We are pleased to circulate the first ADR Section newsletter of 2011.
This issue is filled with thoughtful and informative articles, covering a wide range of topics. Take a few minutes and review what your colleagues have to say about – Mediation Advocacy and the Art of Persuasion, whether “experts or “generalists” are more effective mediators, as well as an interesting comment about two recent cases that address the question of whether costs of an unsuccessful mediation can be recovered after a trial.
We also include an informative piece on Osgoode Hall Law School’s new Mediation Clinical Program, which provides advanced mediation training and conflict resolution theory to law students, while giving them an opportunity to engage in (and benefit from learning about) the challenges facing the community around Jane and Finch in northwest Toronto. It’s worth reading about this worthwhile and creative program, which will hopefully serve as a model for programs of this type at other post-secondary institutions.
Best wishes from us, the editors, as the ground starts to thaw and the early spring feeling is just around the corner!
The Osgoode Mediation Centre: A Focal Point for Experiential Learning and Social Justice Initiatives in ADR
Leanne Shafir and Darren Hall
In this article, Leanne Shafir explains how the Osgoode Hall Mediation Clinical Program provides students with opportunities to work with entire communities to design conflict resolution systems to prevent and resolve conflict.
Paul Iacono reviews the things that counsel should do and think about in preparing for and attending at a mediation, and concludes that “before you can become a peacemaker, you must know how to wage war.”
Can You Recover Costs After Trial from an Unsuccessful Attempt at Mediation?
Colm Brannigan
In his article, Colm Brannigan reviews two cases in which Ontario courts have denied a claim for the costs of an unsuccessful mediation. Colm then discusses what can be done to make those costs recoverable.
Fred Berenbaum discusses the question of whether parties to a dispute are better served by a mediator who is an "expert" in the field, or one whose expertise is in conflict resolution
Alternative Dispute Resolution is published by the Alternative Dispute Resolution Section of the Ontario Bar Association. Members are encouraged to submit articles. The articles that appear in this publication represent the opinions of the authors. They do not represent or embody any official position of, or statement by, the OBA except where this may be specifically indicated; nor do they attempt to set forth definitive practice standards or to provide legal advice. Precedents and other material contained herein are intended to be used thoughtfully, as nothing in the work relieves readers of their responsibility to consider it in the light of their own professional skill and judgment.
Message from the Chair
Marina Mussani*
It has become an annual tradition for the ADR Section to host an annual Meet n’ Greet in collaboration with the ADR Institute of Ontario. This year we bid farewell to 2010 and welcomed 2011 with the Table Talk: A Discussion of Goals and Milestones for ADR Practitioners. The format enabled roundtable discussions on six different topics of interest ranging from ‘Best Rosters’ to ‘Benefits of International Experience’. The program was held on December 1, 2010 and was very well attended and received by members of the ADR community. The enthusiasm and excitement of the participants was palpable. The program was very informative and a great learning opportunity. It was a pleasure for me, personally, to have co-chaired the program with Robert Pidgeon from ADRIO.
The ADR Section Executive began 2011 by renewing its efforts in examining the Roster Rate for Mediators under Rule 24.1 of the Rules of Civil Procedure and Ontario Regulation 451/98, setting out the fees that mediators on the roster could charge if they are appointed or chosen by the parties under the Ontario Mandatory Mediation Program. A working group to examine this matter is now being formed and the ADR Section, in collaboration with other interested Sections, is about to embark on an in-depth and constructive review of this matter.
This year the ADR Section has also renewed its efforts to examine the expansion of Mandatory Mediation to other jurisdictions. The input from the local Bar and ADR communities is central to this discussion, and the ADR Section Executive is looking into partnering with local Law Associations and other local ADR organizations in order to have a meaningful dialogue on this important matter. This March the ADR Section will be collaborating with the Middlesex Law Association in order to begin the first of such dialogues.
I am pleased to inform you that the ADR Section has renewed its participation at the OBA Institute this year, and it is my sincere hope that the Section will continue building on this effort in the coming years.
With an aging population, there is an increased awareness of the various issues faced by the elderly. Legal issues are no exception. In order to begin understanding and addressing such issues, the ADR Section is hosting a program on Elder Law Mediation on April 28, 2011. Mark your calendars!
I take this opportunity to remind members that the ADR Section Executive is currently accepting nominations for the annual ADR Award of Excellence. Nomination forms and information is available on our website.
As the days grow longer, the snow starts to thaw, the approach of spring seems closer and nature prepares for renewal. For many, this is a time for self reflection and renewed energy. In this endeavour this year, if you are so inclined, I wish you delightful insight and great energy!
*Marina Mussani,B.Sc., LL.B (Hons) is a lawyer, mediator and arbitrator. She is the chair of the OBA ADR Section. She can be reached at Mussani Law Office, 905-828-6623 and atmarina_mussanilaw@rogers.com
The Osgoode Mediation Centre: A Focal Point for Experiential Learning and Social Justice Initiatives in ADR
Leanne Shafir and Darren Hall *
Imagine entering your classroom, pulling out your casebook, and settling in for a three hour lecture. This for many is the primary mode of learning and knowledge acquisition in legal education. Does it have to be like this? Is this the optimal way to teach the adult learner? This article will walk you through the design and development of a new Mediation Clinical Program (MCP) at Osgoode Hall Law School, that focuses on experiential learning in the field of alternative dispute resolution. Through this program students learn both the theory and practice of ADR as they engage themselves in real life experiences, while at the same time they engage the community in a service that meets their needs, and empowers them to take an active role in the prevention and resolution of their conflicts.
As stated by a second year law student:
"What I love most about the Mediation Clinical Program (MCP) is the potential for community outreach. Before entering the program, I knew that I wanted to work with youth, but struggled finding opportunities to do so. Through the MCP, I have trained youth to be peer mediators in Toronto District School Board (TDSB) schools, designed dispute resolution systems for community youth centres, and conducted conflict resolution workshops in local summer camps. Furthermore, students in the MCP are free to develop novel community engagement projects. For example, I am currently organizing a 'peace summit' which will bring together police and youth leaders to discuss sources of, and solutions to, conflict in the Jane and Finch area. These have been immensely meaningful experiences, as they have allowed me to (finally) apply academic concepts in a way that improves my community."
The MCP at Osgoode Hall Law School was introduced in September 2009 to provide law students with advanced training in mediation and conflict resolution theory and practice, and to address the conflict resolution needs of the Jane-Finch Community. In its second year of operation, the program has built an excellent foundation in its establishment as an academic program, and in the role it serves within the community. The Osgoode Mediation Centre (OMC) strives to provide a mutual and tangible benefit for both law students and community members through the social justice initiatives it supports, and its ability to promote access to justice within the community in a way that honours the meaning prescribed to the term “access to justice” by those it seeks to assist.
Background
In 2006, a group of Osgoode students founded The ADR Project with a view to creating opportunities for law students to develop practical competence in alternative dispute resolution through intensive training workshops and supervised mediations at the Small Claims Court. These students were subsequently joined by others, and The ADR Project began to expand.
With the assistance of Osgoode faculty Paul Emond, Frederick Zemans, Trevor Farrow, Janet Walker, a graduate student, and the Office of the Dean, The ADR Project applied for and received a grant from the Law Foundation of Ontario (LFO) to commence a Mediation Clinical Program. The LFO grant led to the appointment in July 2009 of the author as Director of Osgoode’s MCP.
The OMC, now in operation for 18 months, has launched multiple pilot projects within the community, and assisted in the resolution of community disputes.
Design and Development of the Osgoode Mediation Centre
Students enrolled in the inaugural year of the program were provided with the unique experience and opportunity to participate in what is known as interest-based conflict systems design: designing interest-based systems with stakeholders, not FOR them. The theory behind this, much the same as an agreement created BY the parties, not FOR the parties within mediation, is that: “If you build it, they may or may not use it. If they build it, they will use it, refine it, tell their friends about it, and make it their own”.1
In this manner, students were sent out to ascertain the interests of the community when it came to their own experiences of their conflicts and disputes…what types of conflicts were they experiencing, how were they being addressed, by whom, at what cost, and ultimately we asked the question: What can we do to help?
The simultaneous act of becoming a conflict system designer and a conflict resolver, as well as a reflective and engaged student, was both challenging and exciting. A few common questions students asked (and answers given) were:
Q: Do you really not know what this Mediation Centre is going to look like?
A: No, I don’t, but let’s enjoy the process and journey of uncovering what it is…..how can we provide something that is truly needed and created with the participation and input of the community it aims to serve?
Q: How is designing a conflict management system the “same” as mediation?
A: It’s not necessarily the “same”, but it is essentially the mediation of an entire community, understanding their interests, and assisting them to develop “options” that will empower them to prevent and resolve their conflicts.
As students of the MCP, they were to learn about mediation and conflict resolution through theory, simulated experiences, and the real-life intersection of designing a system, mediating disputes, and teaching conflict resolution skills to the community. Although the foundation has now been built, ongoing stakeholder involvement, assessment, and evaluation must continue.
The MCP’s Experiential Learning Model
One of the cornerstones of clinical education is its ability to provide experiential learning opportunities to law students. The program’s learning model is based on the theory of experiential learning, which recognizes the student’s direct personal experience as the basis of effective learning. Experiential Learning is generally understood as a continuous and cyclical process, consisting of the following four stages: having a concrete experience, reflecting on that experience, conceptualizing a revised theory that explains the experience in context, and testing the revised theory by way of experimentation.2 Experiential learning improves the learner’s ability to adapt to new situations by utilizing several modes of acquiring new knowledge and by exploiting the learner’s existing knowledge, skills and experience. The program’s learning model achieves the dual pedagogical objectives of teaching the knowledge, skills and competencies that are relevant to mediation and conflict resolution, and cultivating an expertise for long-term effective learning.
Students who graduate from the program will have achieved the essential skills and knowledge, as well as an ability to continually problem solve and reflect on issues, giving them a framework to address novel issues that will arise in their daily personal and professional lives in the future.
Another second year law student stated that:
"The MCP offers students a practical and unique learning experience that is invaluable. Through community outreach, clinical education seminars, mediation observations and demonstrations, students are given the opportunity to challenge themselves in various ways and further develop their research and analytical skills. In addition, by being immersed into new communities and acquainted with a range of diverse customs and cultures, my communication skills have flourished, something that will be beneficial to me in any future learning or work environment. Through both academic text and client engagements, the OMC’s resources have enriched my education and broadened my legal scope."
The Program’s Structure
The Program consists of twelve students and is divided into four functional areas, where the students are organized into four groups of three students within in each functional area. The groups are selected so as to minimize repeat pairings of students across groups, in order to maximize the students’ overall exposure to diverse learning approaches, skill sets, knowledge and experience bases. The diversification of the functional groups thereby increases the overall number of available experiences that students may draw from as a basis for further reflection.
A leader is nominated for each of the functional groups in order to ensure accountability within the group and to simplify external communication with the program director and partner organizations. Every student is required to serve as a leader at least once in the program.
The Four Functional Areas of the Program
The four functional areas are: A Mediation Intensive Seminar, Facilitation of Conflict Resolution Training in Primary Schools, Community Engagement and Outreach, and the Mediation Clinic.
The Mediation Intensive Seminar
The Mediation Intensive Seminar is a weekly 3 hour classroom session that focuses on key subject matter areas in mediation, explored by way of group discussion and experiential learning activities. Every seminar begins with a preliminary discussion and reflection of the students’ experiences to date. Then, one functional group of three students makes a presentation and facilitates a group discussion on leading theories described in the assigned weekly readings in the key subject area. In this discussion, the students reflect on past experiences in relation to new experiences and insights gained in the course of the group discussion. Simulations follow this learning, weaving new ideas and concepts into the students’ toolbox.
Conflict Resolution Training in Middle Schools and High School
In partnership with the TDSB in the Jane-Finch community, the four functional groups in this area are each responsible for facilitating a year-long program of conflict resolution workshops to a group of 25 Grade 6, 7, and 8 students, and one group of high school students. Each workshop teaches conflict resolution principles in a series of 30-60 minute simulations and exercises. The workshop material considers the learning needs and abilities of the students and incorporates features of conflicts commonly encountered by youth in the community.
The TDSB students gain new conflict resolution skills and knowledge over the course of the workshop, and also improve their abilities to learn experientially through the engagement in the workshops. The MCP students benefit from the concrete experience gained that forms a basis for further reflection in subsequent Mediation Intensive Seminars. As a result of insights gained in past seminars, the law students are able to continually adapt their approach and strategy in future workshops. In addition to the workshops, students are developing restorative processes to be implemented within the schools, to facilitate discussion about issues, and to assist in resolving conflicts that occur.
One MCP student (JD candidate 2011) worked for the OMC over the summer months, collaborating with TDSB and teaching conflict resolution skills to youth. When asked to reflect on his experience, he said:
"When I started teaching conflict resolution I quickly realized I had to check my assumptions and reality at the door. I was not familiar with the types of conflicts the students shared with me and really had no answer. It became apparent that I was not their teacher, but that we were mutual students, teaching each other and learning how to resolve real conflicts in real life."
Community Engagement
The four functional groups in the community engagement area are each responsible for managing the relationships of an assigned number of community groups and organizations. The students are responsible for ascertaining the nature of their ongoing conflict resolution needs, and to promote awareness of the services of the OMC within those organizations.
Each functional group is also responsible for carrying out a Community Engagement Project (“CEP”), designed by the students, and approved by the clinic director. By collaborating with the students on the CEP, the community organizations are able to improve their service offerings to members of the community.
Engagement with the community organizations is an opportunity for the program students to gain relevant concrete experiences that serve as a basis for future reflection in subsequent mediation seminars. The process of ascertaining the conflict resolution needs of the community organizations where polycentric and often competing interests are in play, and attempting to reconcile those interests by designing a conflict resolution system that addresses those needs and interests is analogous to the process of ascertaining the underlying interests of parties to a mediation by reconciling the parties’ interests and encouraging the parties to find a mutually acceptable means of satisfying those interests. The CEP provides students with experience in creating and implementing social justice initiatives, ongoing design and development work as it relates to the OMC, and a fresh perspective for reflection on their own mediation skills and competencies.
The Mediation Clinic
The administrative and procedural activities of the clinic are implemented by the four functional groups for the mediation clinic. Each functional group is responsible for maintaining the clinic’s office activities for two continuous three-week periods over the duration of the Program. The Program Students gain direct experience mediating real conflicts between members of the community. A community organization will refer conflicts either directly to the OMC (by phone: 416 736-5104, or email: omc@osgoode.yorku.ca) or to the responsible community engagement functional group for that organization. The Program Director then assigns the mediation to two program students, who are responsible for performing the intake process for the parties, preparing for the mediation, conducting the mediation with the assistance of the Director or designate, and for reflection following the mediation.
The combination of activities in the mediation intensive seminars, conflict resolution training, community engagement activities, and community mediations, develops skills, competencies and knowledge that can be called upon to address the sensitive and complex interpersonal matters that may arise. Students are well prepared to respond to difficult challenges and to provide a well-needed service to the community.
Conclusion
The MCP utilizes an experiential learning model to teaching mediation and conflict resolution that encourages students to learn and reflect on their own experiences. Students are engaged in both the development of skills and the provision of services that enhance their own lives, the lives of the community members who surround them, and ultimately the lives of the clients who they will serve in the future. Combining social justice initiatives with experiential learning in ADR is creating win-win opportunities, much like those we strive for in the collaborative resolution of disputes. A goal of the MCP is to assist law students to experience the prevention and resolution of conflicts in the lives of the community in which they learn, to understand the interests behind the positions put on the table, to remain open and curious to the people in front of them, and to think broadly about ways to resolve problems. The other complementary function is to assist in the resolution of people’s conflicts in a manner that empowers and recognizes their perspectives. These goals provide a mutual benefit of social justice engagement and legal education that aids in shifting the skills of law students so that they are better able to understand and address the problems of the clients that will appear before them in the future.
* Leanne Shafir is the director of the Mediation Clinical Program and the Osgoode Mediation Centre. Leanne acknowledges and appreciates the work and contribution of Darren Hall, JD candidate 2011, Osgoode Hall Law School.
___________________________
1 C. Constantino and C. Merchant, Designing Conflict Management Systems (San Francisco: Jossey-Bass, 1996).
2 David A. Kolb, Experiential Learning: Experience as the Source of Learning and Development, (Englewood Cliffs, N.J.: Prentice Hall: 1984), at p. 21.
When viewing the entire landscape of dispute resolution, it is clear that in today's world mediation is by far the most popular. Every form of dispute resolution involves advocacy. Be perfectly clear, however, that mediation requires a different kind of advocacy. It is not an adversarial setting. It is ultimately about persuasion. The mediation process itself is about compromise and crafting solutions. It is about two opponents building a bridge together, which will allow each of them to close an unpleasant chapter in their clients’ lives.
The parties are litigants and they have begun the journey to the court house, which some people today view as a pathological experience. This excursion will take many years and it will cost a lot of money and the results are unpredictable. Mediation is a process which seeks to truncate considerably this excruciating experience. All of your preparation for the mediation session must keep this in mind.
The Mediation Memo
This is a very important document. It is the first thing your opponent and the client will read; it is the first thing the mediator will read. You only get “one chance to make a first impression”. First impressions are lasting.
It is best when this document is concise. It must introduce the parties, the issues, the strengths and weaknesses of those issues and finally it must lay out the proof. A lawsuit is not a scientific search for the truth; it is the resolution of a dispute. Sometimes it becomes a search for proof, as in who has the best proof.
The following suggested layout is how you should plan your mediation memo.
Use lots of headings and use numbered paragraphs. Be concise and do not repeat your arguments. Do not inundate the mediator with every piece of paper that you have accumulated. If you refer to or quote from an expert's report, that document should be included as an exhibit. Obviously you must be persuasive; do not be repetitive. Make your best arguments first.
Deal with the issues; deal with the strengths of your case, but even more importantly deal with the weaknesses. Demonstrate how you intend to prove your case. This is the best form of persuasion; it is simple logic. Craft your memo in such a way that the mediator can use it as a roadmap through the dispute. The concept is similar to drafting a Factum for the Court of Appeal.
In personal injury cases, I have noticed some trends that are occurring, particularly amongst defendants. In the interests of time, some defence counsel will merely cut and paste from their discovery reporting letter to their client; or even worse they will have a clerk do that. Unless such a document is carefully edited, arguments supporting the plaintiff's case or weaknesses in the defendant's case are inadvertently mentioned. This is not good advocacy. There are no shortcuts when it comes to preparation. You must take the time to prepare the memo carefully.
I have also noted that some defence counsel wait until they get the plaintiff’s mediation memo before they prepare their own. This results in the late delivery of their mediation memo. This is not good; most mediators do not have the luxury of preparing for the mediation a week in advance, most preparation is completed a day or two before the mediation. Sometimes the mediator is out of town or away from his office and doesn't get the material until the 11th hour. Delivering memos at the last minute is not conducive to careful preparation.
If, as a defendant, you do not know the file well enough to prepare a mediation memo before you see the plaintiff's document, then you are probably not ready for mediation.You do not know your own file well enough. The single most common reason why mediations fail is because someone is not prepared, either counsel or the mediator. Get your memo in on time, a minimum of seven days before the start of the mediation. In the event that either party is taken by surprise by anything contained in his or her opponent’s mediation memo the simplest way to deal with that is a reply document.
If there are any glaring weaknesses in your case, you must deal with them in the memo. Your opponent is not going to forget about them. Ignoring them or glossing over them will only serve to enhance their importance in your opponents mind.
I have mixed feelings about mentioning damage figures in your memo. In the final analysis it comes down to the degree of confidence you have in your assessment. If you do not have a comfort level with your assessment, it is better not to mention figures. I don't think there's anything wrong with including a list of disbursements in the plaintiff's mediation memo. As a matter of fact, I think it helps a defendant budget for the mediation session.
The Opening Statement
If the underlying concept of mediation is compromise, the prime purpose of the opening statement is to persuade the opposing litigant to buy into your theory of the case. Lawyers are trained and are very good at making opening statements in an adversarial context. Mediation takes place in a very different kind of environment. Mediation is conducted in a very informal setting; most mediators will lay the groundwork so that the parties can use first names. You are about to endeavor to resolve a legal dispute which could take days or weeks, even months of court time, in a matter of hours. This requires the spirit of cooperation and compromise.
You should not do anything in your opening statement to make the opposing litigant feel uncomfortable. I consider it good practice for counsel to reintroduce themselves and thank everyone for coming. When counsel begin by announcing that their opening remarks are going to be addressed to the opposing litigant, it makes that individual feel centered out and uncomfortable. Your objective is to humanize yourself and try to establish some kind of rapport with the opposing decision-maker. Expressions that involve the spirit of cooperation, combined with the recognition that settlement benefits everyone are always good. Describing your role at the session and that of your client combined with the comment that you are both attending in good faith with a view to resolving the case, is an important ingredient in an opening statement. You can even give examples of how settlement is in everyone's best interest in terms of saving time and money and stress.
If there are strong feelings or emotional issues on one or both sides of the dispute, acknowledge that, but deal with it sincerely. Never make a statement to the effect that you understand the other side's feelings. This has the opposite effect of establishing rapport. When someone has lost a loved one, you cannot possibly understand how they feel. You can certainly sympathize and you can even use the technique of making some kind of an apology if you represent a defendant. In Ontario, we now have legislation under the Evidence Act that permits apologies. This strategy must be carried out with the utmost sincerity, otherwise it will backfire. Sometimes in medical malpractice cases the apology is the only thing the plaintiff has come for; it must be handled appropriately. A great deal of time and effort goes into this kind of an opening statement. Sometimes this kind of an opening statement is best rehearsed with your own client. If you are able to establish some level of rapport with the opposing litigant, they are more likely to listen carefully to your arguments and accept them.
In every lawsuit there are hot buttons. Don't press any during the opening statement. Never do anything or make any kind of comment that will provoke the other side. If you do anything during the opening statement that upsets the other disputant, you will never convince them to listen to you. Remember that you have come to the mediation in the spirit of compromise and with the good faith objective in resolving the dispute. There will be contentious issues; you must deal with these in a logical dispassionate way. The opening statement is not the place for rhetoric or flights of oratorical fireworks. This is not an adversarial context.
Obviously you must address the issues in the case; you must be prepared to discuss the strengths of your own case and how you intend to satisfy the evidentiary burden in order to prove your theories. If there are weaknesses in your case, either legal or factual, you must admit to them, you must acknowledge them; and you must deal with them. It is absolutely imperative that you demonstrate to the opposing litigant that you have the ability, the proof and whatever is required to satisfy the evidentiary burden. A failure to acknowledge the weaknesses in your own case merely serves to strengthen your opponent's faith in the strength of his or her own case.
Never personalize the issues in dispute, especially the contentious ones. Always keep an open mind and be prepared to stress that mediation is a joint effort on the part of all of the litigants to resolve the problem.
Naturally, it is always more effective if you speak without notes; understandably sometimes they are required. Another goal during the joint session is to establish your own credibility. After demonstrating the strengths of your own case, dealing with weaknesses in your opponent's position, it is always good to acknowledge that you have come to listen and that you can be persuaded by reason and logic.
Client Participation in the Opening
This is a topic that requires much thought and careful analysis. If you are plaintiff's counsel and you have a client who is a good witness, you should permit that person to say a few words. In personal injury cases, the opposing litigant is there to make a decision as to whether or not the plaintiff will impress the Trier of fact. If the plaintiff is not a good witness, and you have formed the opinion that no matter how much preparation you undertake this situation cannot be altered, then the plaintiff should remain silent.
The very same considerations apply to a defendant. In personal injury cases sometimes an experienced claims person can speak for two or three minutes and it can have a significant impact. The litigants themselves have a preconceived notion that the lawyers are hired guns. They are there with a view to winning. The claims person is not a lawyer; a few carefully chosen words can ultimately tip the scale in favor of resolution. I encourage client participation in the opening session.
Dealing with Damages
As a general rule it is not good practice to mention numbers during your opening, unless you have outlined them in your memo. There are some important exceptions. If you have read something in your opponent's mediation memo that has caused you to rethink damages you should mention it and acknowledge it. This will serve to enhance your credibility. It is also possible that you have read something that made you realize that you must compromise significantly your opening position; that should be mentioned.
If circumstances have changed, or there is some new slant to the evidence, that should be dealt with in the opening as well. In all other circumstances, it is best to leave the question of the quantum of damages until you begin caucusing.
The Caucusing Session
When the caucusing session begins, do not be afraid to use the mediator as a sounding board. The mediator is there to assist counsel as to whether or not their theories or negotiating strategies are realistic. Regardless of what the mediator says or suggests, your own level of confidence with the case, or your strategy, will determine your course of action.
We have developed a practice in Ontario of using the mediator like an ambassador, delivering messages between the two camps. Sometimes when the issues are extremely contentious this method does not work. Counsel must deal with each other. Counsel must deliver their own arguments and be prepared to defend them. A good mediator will know when this must take place and will simply tell counsel that these issues must be confronted. Simply put, your opponent must get an appreciation of how firmly entrenched you are in your view of the case. Never be concerned when a mediator suggests that a joint session of all the parties be reconvened. You must always be prepared to defend your position; that's what will happen if you end up at the court house.
Most mediators use a standard caucusing rule; anything discussed in caucus can be repeated to the joint session unless counsel state otherwise. Always be aware of this rule and never hesitate to tell the mediator if you want certain information kept confidential. If the mediation is taking place temporally close to a pending trial, make sure that neither you nor the mediator compromises your trial strategy.
It is very important that prior to any offers being presented, counsel advise the mediator what settlement discussions have preceded the mediation session. There is nothing worse than walking into the defendant’s room to present an offer to settle, and then to be greeted with the reality that the proposal is three times a recent offer in writing. That mediation will become derailed instantly; or the mediator will spend the next hour or two simply enabling the parties to start over.
It is not my intention to discuss negotiating strategies in these remarks. In this area most mediators can be very helpful. I am, however, a proponent of principled negotiation. This simply means supporting your negotiating positions with sound arguments. What really happens in most personal injury cases is that the parties tire of repeating these arguments; ultimately they end up negotiating using global numbers. This is much more acceptable when the foundation for these negotiations is based on logic.
The mediation process is a good one. It works in the Province of Ontario and every day there are more mediations taking place then there are civil lawsuits in court rooms. Unless and until they change the system, lawyers who are prepared to try cases are the ones who will be most successful at mediation. Before you can become a peacemaker you must know how to wage war.
* Paul M. Iacono, Q.C., Mediator and Arbitrator, is the principal of YorkStreet Dispute Resolution Group Inc. and is Counsel to Beard Winter LLP. Paul can be reached at piacono@yorkstreet.ca, 416-866-2400 and at www.yorkstreet.ca
Can You Recover Costs After Trial from an Unsuccessful Attempt at Mediation?
Colm Brannigan*
In a recent post on her blog Toronto Estates and Trusts Monitor, Megan Connolly, a Toronto Estates Practitioner, discussed a topic which lawyers and mediators seem rarely to consider.
Are the costs of an unsuccessful mediation recoverable as legal costs by the successful party at trial? This is not a problem in mandatory mediations conducted under Rule 24.1 or 75.1 as they clearly are. But what about recovering the costs of an unsuccessful mediation that is not part of the mandatory regime after trial?
The costs endorsement of the Divisional Court in Saltsov v. Rolnick deals with the question head on. Perhaps not surprisingly in the circumstances, although certainly a surprise to the parties and counsel, the court comes to the conclusion that unless the parties have dealt with this point in their mediation agreement, they are not recoverable.
The court commented,
In this case, while there is no formal agreement on costs of the mediation, it appears that the claim by the successful appellants to partial indemnity costs and disbursements related to mediation is not disputed in principle by the respondent Saltsov. However, as noted above, an agreement in principle does not fetter the jurisdiction of this Court to deny a claim for mediation-related costs and disbursements.
Referring to the earlier case of Naneff v. Con-Crete Holdings Ltd., (1993), 11 B.L.R. (2d) 218) which was decided at a time when mediation was not quite so mainstream, the court adopted Mr. Justice Blair's concerns that "parties may be discouraged from engaging in constructive dispute resolution processes for fear that at the end of the day, if such proceedings do not lead to settlement, costs will be increased."
The court set out other policy considerations in arriving at its decision:
“... why voluntary mediation should not be the subject of costs awards by the Court. Without probing into without prejudice discussions/negotiations, it is neither possible nor desirable to attempt to assess the conduct of either party at mediation. Without probing into without prejudice discussions, it is it is neither possible nor desirable to assess the reasonableness of positions taken by the parties or whether the time spent in attempting to find resolution was reasonable. In short, the mediation process is neither subject to nor amenable to supervision by the Court. Finally, the fees charged by mediators vary greatly and the Court should not place its imprimatur on mediators' fees by treating such fees as bona fide disbursements to be paid by the unsuccessful litigant.”
While these are all valid points, the concern of the courts about placing its “imprimatur” on mediator’s fees seems to ignore that the fees would have been agreed to by the parties when the mediator was retained. The court is being asked to sanction an agreement between the parties not to approve or disapprove a mediator’s fees.
It appears that the bottom line from this case for counsel and mediators is set out in paragraph 14 of the decision:
“If parties wish to agree that, if the mediation does not result in settlement, the successful litigant will be able to claim mediation-related costs and disbursements, then that is an agreement that they may make between themselves before embarking on mediation."
Is this a wise policy decision? Could this discourage the use of mediation outside of the mandatory mediation system? Will parties with strong cases avoid mediation because they want to minimize non-recoverable "legal" costs? The experience in other jurisdictions, especially the UK, where this debate has been played out does not support this concern. What we do need, as is shown in case law from the UK, is heavy court pressure on parties to mediate and possible cost sanctions if mediation is unreasonably refused.
In most of the cases that I mediate, there is usually an agreement that the costs of the mediation be shared equally between the parties. Sometimes to bring about a settlement a party will agree to pay the full costs of mediation. But I have never had the issue of costs if the mediation is unsuccessful raised by counsel. Without opening up Pandora’s Box, is the failure to do so by counsel grounds to form a potential negligence claim?
I have set out below one possible approach to the problem through provision in a mediation agreement. This is the UK model and may or may not work here but it is certainly worth considering.
Proposed Costs Provisions for Mediation Agreement1
Fees, expenses and costs
21. Subject to Paragraph 23 below and unless agreed to otherwise in writing, the Mediator’s fees and expenses will be borne equally by the Parties.
22. Subject to Paragraph 23 below, each Party will bear its own costs and expenses of its participation in the Mediation including the cost of the venue for the Mediation.
23. In the event that the case is not settled in mediation, the Parties agree that the actual fees, expenses and costs referred to at Paragraphs 21 and 22 shall be deemed to be costs as if the mediation was conducted under Rule 24.1 or Rule 75.1 of the Rules of Civil Procedure as the case may be and shall be recoverable as such.
The provisions of paragraphs 21 and 22 above shall not affect in any way any right of any Party on a post-mediation assessment of costs to seek to recover the costs referred to at Paragraphs 21 and 22.
*Colm Brannigan, LL.M. (ADR) is a chartered mediator and arbitrator. He can be contacted at colm@mediate.ca or through his website www.mediate.ca. A shorter version of this article appeared in the January 2011 edition of his e-newsletter, Mediation and Other Stuff.
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1 Colm would like to thank his colleague David Cornes, a commercial mediator in the UK for kindly providing him with a copy of his precedent which Colm adapted slightly to the Ontario Rules. David’s website is www.mediatewithcornes.co.uk
The other day I got a phone call from a litigator seeking a mediator for an upcoming case. This turned out to be a short conversation. It began with her asking if I were “an expert in estates matters.” It ended when I replied that I was not, but had successfully mediated many estates disputes in my 20+ years as a mediator. “That’s fine,” she said, “but I would prefer an expert in estates matters. Thanks anyway.”
This exchange got me thinking once again about the efficacy of using experts-in-the- field as mediators––for example, a doctor to mediate malpractice disputes, or an engineer to mediate design or other engineering issues––instead of a generalist mediator or a mediator who focuses on a specific area of interest.
I’ve moderated and participated in many panel discussions on this debate over the years and it’s been the subject of many casual conversations. As you might expect, I always come down firmly on the side of the generalist. In my experience, the well-honed mediation skills and techniques of an experienced mediator trump expert knowledge almost every time. I’ll take this one step further and assert that too much expert knowledge can be a bad thing at the table. In the worst case scenario, it can stifle free-ranging discussion, hamstring problem-solving, hamper objectivity, quash creativity, and completely get in the way of achieving a settlement the parties may want.
When is an expert required?
To further this debate, I asked Douglas Strelshik, a North Toronto litigator who devotes careful attention to his selection of mediators, for his thoughts on the matter. Strelshik does opt for experts in some disputes, particularly highly technical ones. “And in some large personal injury claims,” he adds, “I find it very useful to have an expert who is familiar with quantums and all the relevant heads of damages.” All the same, he doesn’t select for expert knowledge alone. “In addition to being expert in the subject, I would want a skilled and somewhat aggressive mediator, not a shrinking violet,” Strelshik emphasizes. “Someone with the ability to (subtly) knock some sense into a litigant or counsel who is out to lunch on settlement expectations.”
Toronto mediator Gary Furlong also sees the validity of selecting experts to mediate in specific cases. “There are some good expert-mediators out there and they can be very effective in family law disputes, highly technical intellectual property disputes and even some extremely complex construction cases,” says the principal of Agree Inc., a full service conflict resolution firm. “But for the most part,” he adds, “I believe mediation skills should always be given greater weight than expert knowledge. Substantive knowledge alone doesn’t generally help reach workable settlements.”
No question is a stupid question.
Achieving workable settlements is the crux of mediation, and the crux of the expert v. generalist debate. In my experience, the best bet for successful agreements is having a generalist mediator at the table who understands the issues and the jargon––and has the willingness to ask free-ranging questions that open up creative brainstorming. Unfortunately, some experts arrive at the mediation believing they know all the answers, mainly because they do! As Furlong explains, “Some experts are too close to the subject matter. They don’t need to ask the ‘stupid’, ‘outside-the-box’ questions that generalist mediators do.” This also means that brainstorming will be short-circuited before it begins.
Strelshik puts it this way. “When I’m not completely familiar with a particular law or area of dispute, I like to hire a generalist. The generalist can ask all the questions needed to ferret out the information, and this can prove advantageous to settling.”
Perfection: the enemy of settlement.
There are other ways in which expert knowledge can be a hindrance to settlement. The generalist is trained to create an open atmosphere in which the parties can progress to a settlement that works for them. Experts, on the other hand, often sit down with “the perfect settlement” crystal clear in their sights. From their mastery of the data and by dint of their years of experience in that esoteric domain, they really do know the right way the dispute should go in order to uphold the tenets and traditions of the field. This can lead some experts to try to steer the parties in the direction of their own idealized solution, and away from the workable settlement the parties could agree to with the help of a capable generalist mediator.
What some experts do not recognize is that in all mediations, the settlement belongs to the parties, not to the mediator and not to the parties’ counsel. If the parties deem the settlement acceptable and are willing to sign on to it, that is the only test of quality that matters. Above all else, the mediator must remain neutral and never become invested in any settlement. Speaking for myself, the most difficult part of mediation is helping the parties come to an agreement that I would not accept for myself. Maintaining objectivity would be even harder for the mediator who is an avowed expert in the area of dispute, but not in the complex profession of mediation.
Yet another expert?
Finally, allow me to state the best case against using experts over generalists...namely, enough is enough. Experts are essential for building a case prior to mediation or trial, but not to achieving settlement of the dispute. By the time the dispute gets to mediation, counsel will have spent months or longer working on the file and developing quite an expertise themselves. Counsel on all sides will have had experts’ reports prepared in order to press their respective cases. Have all these experts achieved a settlement thus far? No. So why would bringing in yet another expert bring the parties to agreement? As Gary Furlong says, “if experts alone could regularly resolve disputes, there’d be no real need for mediation, or probably for trial, for that matter.”
In closing...
As Roger M. Deitz, Chair of the ADR Committee of the Bar Association of the City of New York, states in an online article, “The success of mediation rests upon each side's readiness to listen to the other and to honestly comprehend and respond to each other. Mediation is not evidentiary. It is not necessary to prove the facts at issue.”
The purpose of mediation is to resolve the dispute on the parties’ terms without having to prove the validity of one’s claim at costly trials. Therefore, it’s a rare case in which a mediated dispute turns on picayune knowledge of minutiae. In fact, the experienced generalist mediator is the only real expert in mediation, the only truly objective party at the table with the skills, insight and training to bring the parties to the settlement that works best for them.
*Fred Berenbaum is principal, Fred Berenbaum Mediation Services, an Ontario-based mediation firm. For more information, contact Fred at fred@fredberenbaum.com, or visit his website,www.fredberenbaum.com
Upcoming Program: The Impact of Effective Apology, With or Without Legislation
CBA Online PD program presented by the National Alternative Dispute Resolution Section
Speakers: John Peter Weldon & George Derwin
Date: April 27, 2011, noon-1:30pm EST
Legislation in several Canadian provinces (with others expected to follow) limits the potential legal consequences of an apology, increasing the likelihood of successful settlement negotiations. However, while an effective apology can lead to great results for all, with or without legislation, an ineffective apology can be disastrous and may well aggravate the conflict . Learn how to craft an effective apology with your client and the consequences of not getting it right.
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We are pleased to circulate the first ADR Section newsletter of 2011.
Marina Mussani*
Paul M. Iacono, QC*
Colm Brannigan*
Fred Berenbaum*
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