05 May Second Mediation vs. Pre-trial: When Should You Opt For a Second Mediation?
If, at first, you don’t succeed, should you try again? After the initial mediation – a mandatory element of the civil law process in some parts of Ontario – you and your client(s) may find you’re at a crossroads in the justice system. A pre-trial conference, which has some similar functions to mediation, must be held before your case can proceed to trial. Have you considered if it is worth trying a second mediation before proceeding to the pre-trial conference?
In this blog post, I explain the similarities and differences between mediation and pre-trial conferences and offer some reasons why a second mediation before pre-trial may be your client’s best option.
Mediation and The Pre-Trial Conference: What’s the Difference?
Some legal commentators have described the pre-trial conference as being like a slightly more formal type of mediation that takes place in front of a pre-trial judge. While this description has some merit, the pre-trial conference judge has many housekeeping duties to perform for the court in addition to making an effort to effect a settlement.
These duties include determining the number of witnesses, whether any witnesses will be called upon for expert testimony, determining whether it will be a jury trial, considering courtroom logistics (translators, audio-visual needs, accessibility), motions and the exchange of information and documents between the parties.
Not all pre-trial judges are created equally. Some are very good; others, not so much. Some have a deft touch; others may be clumsy. Some will ascertain the gap which separates the parties and do their best to bridge the gap; others may be oblivious to the gap and offer their views which are outside of the settlement range and which are counterproductive to settlement. Invariably, one side or the other will hear what they want to hear and hold on to the pre-trial judge’s views as one would clutch to the mast of a ship in a storm. Sadly, the pre-trial judge may have no greater insight into the likely outcome at trial than the lawyers or parties involved in the matter.
Interestingly, the Ontario Bar Association’s task force on judicial dispute resolution has recommended separating these pre-trial components (managing the trial/settlement discussions) into two distinct conferences. One of the report’s authors notes that Ontario has “a very vibrant private mediation bar and they have really developed an international reputation for effectiveness…” If there is room for a settlement, using a mediator as a facilitator in advance of a pre-trial conference provides assurance that these discussions will get the time and consideration they often require to have the best chance for success.
Since trial management and fulsome settlement discussions are both important, as the task force notes, the latter should not be at risk of being treated as an “afterthought.”
Unfinished Business and Narrowing the Scope
If the parties have any realistic chance of settling their issues, a mutually acceptable negotiated settlement is often preferable to rolling the dice at a trial. A good mediator will be able use discussions with the parties to determine if there is room for this outcome.
Sometimes, however, settlement discussions may take longer than the time initially booked with the mediator. Although extensions are sometimes possible, if there are outstanding issues that have not been resolved, but there are good indications from the parties that a resolution to these issues may be within reach, it may be worth not rushing to meet an arbitrary deadline of the end of a mediation session. A second session could either prevent the need for going to trial or, at least, reduce the outstanding issues put before the court.
Judges at pre-trial conferences will try to narrow the scope of outstanding issues as much as possible to maximize the court’s resources and limit the expected length of the trial. By working through these issues in advance at mediation, if the parties are unable to reach a settlement and proceed to the pre-trial, they will be able to convincingly demonstrate to the pre-trial judge that they have thoroughly exhausted all options and attempted to resolve as many outstanding issues as they were able without a judicial determination. This may have a significant bearing on the timeline of the case as pre-trial judges may opt to delay the trial or strike it from the docket if they believe it is not ready for trial.
Private Mediators and Pre-Trial Conference Judges
With private mediation, the two parties have the option of selecting a mutually agreeable mediator to facilitate settlement discussions. The parties and their counsel may seek out mediators with specialized knowledge of certain aspects of the law to ensure they have a good understanding of potentially complex legal issues involved in these cases. Experienced mediators with background knowledge of certain types of cases can often help direct discussions between parties in a manner that leaves them in a strong position to resolve at least some of their outstanding issues.
While you might want to “shop around” to find the best mediator available for your case, you don’t have that option at the pre-trial conference. Judges assigned to pre-trial conferences may not have the same degree of familiarity with the type of civil law involved in your case. This is certainly not to say a pre-trial judge is unqualified to preside over the conference; however, there is a significant advantage in being able to choose a neutral third party who has specialized knowledge that is relevant to the case.
Try, Try Again
Ultimately, the parties have the right to move their case to the pre-trial conference at any time. However, when there is room for settlement or if a particularly fruitful mediation session has concluded before all outstanding issues were resolved or set aside to be heard at a trial, opting for a second mediation may pay dividends for everyone involved.
That said, there is no reason to return to a formal mediation until you have considered other less expensive options. Are the lawyers able to continue settlement discussions directly without the need of a third-party facilitator? Is the settlement impasse sufficiently complicated to require a formal mediation? Is the mediator who conducted the first mediation willing to continue settlement discussions informally, through individual or group teleconferences [similar to caucus and the plenary session at mediation], an exchange of email and the like?
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 party disputes under the Insurance Act.
Vance can be reached at firstname.lastname@example.org or (647) 777-4011.
To schedule a mediation with Vance, visit:https://coopermediation.ca/vances-online-calendar/.