16 Jul On Time, On Point, On Budget: Getting the Most Out of a Roster-Rate Mediation
Mandatory mediation in several Ontario jurisdictions has helped give rise to a fantastic group of roster-rate mediators and a process designed with cost-effectiveness, efficiency and, most importantly, resolution in mind.
The key is to make the most of the opportunity.
Here are five tips for getting the most out of your roster-rate mediation.
1. Choose the Right Mediator
Not every case needs the same mediator.
Are you looking for subject-matter expertise? Are you dealing with a client who may need additional emotional support or expectation management? Does the file involve complicated logistics or multiple parties requiring strong case-management and organizational skills?
Think about what your particular case and client need from the process.
Ask colleagues for recommendations. Review the mediator’s website, articles or LinkedIn profile. If you are unsure whether someone is the right fit, give them a call.
The right mediator is not necessarily the person with the highest rate or the fullest calendar. It is the person whose skills and approach are well suited to the particular people, problems and dynamics in your case.
2. Set Your Expectations High
Roster rate should not mean reduced effort, preparation or engagement.
Expect your mediator to bring curiosity, tenacity and patience to the process.
Curiosity means taking the time to understand not only the legal issues, but also the people and interests driving the dispute.
Tenacity means continuing to look for productive ways forward when negotiations become difficult or appear to stall.
Patience means recognizing that people process information, risk and difficult decisions differently, and that progress does not always happen in a straight line.
A lower mediation rate should not mean lower expectations. Expect your mediator to arrive prepared, stay engaged and make the most of the time available.
3. Use Your Time Wisely
Three hours can go by quickly.
If you or your client are new to mediation, the morning of the mediation should not be the first time you discuss how the process works, what to expect or how negotiations may unfold.
Prepare your client in advance.
Similarly, if there is something important the mediator should know, such as a difficult interpersonal dynamic, a significant emotional issue, a logistical concern or anything else that may affect how the process should be structured, consider contacting the mediator before the session.
The more groundwork that can be done in advance, the more time everyone has on mediation day to focus on the issues that actually require discussion, negotiation and problem-solving.
4. Briefs Are Important. Openings May Not Be.
A good mediation brief helps everyone arrive ready to get to work.
Take the time to clearly explain your client’s position, the key facts and evidence, and the issues that are likely to drive the negotiation. Counsel should also meet with their clients in advance to discuss those positions and prepare them for the range of possibilities that may arise during the mediation.
Opening comments, on the other hand, should not be automatic.
Where the briefs have thoroughly addressed the issues, lengthy openings may simply repeat information everyone has already reviewed. At their worst, they can consume valuable time or inflame tensions before negotiations have even begun.
That does not mean openings are never useful. If you choose to make opening comments, think carefully about what you want them to accomplish.
Use them to set the right tone, identify the issues that truly matter and create momentum toward productive discussion.
5. Don’t Give Up Too Early
Negotiations can be frustrating.
It can be easy to conclude that the other side “isn’t taking the mediation seriously” or that the parties are simply too far apart to continue.
Before giving up, use your mediator.
A good mediator can help you make sense of difficult negotiation tactics, communicate more effectively, test assumptions and consider whether there is another way to move the discussion forward.
And even if mediation day is not the day the case settles, a well-used mediation can still narrow the issues, clarify the evidence, improve communication and help the parties better understand what stands between them and resolution.
Can the parties identify what information is still needed? Can procedural or case-management issues be addressed? Can the mediator help establish a path toward future settlement discussions?
Settlement is an important measure of success, but it is not the only way a mediation can move a case forward.
Make the Most of the Opportunity
Roster-rate mediations are a fantastic opportunity available to parties in Ontario.
They provide a cost-effective forum to exchange information, test positions, better understand risk and explore whether a case can be resolved before the parties invest further time and money in litigation.
Choose the right mediator. Prepare in advance. Use the time thoughtfully. Stay engaged when negotiations become difficult.
Three hours can accomplish a lot.
Use them well.
About the Author
Logan Cooper joined the Cooper Mediation team in November 2017 and devotes 100% of her professional time to mediating at roster-like rates. She has mediated over 600 cases in the areas of personal injury, long-term disability, employment, and other insurance-related disputes. She has handled global mediations, cases with multiple parties, self-represented litigants and cases with complicated technical and interpersonal challenges. Logan has been inducted into the International Academy of Mediators (IAM). The IAM is an invitation-only organization.
Logan can be reached at logan@coopermediation.ca or (416) 726-1344.
To schedule a mediation with Logan, visit: Logan Cooper’s online calendar.