Getting Past Impasse with Mediator Settlement Recommendations

  • April 08, 2019
  • Mitchell Rose, chartered mediator and settlement counsel, Stancer, Gossin, Rose LLP

I conduct mediations in the Province of Ontario, Canada, including employment law, commercial matters, personal injury and real estate. The majority of my mediations take place after the commencement of legal proceedings, and involve parties represented by lawyers.

In many cases, examinations for discovery have taken place – but a judicial Pre-trial usually has not. Often, there is a summary judgment motion scheduled to take place in the months following mediation. It is unusual for more than one mediation session to be held in these actions, and many of them are scheduled by counsel for less than a full day.

Accordingly, the stakes are high for all participants. Reaching the end of a mediation session and learning that the two sides are far apart in their settlement positions can be disappointing due to the risk and costs that will soon follow as the case heads speedily towards a hearing. Without further intervention (like a Pre-trial judge) or the threat of court feeling more “real” (because trial is close), the parties may not be prepared to bridge the gap.

Thus, in the weeks following mediation, after the “dust settles,” I usually follow up with the lawyers. I want to see if hard positions have softened, or if there is another way of resolving the dispute. However, despite everyone’s best efforts, there may still be an impasse.

In a final attempt to resolve the dispute – whether at the end of mediation or at some later point – one or more of the lawyers often ask me to recommend (or to propose) settlement terms to all sides in the hope of reaching a deal. In fact, I may even be asked much earlier in the process: “What do you think we should do?” As a mediator who blends interests-based and evaluative approaches, depending on the circumstances and the participants, I will often, but not always, make settlement recommendations to break an impasse.