INTRODUCTION
Looking back over my mediation practice, I have made a concerted effort to investigate the reasons why mediations did not settle. What was different from those mediations that did settle? Not that that a failure in arriving at a settlement could not still bring some benefit to the parties, whether that meant possibly narrowing the issues in dispute, agreeing on a specific course of action going forward, agreeing on a statement of facts, or even being able to walk in the shoes of the other side and thereby gaining further insight into their case that might not be possible in discovery. The mediation can also provide a better handle on issues like credibility of each party.
WHEN THINGS GO SOUTH
Many years ago I was a teacher’s assistant to a lecturer in the Osgoode Hall Professional Development Program. In the course of the lecture, the Professor stated that when there’s a problem in the mediation room, look at yourself first.
Many times after a mediation that doesn’t settle I get a gut feeling that something did go wrong. Sometimes it comes to me right away. Other times it takes a day or so for the light to go on.
Recently I had two mediations, which ended without settlement. One proved to be salvageable, the other not.
CASE ONE
In the former case, a motor vehicle tort matter, the parties started with a difference in the range between $20,000 and $200,000. The parties actually ended $20,000 apart and became entrenched. The Defence side stated they had no more money. Plaintiff counsel ended the mediation. (Interestingly, Plaintiff counsel had correctly guessed what the Insurer’s opening offer would be.)
After two hours I contacted Defence Counsel who just happened to be writing his report to his client. Did I have permission to approach the other side in an attempt to suggest splitting the difference? After several minutes, I received a call giving me the go ahead. When I contacted Plaintiff counsel there was an instantaneous agreement to accept the figure.
Time, even a short period of two hours, provided both sides the ability to perform the respective necessary reality checks that couldn’t be done in the heat of the mediation. And it was also timely that the call to the Insurer counsel occurred while writing his report to his client.
CASE TWO
In the second case, also a motor vehicle tort case, there was an unfortunate hiccup, where the Insurer counsel, without fully thinking it through, suggested that the Plaintiff’s accent could be one reason why the Plaintiff could not gain employment as opposed to the psychological difficulties that she claimed she was suffering from the accident.
This elicited an outrage from Plaintiff counsel. Fortunately, the Insurer representative saved the day by assuring the Plaintiff, that her own presence of an accent did not prejudice herself, it would not prejudice the Plaintiff either. It was a display of genuine empathy or sympathy and support that enabled the mediation to proceed on course.
I then spent almost an hour in caucus with the Plaintiff and Plaintiff counsel going over the Defendant’s mediation brief.
Plaintiff counsel then asked to speak to his client privately and after a relatively short period came back with a decision that they were not going to make a counter offer.
Again, like the previous mediation, I contacted Insurer counsel to ask if there was interest in my pursuing the matter with the Plaintiff counsel, but unlike the previous mediation, two more days passed before Plaintiff counsel could be reached. The delay made no difference.
Plaintiff counsel was convinced that the other side would only go to a specific dollar amount and that amount was grossly below any amount that counsel could recommend to his client.
I always leave the door open to a reconvene. However, it was clear from the entire history of this mediation and perhaps something on a gut level that I realized nothing further could be done at that point in time.
What was in the room that made this later mediation different from the former one? What effect did the extraneous issue of the accent have? What affect did Plaintiff counsel’s prior experience have while dealing with this Insurer? What other issues could have been explored? Was there a problem in the room that this mediator should have considered, including the mediator?
I can confirm that this mediator did look at himself as one consideration to explore, but the confines of the mandatory mediation system as it now exists might better answer this question. Another factor could have been whether or not Plaintiff counsel had obtained cost insurance, thereby minimizing the risk of the cost in going forward as opposed to making a greater effort to settle earlier at mediation.
CONCLUSION
The more experience I gain as a mediator helps me to expand an intuitive sense of what needs to be done in any mediation at any point in time, as circumstances arise, and where the dynamics of the conversations take us. Of course when there’s a problem in the room I have to look at myself first, but I also have to look at my intuition gained over time of what can still be done both during and after the mediation. Time is key! In the first case, being able to contact the Defense counsel within two hours and being able to contact Plaintiff counsel right after I heard back from Defence counsel made a real difference and led to resolution.
In the second case, not being able to reach the parties for several days may have lost the chance to get things moving again. At the same time, other factors did come into play that affected the outcome to a greater extent.
Also, a mediator has to consider all possible options and tools that are available to him or her, at all possible times, whether before, during, or after mediation, including use of the developing trends of med arb, final offer, or even baseball arbitration, among others when and where applicable.
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About the author
Harold Arkin is a Chartered Mediator and member of the Ontario and Manitoba Bars. Harold mediates in the areas of Personal Injury/Insurance, Estates, Employment, and Civil/Commercial Matters. He has been involved in dispute resolution for over 23 years: https://www.OntarioMediators.org/harold-arkin.
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