The Rules impose an arranged marriage between lawyers and mediators. Later on they may appreciate this arrangement, but at the outset one theme prevails: mandatory. Too often lawyers and mediators treat mediation with a lack of effort befitting their disdain. This is a mistake. A poor effort at mediation does a disservice to the client and undermines our court system. So here's a view of what mediators and lawyers really think of each other: the good, the bad, and how to improve.
An excellent opportunity to make a bad impression
Mitchell: As a mediator, I appreciate a thoughtful, informative and persuasive brief that doesn't tell me too much (the entire productions brief) or too little (recycling a pleading). Counsel should put the same effort into a mediation brief as they would a factum since most cases are resolved at mediation. A brief should be served well in advance. Giving us time to read, reflect and strategize helps everyone. Please don’t send it the night before.
Sam: Mediation briefs are our best opportunity for advocacy because they let us cut to the core of the case without being weighed down by any structure. Cutting and pasting a pleading is lazy writing, poor advocacy, and should be avoided. But written materials are not a one way street; how a mediator reflects those materials can set the tone for the mediation. If care is taken in the writing then care should also be taken in the reading. It is frustrating when a mediator makes it clear that major points have been missed. Conversely, a mediator demonstrating a thorough understanding of the written materials gains considerable credibility and the parties’ confidence.
Why putting people who dislike each other into a room together is not always productive
Mitchell: The brief is particularly important where there is no initial joint session. This brings me to procedural issues. Some lawyers hijack the mediation by imposing their will on the process. For example: "I won't meet with the other side" or "I must make an opening statement.” They may disregard the mediator's recommendations and even the Rules. Some counsel won’t bring an interpreter where there is a language barrier – making communication with their client impossible. Others won't permit the mediator to address the client directly. Some don’t even bring their client to the mediation.
Sam: It is a mediator’s mandate to find common ground, at least on the terms of a settlement. However, while a mediator should have wide discretion on structuring a mediation, some attempt to reach this common ground by trying to lighten the mood and getting the opposing clients to like each other. Please avoid this route. Some of the most effective mediations have little or no opposing client contact. While avoiding contact is not always appropriate, personality conflicts can easily trump reason, logic or a sound business decision. The parties aren’t looking to heal their relationship; they are looking for the cleanest, cheapest, and least painful divorce. The mediator must have a good read of the personalities involved (both clients and lawyers) and prevent clashing personalities from having a further opportunity to fight.
An honest assessment
Mitchell: So we can’t just all join hands around the table and sing Kumbaya? I understand. However, during the confidential private sessions, counsel should be mindful of their forum. Advocacy is welcome, but tailor your advocacy to a mediation. You should think twice before threatening to leave, ignoring obvious weaknesses or painting yourself into a corner with an unrealistic "take it or leave it" offer early in the day. Consider how you would react if confronted with the same behaviour from opposing counsel. Not caring about perception, and disregarding the mediator’s advice in this respect, will derail a mediation.
Sam: You mention “the mediator’s advice.” In many ways, the confidential session is the most important part of a mediation because a mediator can give a party what they may be lacking most: perspective. It is easy to get caught up in your own side’s facts and arguments that any peripheral vision of the case is lost. Managing the client’s expectations is critical, especially before the mediator provides the “verdict.” A mediator who provides an honest and thorough assessment of a case – as opposed to vague hypotheticals: a court could find this, or that, or neither – is providing a valuation of the client’s asset, namely how strong or weak and consequently how valuable the case is. Hopefully, the mediator will confirm discussions you’ve already had with your client, which is a validation of your advice. Until your client gets this honest assessment, then it will be difficult for them to accept any settlement.
What works: Why settlements happen
Mitchell: It sounds like you prefer evaluative mediation. Not all lawyers want evaluative mediators and not all mediators are evaluative. Some, like me, employ both evaluative and interests-based techniques. It’s vital to know what you want and what to expect from a mediator before hiring one – or you may be sorry later. This is part of the lawyer’s role in managing expectations. However, managing expectations must begin when the client first walks into the lawyer’s office – not near the end of a mediation years later. Mediators work hard at managing expectations, identifying interests and revealing hidden costs to help reach a settlement – but we are not magicians. If you haven't set the stage, don’t expect an award winning performance.
Sam: The purpose of a mediation is not to reach a settlement but to see whether a settlement is appropriate and possible. A settlement is a potential product of a mediation; it is not its mandate. Settlements work when the elements discussed above – good written materials by both sides, a procedure which doesn’t foster conflict and an honest evaluation by the mediator – have given the client an indication of a case’s value and whether it is appropriate to resolve it now. All of that gives the settlement terms a logical basis which the client can understand and accept. The settlement may not provide everything the client wanted, but the mediation should provide the client with the reasoning necessary so the settlement makes sense.
Mediation should be looked at as an opportunity rather than a burden. Lawyers and mediators may see the world differently as we’ve identified above, but they should start to work together better. Common ground needs to be established between lawyers and mediators before common ground can be obtained between clients. If not, then as the saying goes, we’ll see you at trial – or, at the very least, an all-day (and, possibly, all-night) pre-trial. Be careful what you wish for.
The title of this article is a play on Anthony Bourdain's really good book Kitchen Confidential: Adventures in the Culinary Underbelly (Bloomsbury Publishing, New York: 2000) because we couldn't settle on a good title and we ended up with a compromise title which left neither of us truly happy.
About the Authors
Mitchell Rose is a mediator and a civil litigator. He is a partner with Stancer, Gossin, Rose LLP and ADR@SGR in Toronto.
Sam Sasso is an associate practising civil litigation at Ricketts, Harris LLP.