02 Dec Navigating Mediation: The Power of ‘Kitchen Table’ Discussions vs. Formal Submissions
What is the difference between submissions at the mediation table and discussions at the “kitchen table”? Should the “kitchen table” style of discussions ever be employed at the mediation table?
I mediated two matters recently which might be instructive and will be discussed below.
What Are Kitchen Table Discussions at Mediation?
“Kitchen Table Discussions” refer to informal, collaborative conversations during mediation where parties come together to explore the underlying facts and evidence of a case, rather than simply presenting their arguments. This technique emphasizes open dialogue. Each party can express their views and ask questions in a more relaxed setting. The goal is to create a more productive mediation experience by fostering understanding and identifying common ground.
By creating an environment where parties feel comfortable discussing the nuances of their cases—without the pressure of formal submissions—mediators can help clarify misconceptions and highlight critical aspects that may have been overlooked. This collaborative approach encourages participants to engage with the evidence more thoughtfully. Ultimately, it can guide them toward more informed decisions and potential resolutions.
Kitchen Table Discussion: Case 1
The first case involved a highly-educated and well-paid professional who suffered what the defence conceded was a mild traumatic brain injury. The assessments of economic losses were wildly disparate. Over $3,000,000 by the plaintiff’s expert and $200,000 by the defence expert.
As I reviewed the briefs and the reports of the experts, it struck me that there was a fundamental misunderstanding of the evidence of the plaintiff in terms of their career path and earnings potential. I spoke with counsel for the plaintiff in advance of the mediation. I asked the lawyer to allow me to pose some questions to the plaintiff that would allow them, with the assistance of their counsel, to review the facts and anticipated evidence. I invited counsel for the defence to interrupt this process and ask questions with a view toward getting a better understanding of the essential facts and evidence surrounding this issue.
I made it clear to all that this was not an opportunity to make submissions and arguments; rather, it was an exercise to attempt to gain a better understanding of the facts and evidence with the goal of making a more informed and more accurate assessment of the likely damages.
Kitchen Table Discussion: Case 2
The second case involved a multi–car collision on a 400-series highway.
There was an obviously at–fault motorist with only $200,000 of insurance limits facing the claims of three plaintiffs with damages well beyond those limits. There was a secondary motorist who might attract some liability but who might avoid liability entirely. There were three insurers responding to the potentially underinsured claims.
Not surprisingly, the mediation memoranda articulated the positions and arguments of each of the parties in a black and white fashion.
I encouraged the lawyers and their clients to walk through all of the relevant and admissible anticipated evidence to better understand what each of the motorists did and did not do in the few seconds that gave rise to the series of accidents.
I cannot emphasize sufficiently the importance of talking about admissible evidence. It is all well and good for lawyers to take positions. It is quite another thing to get lawyers to focus on the evidence. For example, the fact that the investigating police officer describes a motorist as driver #1 may indicate that the officer thought this person was at fault but that evidence is unlikely to see the light of day in a courtroom. The fact that the investigating police officer may have laid a charge is not evidence in the absence of a conviction.
Case Results
In the interest of frank and full disclosure, I should tell you that in the case of the well-paid professional, the matter did not resolve at mediation. I am convinced, however, that all who participated at the mediation left with a greater understanding of the facts and the evidence and that the matter will be resolved short of a trial in the fullness of time.
In the case of the multi–car collision, two of the three claims were resolved at mediation with contributions being made from the secondary motorist’s insurer and from the underinsured carriers. The third claim was not resolved, but this had everything to do with the applicable underinsured carrier’s approach to risk and nothing to do with the kitchen table discussion.
It should be noted that if there was any liability on the secondary motorist, the underinsured carriers would not be required to make a payment by reason of the so-called 1% rule. This story and the outcome achieved at mediation demonstrates what can be achieved at mediation with an appreciation for and analysis of risk which can be very different from the outcome of trial.
Why Are Kitchen Table Discussions and Other Collaborative Approaches Worthwhile?
To further illustrate the importance of effective communication strategies in mediation, it’s crucial to recognize the contrast between aggressive posturing and collaborative dialogue. In the context of mediation, the tendency to “pound the table” often results in heightened tensions and defensiveness, ultimately hindering progress. This adversarial approach, characterized by forceful arguments and attempts to dominate the conversation, can leave parties feeling more entrenched in their positions. Instead of fostering understanding, it may lead to escalation and reduced receptiveness to compromise.
In contrast, the “Kitchen Table Discussions” approach promotes an atmosphere of openness and respect. By encouraging parties to share their perspectives and acknowledge common ground, mediators can facilitate more productive conversations. When advocates adopt a “charm and disarm” strategy—recognizing valid points from opposing sides and expressing a willingness to engage in constructive dialogue—they create an environment conducive to resolution. This shift not only enhances understanding of the underlying facts and evidence but also lays the groundwork for collaboration, making it more likely that parties will leave the mediation table with a clearer path toward settlement.
Final Thoughts
I would encourage discussions at the “kitchen table” when there is a complex fact pattern in relation to a central issue in the matter and an appreciation by the mediator or by one side or the other that the parties are working from very different sets of facts.
Related Blog Post
Read “Pounding The Table Only Hurts The Table (And Maybe Your Hand)” by Logan Cooper for other thoughts on effective communication strategies in mediation.
ABOUT THE AUTHOR
Vance Cooper is principal of Cooper Mediation Inc. Vance devotes 100% of his professional time to mediating primarily personal injury and insurance cases. He specializes in multi-party and complex mediations.
Vance can be reached at vance@coopermediation.ca or (647) 777-4011.
To schedule a mediation with Vance, visit: https://coopermediation.ca/vances-online-calendar/.