There is something that I say to the parties at every mediation I run: “The only reason to settle is if it beats the alternative”. In most cases, the alternative is to continue on with litigation. And as we all know, a miniscule number of cases actually make it all the way to trial; last I heard, it was under 2%. That’s a good thing, since if more cases went to trial, our already overburdened justice system would have an even greater backlog.
Resolving a claim at mediation is good, but winning at mediation is even better. After all, anyone can settle. As an advocate, you should work to get the best result for your client, whether it is at trial or at mediation.
When we prepare for trial, we leave no stone unturned, and we spend every minute necessary to develop a strategy, gather the evidence, and craft persuasive arguments. Conversely, many lawyers do little more than go through the motions at mediation, copying their pleading into a mediation brief and then showing up at mediation without a firm grasp of the case and evidence, planning to “see how it goes”. Although they may resolve the case, they do not get the best result for their client. As a mediator, I often finish my review of the briefs without any clear idea as to what the real issues are and what each party truly intends to argue.
This is a missed opportunity and a disservice to our clients. Since very few cases get to trial and mediations result in settlement, it is often the only real opportunity to argue your case in front of a neutral third party and get the best result. As counsel, your job is to show your mediator how strong your case is and enlist them to advocate on your behalf. The easier that you make it for me to understand your case, the easier it will be for me to put your case forward in the other room. As I often say, at mediation, you want to “help your mediator help you”.
The Mediation Brief is your first chance to get me on your side, so don't waste it. Don't simply copy and paste your pleading. And in 2021, you don’t have to use the same format you always have; be creative, use hyperlinks, embedded videos, and anything else you can think of to draw the mediator’s attention to the key points and evidence. At the same time, don’t use the kitchen sink approach and obscure your strong arguments by surrounding them with weak ones. Put your strongest case forward clearly, and get the mediator on your side early.
I also encourage counsel to spoon-feed their argument to me. Your brief is not a suspense novel, and I don’t want to have to figure out what happened. Put the key information front and centre; for example, I love seeing a “key points” section at the beginning of a wrongful dismissal brief which sets out items like the length of service, employee’s age, position, compensation, and mitigation details.
Once you get into your argument, don’t make it a hollow one; if you make allegations, back them up. For example, in a cause case, include a concise summary of your position and the evidence to support it. An electronic brief can link directly from an allegation to the evidence; for example, to the video clip showing the Plaintiff assaulting their supervisor, or the harassing text messages they sent.
There is nothing more frustrating than when I ask counsel for evidence of a key point and am told taught that “if the matter doesn't settle, we’ll get it”. At that point, they have missed the opportunity to settle the matter favourably. If I have the ammunition to get you a better deal, I will use it. If I don’t, I won’t have much to say in support of your position when the other side dismissed it as a “bald assertion”.
Some other tips for winning at mediation:
Consider When to Mediate: While I am a proponent of early mediation, in some cases you will want to have discovery evidence first.
Consider Where to Mediate: I am a big believer in video mediation, and the last year has only strengthened my view. Among other things, it is more convenient and more cost-effective. It will also allow parties, particularly plaintiff employees, to be more comfortable and therefore more amenable to settlement. And it will allow corporate parties to have the decision-maker participate fully, rather than sending an underling and having the real decision-maker “available by phone”; the other most frustrating experience for a mediator is being unable to speak to the person controlling the “purse strings”, which often precludes settlement. After all, corporate counsel in Houston is unlikely to come to Toronto for a wrongful dismissal mediation. However, with video mediation, it has become a lot easier to have them take part.
Bring or Have Access to All Potentially Relevant Evidence: If an unexpected issue arises, be prepared to respond and show the mediator why your position is right, rather than saying “that must be at the office” and missing the chance to make a compelling argument.
Enlist your mediator: I can help you. I’m always happy to speak with counsel before the hearing so I can get a head’s up about any issues, whether those are between the parties or between you and your client. I don’t want to embarrass counsel, so I will tread carefully if I am not sure whether you feel as strongly as your client about a position that I see as untenable. But if you tell me that you need someone to talk some sense into your client, I will.
Use the Right Mediator: Consider subject-matter expertise, mediation approach (evaluative, interests-based or otherwise), personality (and how your clients will respond), and the nature of the allegations, so you can use the mediator that will be most effective.
Consider Med-Arb: Does your client want this to be over? Then consider med-arb, so that one way or another, the matter will be finished at the end of the hearing.
Consider Creative Approaches to Settlement: When I am mediating, I often use a “mediator’s proposal” to break an impasse. Another option is “final offer selection”, otherwise known as “baseball arbitration”, which can be an effective way to bring about finality without an extensive hearing and detailed reasons.
Don’t say “Final” Unless you Mean it: Making too many “final offers” will hurt your credibility as well as that of your mediator.
Talk Listen to Your Mediator: I will use my expertise, training and experience to read both rooms. If I tell you that a particular offer is a bad idea, there is a reason for it, so please take my insight into account. In many cases, I will try to avoid the standard approach of conveying offers back and forth, inching toward a meeting somewhere near the middle. If you are candid with me, I can try to determine where there is room for settlement and if it doesn’t exist, I can try to create it. That might involve a mediator’s proposal.
The old saying is that the best way to achieve peace is to prepare for war. Similarly, the best way to achieve a good settlement is to prepare for trial. Use mediation strategically and effectively by preparing as if you were going to trial. I know that if I am your mediator, I will want to see and assess the evidence. If you can convince me your case is strong, it will be easier for me to help you achieve a good settlement. That will reduce the strain and our system, make your client happy, and improve your reputation.
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