28 Feb Pre-Mediation Caucuses: Going the Extra Mile
It’s been said that there are no traffic jams on the extra mile. Putting in a little more effort in what we are doing is rarely a big sacrifice, and yet it can pay huge dividends. Consider the benefits of holding a pre-mediation caucus, for example.
There are many opportunities for and reasons to consider caucusing with your mediator or a prospective mediator in advance of the mediation. In this blog post, I identify the timing for such communications and explain why this approach frequently helps all parties on the day of the mediation. These caucuses can and should be initiated by counsel or the insurance claims professional.
Establishing The Ground Rules
Before entering into a pre-mediation caucus, all parties (the lawyers, claims professionals, and mediator) must understand and accept that these discussions will be kept in the strictest of confidence or that the rules for sharing discussions are clear.
Every mediator is different. Some have a policy in which they are authorized to share discussions in caucus if it is helpful unless and until they are told not to share. Others, myself included, make it a policy that all discussions in caucus are treated as confidential. There is no right or wrong in this regard, but it is imperative that the ground rules are established before discussions in caucus take place. Once the rules are established, pre-mediation caucusing allows for sensitive or confidential information to be shared and discussed without fear of it being disclosed to the other party.
Prior To Booking A Mediation
You may want to consult with a mediator before a mediation date is booked. That mediator could be the one that is mutually acceptable to the proposed participants to the mediation or simply a mediator with whom you have a good relationship. This will allow the mediator to have some input into the design and format of the mediation. If this is simply a two-party mediation, there’s not a lot of special tailoring required. But in multi-party claims, advance planning can be enormously helpful.
For example, in one case arising from a very significant multi-vehicle collision, the target defendant had mid-level 7 figure insurance limits. The secondary defendant had even greater insurance limits, but also a very strong liability defence. The defendants were facing a multitude of claims well in excess of the target defendant’s available insurance. Pro-rating amongst the claimants in relation to the finite amount of available insurance was going to be the critical task.
In this case, we worked to design a mediation process that would satisfy the needs of the various stakeholders. We also created a process to allow the lawyers for the competing claimants to share their mediation memoranda and a “fact sheet” to assist plaintiff lawyers in performing a task with which they are unaccustomed – assessing the realistic values of claims of other plaintiffs.
In the other case, there were a large number of claims arising from an event for which the defendants might not attract any liability. Certainly, this was the official defence position though they appreciated that there was risk to their position and, win or lose, there were going to be significant legal expenses defending these claims to and through a trial which would last months in total. There were a host of factual issues in dispute. Moreover, some very important legal issues in this case could have seen the litigation continue to a provincial appellate court and potentially to the Supreme Court of Canada.
In a pre-mediation caucus, we were able to design a process which was both time and cost efficient. The defendants proposed a process whereby one plenary session involving lawyers for all parties would address the legal and liability issues. Time limited individualized mediations were organized to allow for the damages aspect to be canvassed and for negotiations to proceed. All of the plaintiffs accepted this process and, ultimately, the mediation proceeded over just under four days in total. By the end of the mediation sessions, all claims in all actions were settled.
After Booking A Mediation
In an earlier blog post, Cooper Mediation proposed what we described as “case managed mediations” – an opportunity to complete an early mediation, particularly in jurisdictions with mandatory mediation, and to schedule a more fulsome mediation at a later date. The case managed component was designed to allow for an early exchange of information and to establish timelines, processes and procedures. As a result, when the date for the fulsome mediation arrived, the parties would be in the best position to have meaningful and productive settlement discussions.
For the purposes of this blog post, I suggest that after a mutually acceptable mediator and mediation date are decided, there is nothing to stop you from contacting the mediator for a confidential pre-mediation caucus. You may want to preview what you anticipate to be challenges or obstacles prior to the mediation. You may want to raise concerns in relation to client management; be that between you and your client or what you perceive to be concerns or issues between the opposing counsel and their client. You may be concerned about the skills and abilities of the lawyer on the other side of the case to appreciate the subtleties and facets of the claim or defence as you understand it. Frankly, I can think of dozens of reasons for this call to be made within days or weeks of booking the mediation rather than within hours or days of the mediation taking place when it is too late for anyone to do anything about these obstacles.
In The Weeks Or Perhaps Month Or Two Prior To The Mediation
At this point, your case should be fully mature and ready for presentation. Once again, there are dozens of reasons to caucus with the mediator in advance of the mediation. For example, there may be late reports from experts. This could raise the prospect of last-minute cancellations and cancellation fees. Moreover, the lawyer receiving the late expert report may not be able to properly digest and consider the report or explain its impact to the decision maker. There could be issues in relation to client expectation or client management from the lawyer’s perspective or issues in relation to lawyer competence or experience from the client’s perspective. These issues will probably not get better on their own and are likely to get worse as the impending mediation draws closer. Pre-mediation caucusing with the mediator may offer opportunities for brainstorming and troubleshooting.
As a mediator, I am a proponent of the opening joint or plenary session. If you, as counsel or the claims professional, want to persuade someone or, at minimum, open their minds to the possibility that they might be wrong or that there is some risk in their position, why would you give up this opportunity and hand it off to the mediator? While lawyers would probably agree that motions and appeals are, to a large extent, won or lost on written materials, most lawyers would never want to give up the opportunity to make an oral argument. Just as there is a best practice for making oral arguments to a judge, there is definitely a best practice to making effective opening remarks in the joint or plenary session. Sadly, I see this opportunity missed or misspent in too many cases. Pre-mediation caucusing with the mediator will provide you with opportunities to preview the themes you intend to cover and gain feedback from the mediator. I’m not suggesting that the pre-mediation caucus will serve as a dry run of your opening remarks. Rather, the mediator should be prepared to provide you with some tips, advice and guidance to help you make best use of time together.
In The Hours Or Days Prior To The Mediation
By this time, mediation memoranda should have been exchanged. Counsel and the claims professional should have a clear idea of the case they are presenting and the case facing them. A bright light should be illuminating key issues in dispute. If you contact the mediator for purposes of a pre-mediation caucus, the mediator may be able to help you better prepare for the mediation with these issues in mind. The mediator may have experience with the issues or the participants to the dispute [in this regard, I am thinking of the lawyers and claims professionals]. The mediator may have suggestions as to how to present challenging or potentially acrimonious or divisive messages or concepts. The mediator may also be able to help you manage emotions, be that your own or those of your client.
Pre-mediation caucuses can help to save time by allowing the mediator to gather information and understand the parties’ positions before bringing them together for joint negotiation. This can facilitate more efficient negotiations during the mediation session.
When thinking about going the extra mile when preparing for a mediation, please remember: the more thought, effort and planning that precedes the mediation, the greater the likelihood of a productive and relatively problem-free session. I am not suggesting that pre-mediation caucusing is a guaranteed recipe for success. However, lack of foresight in a complicated or complex matter with challenging issues or individuals will not make resolution on the day any easier or more likely – even if your mediator is exceptionally skilled.
Pre-mediation discussions with the mediator in relation to these complications and challenges will give everyone involved the greatest opportunity for meaningful and productive discussions and negotiations and, in turn, remove barriers that stand in the way of resolution.
About The Author
Vance Cooper is principal of Cooper Mediation Inc. Vance devotes 100% of his professional time to mediating and arbitrating primarily personal injury and insurance cases. He serves as an arbitrator in loss transfer and priority disputes under the Insurance Act.
Vance can be reached at email@example.com or (647) 777-4011.
To schedule a mediation with Vance, visit: https://coopermediation.ca/vances-online-calendar/.