your best option?
Walking sends a non-verbal message and makes a point. While this can certainly be effective, it also has its downfalls. First, the other side may not understand why you left or what message you are trying to convey. Second, you may have closed the channel for future communications. Third, you have already committed to a mediation where all of the necessary people to resolve the case are at the table. Getting them back together prior to court may be difficult.
Whether a mediation was mandatory or voluntary, when someone wants to walk away from a mediation, it suggests there has been a major miscommunication between parties. While this is unfortunate, as long as people have learned something and have a better understanding of the other side’s perspective, a mediation has been successful.
I want to suggest that we take this idea a few steps further. Is there more that can be accomplished at a mediation other than a settlement?
- When you have the ear of the opposing decision-maker, you:
- -May want to explain your perception of the weaknesses in their case or the strengths of your case.
- -May want to explain how you will address the weaknesses in your case that were pointed out by the opposing party.
- -May want to explain why you cannot resolve the matter.
- -May want to ask questions of the opposing party to gain information to help you resolve the matter going forward or to gain a better appreciation for the opposing party as a potential witness.
- -May want to ask for documentation to address gaps in your understanding of the matter that may lead to settlement down the road.
- -Can certainly use the opportunity to gauge the likability of the opposing party and the competence of their counsel.
- -Should leave the mediation with more information and a better understanding of the matter and the impediments to resolution.
You could also make a list of documents still needed, agree on an expert to hire, move to trial coordination, sign a partial agreement or an agreement in principle, or set a date for a follow up call or meeting.
Are there downsides to sticking around? Absolutely – it could be a waste of time. People have to be willing to have these discussions or it will be like talking to a brick wall.
VII: AFTER THE MEDIATION – IF THE CASE HASN’T SETTLED
If at first you don’t succeed, should you try again? Yes! But how?
a. Case management
Before you decide what to do, you will need to consider the answers to some questions:
-Did anything change during the course of mediation? What new insights do you have? Are there new time pressures? Do you need to produce anything new?
-Why didn’t the case resolve at mediation? Was it because one or more parties were unprepared? Or were the parties far apart and unable to establish a reasonable settlement range?
If people were unprepared, hopefully an additional hour of case management can help refocus the parties with a goal of revisiting negotiations. These negotiations could occur with further informal discussions, a second mediation or (after) a pretrial conference.
b. Second Mediation or Pre-Trial?
Second mediation: Sometimes settlement discussions may require more time than parties initially booked with the mediator. Extensions are sometimes possible. Nevertheless, if there are outstanding issues, but good indications that a resolution may be within reach, rushing to meet an arbitrary deadline of the end of a mediation session may not be in anyone’s interests. A second session could either achieve a settlement or, at least, reduce the outstanding issues put before the court.
A second mediation also gives you the opportunity to shop around for a mediator with expertise that will help you resolve your case. At a pre-trial, you don’t have that same ability to choose who will hear the parties. Of course, a second mediation requires money, time and coordination in order to get everyone back together.
Pre-trial: Sometimes the only way for people to move from their positions is to hear from a judge. Some judges can help people come to a resolution after listening to the issues at play. If a judge, however, expresses an opinion favouring one party, it can make negotiating much more challenging down the road. Remember, the pre-trial judge will not be the judge at trial.
CONCLUSION
In the life of a case, you’ll need to make many choices. Imagine you’re driving and encountering one fork in the road after another. Do you turn left or right? Where will they take you? Each turn presents consequences but also opportunities. Wouldn’t it be easier if you had a map?
If I can leave you with one last piece of advice when considering how to handle your file, it’s this: make a mind map of decisions that typically need to be made in the life of a case. You know your client has a desired destination and there are many routes to get there. By taking time to understand the value of your case, your client’s needs and those of your opponent, you can make some educated choices about how to get where you want to go without too many detours or dead ends.
ABOUT THE AUTHOR
Logan Cooper joined the Cooper Mediation team in November, 2017 and now devotes 100% of her professional time to mediation. Contact Logan at: logan@coopermediation.ca or (416) 726-1344. Alternatively, you may view Logan’s Online Calendar to book a mediation: www.coopermediation.ca/logan-coopers-online-calendar/.