18 Mar Unsettled Cases Don’t Have To Feel Unsettling – Put Your Time At Mediation To Its Highest And Best Use
I would like to tell you that 100% of the matters which we mediate are resolved at mediation. This would be an overstatement to be sure. While a substantial majority of matters brought to mediation resolve on the day of the mediation, there is an appreciable percentage of cases that do not. In this blog post, I explain why an unsettled matter does not have to feel unsettling, unsatisfying or disappointing. Rather, the unsettled mediation experience can provide an opportunity to gain better insight into the matter, the obstacles and impediments to settlement and the prospects and pathway to future resolution. A successful mediation should be defined as leaving the meeting in a better position than when you entered the room – either with a settlement agreement in hand or, alternatively, with greater insight into the matter and with future opportunities for resolution better understood.
My late grandfather said “you have two ears and one mouth; use them in those proportions.” While you should speak at mediation with a view toward persuasion, you should listen carefully and attentively for cues and clues to understand why you may not be capable of resolving the matter that day, where your challenges lie on the day of mediation and into the future, and what opportunities may present themselves for further discussions, negotiations and resolution in the future.
1. Are Your Strengths Truly Strengths?
Case evaluation requires an objective assessment of all of the facts, evidence and applicable law. There is a tendency to perform this evaluation with a bias toward the interests of your own client. A fulsome exchange of ideas and arguments through mediation memoranda and opening remarks should help you gain a better and more objective perspective on what you believe to be the strengths of the case. Some perceived strengths do not stand up to scrutiny, challenge or the bright light of contested litigation. Step away from your role and try to look at the elements of the case in a more objective fashion. Determine whether these newly discovered weaknesses can be addressed, buttressed, or rectified.
2. Are Your Weaknesses Really Weaknesses?
Perhaps you attended the mediation with a belief that your case has some significant weaknesses or an Achilles’ heel. The process of preparing for the mediation may have allowed for you to address some of these weaknesses. Moreover, a concern about the ability of your client to withstand criticism may have been misplaced and you could be pleasantly surprised by how they handled themselves. Finally, if you are facing a formidable adversary, you may exit the mediation realizing that you held your own and have obtained admissions or concessions from the opposing party. Even if a settlement is not forthcoming, a successful mediation could put certain issues to rest for the duration of the litigation.
3. Have You Fairly And Properly Evaluated Risk?
Risk evaluation is essential in litigation, regardless of your role, so it’s beneficial to enlist the help and assistance of the mediator. Frequently, the party, be that a plaintiff, a defendant, counsel or insurance representative, has an unduly optimistic or bullish view of the matter. The mediation memorandum delivered by the opposing party may serve as a tool in helping you and your client evaluate risk or manage expectations. Reality testing can be very important in this regard. Use the mediation and the mediator to gain a better handle on your risk evaluation.
4. Have You Worked On Your Own “To Do” List?
If the matter is not resolved at mediation, what do you have to do to address any weaknesses or deficiencies? Any requested undertakings should be answered. Experts should be retained, if they haven’t already, and lay or independent witnesses need to be located, interviewed and prepared for the possibility of a trial. If you are defence counsel and if authority on the part of your insurance client was an issue at mediation, what can you do to assist your client in presenting the matter fairly to the “powers that be” so that the matter can be properly evaluated and reserved? If you are the insurance client, what additional information or documentation do you require from counsel for the plaintiff or your own counsel to perform your job? Everyone should leave the mediation with a “homework assignment.”
5. Have You Worked Cooperatively With Opposing Counsel In Relation To Their “To Do” List?
If each participant at mediation is going to leave with a “homework assignment,” work with your “classmates” to make cooperative plans for its completion. If the impediment to resolution was a missing document, such as an employment file or tax returns, let opposing counsel know what documents matter [and, perhaps as or more importantly, what documents don’t matter] so that opposing counsel can complete their homework assignment and improve everyone’s chances for resolution.
6. Have You Discussed Time Tabling Of Future Events?
In all likelihood, all of the necessary participants involved in the matter will be present at the mediation. If further examinations for discovery are required, do not delegate the task to your assistant or clerk. Use this opportunity to identify one or more mutually convenient dates and set them aside for whatever further examinations for discovery may be required. Similarly, discuss the need for and time tabling of future motions. Depending on the jurisdiction of the matter, discuss the timing for future litigation events such as the pretrial conference or the trial sittings within which the matter might be reached. In light of the ongoing pandemic and current state of the law, if the matter will be tried by a jury, discuss the need for a motion to strike the jury notice. If you cannot agree on the process, agree to disagree and schedule the motion.
If the parties and counsel believe the mediation occurred too early in the litigation process, discuss whether the matter should return to mediation at a later date when the matter is more likely to be ready for resolution.
7. Experts Reports – Who, What, When, Etc.
If reports from experts will “move the settlement needle,” go out and get them. Obviously, experts’ reports are required for trial and there are timelines stipulated in the Rules of Civil Procedure. That said, if contested facts are driving the liability dispute, it is unlikely that an accident reconstruction report from an expert such as an engineer or expert in human factors will be helpful for the process of resolution (though, I acknowledge, the report may be essential for purposes of trial). These reports are only as good as the assumptions made by the experts. There may be underlying factual evidence to allow for reasonable assumptions to be made.
8. Did You Make Your Last Or Best Or Final Offer? Did You Discuss Making A Rule 49 Offer With Your Client And Obtain Instructions To Do So?
Everyone should have a negotiation strategy or plan when they arrive at the mediation. At the risk of mixing my metaphors, I will typically encourage every participant at mediation to march to the beat of their own drummer and proceed down their negotiation path. Nevertheless, each participant at mediation will evaluate the offers coming from the other side and the pattern of movement. It is not unusual for one or more of the participants at mediation to alter the quantum or percentage of their own movement in response to offers they received from the other side.
To illustrate this point. Let’s assume that the plaintiff started with a demand of $250,000 all-inclusive and a target of $100,000 all-inclusive. The defence responded with an offer of $10,000 all-inclusive and a target of $50,000 all-inclusive. The plaintiff, disappointed by the defence offer as 4% of the opening demand, makes a small move to $225,000. The defence, disappointed by the plaintiff’s demand, reduced by only 9%, makes an offer of $12,500 and points out that this is an increase of 25%. The plaintiff, disappointed by what they perceive to be two very small offers, decides to conclude the mediation.
On paper, the gap is insurmountable ($225,000 as compared to $12,500). In reality, the gap between each party’s target is only $50,000. Subject to strategy and tactics, consideration should be given to making your last or best or final settlement demand or offer. At minimum, such a demand or offer will lead to a discussion between the receiving client and their lawyer. There is also potential for discussions involving the mediator. Mediators should never advise a client to disregard legal advice but they can encourage fulsome discussions in the room. Finally, each side may look at the other side’s offer, compared against their secret target, and be prepared to move off of their target [perhaps to the other side’s demand or offer or to some middle ground].
There are, of course, good reasons not to table your best and final offer if the mediation looks ripe to conclude without a settlement. If you, as the plaintiff lawyer, believe that through skilful negotiations at mediation or through the next few stages of the litigation, you will be able to persuade the defence to pay more than $100,000 all-inclusive, why make this offer at mediation? Another concern may be lowering the ceiling or raising the floor as the case may be. I respect these perspectives. There are undoubtedly other reasons not to put your “best settlement foot forward.”
If you are planning on advising your client to make a Rule 49 offer, why would you wait until after the mediation to present this offer? Time spent with your client will allow you to explain the cost consequences and implications of a Rule 49 offer and obtain instructions to do so. Your Rule 49 offer may be different than your last or best offer at mediation. You can explain the differences to your client and to the mediator and the mediator can explain those differences to opposing counsel and their client.
9. Should You Leave Your Last Offer “On The Table” For Time-Limited Consideration By The Opposing Party?
Consider leaving your last demand or offer open for acceptance for a limited period of time. The plaintiff may “sleep on the offer” and reconsider it the next day or shortly after the mediation. The defence representative may reflect on submissions made at the mediation or discussions in caucus and seek additional authority. While it would be preferable to have one side or the other make the request to leave the demand or offer on the table, this sort of assurance or indication may not be forthcoming. Consider doing this on your own accord.
10. Did You Provide The Mediator With A “Homework Assignment”?
Just as each of the participants at mediation should generate a to do list or a list of homework assignments, the mediator should be encouraged to remain involved in the matter. If the mediator has a better understanding of the steps intended for the litigation, (s)he can better plan the timing for follow-up efforts or the nature of inquiries which could be productively made in the future. For example, if each side planned to engage forensic engineers, the mediator could follow-up at the appropriate time, receive and review the competing reports and offer some reality testing or other insights as to the extent to which these reports may have altered the evaluation on one side or the other or both.
11. Did You Consider “Whispering In The Ear” Of The Mediator?
Mediators can be most effective when one side or the other or both provide their target figures for resolution. If you have not done so in the course of the mediation, please consider doing so at the end of the mediation. It should go without saying, but the condition for sharing this sort of information must be complete confidence in the trustworthiness and discretion of the mediator. This information is invaluable to the mediator and will assist the mediator in post mediation follow-up efforts. That said, if your target at mediation is likely to be a moving target going forward, be that higher or lower, let the mediator know so that the mediator does not conduct post mediation efforts with a view toward what is no longer an acceptable endpoint for resolution.
12. Did You Leave The Mediation In A Better Position As Compared To When You Arrived?
Did you learn something new about the matter? Whether that “something new” is a positive or negative development, it should have an impact on your evaluation of the matter and the advice you give to your client. Did you learn something new about your client, their wants, desires, needs, or requirements? Did you learn something new about yourself, your ability to think on your feet, respond to a changing environment, reply to challenging arguments, or deal with difficult people or tough subjects? Did you learn something new about opposing counsel? It could be directly relevant to the matter in dispute or something on a personal level which gives you perspective on the opposing party. As I have said time and again, you may disagree with opposing counsel or the opposing party, but you need not be disagreeable.
I hope this blog post has helped you to reframe and refocus your perception of what is popularly called a failed mediation. What may first appear to be an unsettling, unsatisfying or disappointing experience should be recognized as something which gave you better insight into the matter, the obstacles and impediments to settlement and the prospects and pathway to future resolution.
ABOUT THE AUTHOR
Vance Cooper, Toronto Mediator and Arbitrator, 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 is a Distinguished Fellow of the International Academy of Mediators, a Chartered Mediator of the ADR Institute of Canada and a Certified Mediator by the International Mediation Institute. He was inducted to the Ontario Chapter of the Canadian Academy of Distinguished Neutrals (CADN).
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/.