Seeing the Silver Linings on the Cloud of “Failed” Mediations

  • 04 mars 2020
  • Megan Keenberg

Often parties describe a mediation process that does not result in a settlement as a failure. Focussing on the money spent preparing for the mediation, and for the Mediator’s fees, and on the time diverted from the litigation process, parties are typically blind to the myriad benefits of the mediation process itself, separate and apart from any resolution that may arise from it.  Here are the top 10 benefits to the mediation process, ranked:

10.          The parties can obtain early discovery of information or documents not yet available through the litigation process, enabling them to react to information that may affect their case and course-correct at an earlier stage.

9.            The parties may be able to obtain sensitive, confidential or privileged information protected under the cloak of settlement privilege that they would not otherwise have access to (e.g., a draft expert’s report or a third-party contract with a confidentiality provision).

8.            Seeing how opposing counsel conducts themselves is also valuable for gaining insight into their tactics and strategy, and how they might run a trial.

7.            Seeing how the opposite party conducts themselves can provide valuable insight into how well they may hold up under cross examination, how moving their story may be to the ears of a judge or jury, and any other intangible traits or quirks that may affect their credibility (for better or worse). 

6.            Well-written mediation briefs (i.e., those that are written for the purpose of mediation, and not just a recycled summary judgment factum) can help parties better understand their own case and the other side’s case (without the legalese of pleadings).

5.            Preparation for mediation helps counsel and parties hone their own case by drilling down on key issues and sidelining the procedural and tactical “noise” often inherent in litigation cases.

4.            Bringing parties together to discuss the dispute, hear each other’s point of view and respectfully express frustrations can take the heat out of emotions or grudges that are hindering settlement. Often once those emotions are addressed, the parties are able to move forward productively. Sometimes, however, an initial mediation is required to get the parties in a more productive frame of mind to resolve their dispute at a second mediation, or by direct negotiation.  

3.            Preparation for mediation helps to manage parties’ expectations about litigation risk assessment, including the total estimated costs to trial, costs incurred to date, probability of success for each claim or defence, any issues with enforceability or recoverability, and the non-monetary costs of litigation (time, morale, diversion from other income-generating work, stress). By gaining a more thorough understanding of each side’s litigation risk assessment, the parties will be better equipped to define their BATNAs and WATNAs.

2.            Getting the mediator’s point of view on the relative strengths and weaknesses of the case is invaluable. It can lead to coopering up arguments or tracking down better evidence where necessary to fill in gaps.

1.            The Number One benefit of the mediation process is also the least invoked. Some mediators (myself included) are qualified and amenable to case managing the dispute through trial. As a neutral who is already ramped on the issues in dispute and the party dynamics, the mediator is often ideally situated to help the parties resolve procedural issues that arise on the way to trial. For example, the parties could agree to appoint the mediator as an arbitrator to decide any issues arising from productions and discovery, or to help with setting out a timetable for the remaining phases to trial. With current wait times for a half-day motion in the Toronto courts, it is typically much faster (and cheaper since it avoids the dual ramp time required for motions scheduled well in advance) for parties to simply subcontract procedural issues such as refusals motions to a known and trusted neutral who can schedule a half day or hear the issue in writing in short order. With this kind of case management in place and available to the parties, the case can proceed quickly and efficiently to trial if necessary. This will be particularly valuable for cases which, by their nature, require real-time determinations and resolution.

As this Top Ten List shows, even where the parties are unable to reach settlement during a mediation process, the process itself and the ancillary processes that can arise from mediation (such as case management arbitration) can still provide tremendous value for the parties and their counsel in achieving fast, efficient, cost-effective and just outcomes.

About the author

Megan Keenberg is a partner and co-founder of Van Kralingen & Keenberg LLP, a commercial litigation and employment law boutique in Toronto. She is a Certified Specialist in Civil Litigation and holds a Master of Laws specialising in Dispute Resolution. In addition to her commercial litigation practice, Megan is also a Mediator and Arbitrator of commercial and civil disputes.

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