As a mediator, my job is to help the parties reach a resolution. In order to do so, I have to effectively negotiate both sides of the case. If you can convince me of the strength of your case by explaining it clearly, then I can go into the other room and do the same. 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 to help you”.
Winning at Mediation
I have said this many times: there is a big difference between settling at mediation and winning at mediation. You should put forward your best case at mediation, but the reality is that in many cases, counsel miss the opportunity to be a zealous advocate. Instead, they go through the motions when it comes to advocacy at mediation, doing little more than copying their pleading into a mediation brief and then showing up at mediation without a firm grasp of the case and evidence.
Since very few cases get to trial, and most cases that go to mediation settle there, mediation is often the “main event” and the only real opportunity to argue your case in front of a neutral third party. Ideally, as counsel you should show your mediator how strong your case is and enlist them to advocate on your behalf.
Bring the Evidence
This is true for every case, but the failure to provide compelling evidence is particularly noticeable in just cause cases. It’s no secret that I have spent a lot of time reviewing just cause cases and considering the law of summary dismissal. Between writing my book, You’re Fired! Just Cause for Dismissal in Canada, updating it twice a year, and practicing employment law for two decades, I am particularly aware of the intricacies when it comes to assessing whether an employer had just cause to terminate an employee or not. And I am often surprised when I ask if the employer has proof of the misconduct they are relying upon, only to be told “they will get it before trial if we don’t settle”. That is your case, and if the evidence is not strong, you have none. If it is, then you are in a much stronger bargaining position. Since mediation is often the main event, don’t hold off on preparing until a trial date that is unlikely to come.
If you are counsel for an employer asserting just cause, prove it. Start with your brief. Don’t just paste the Statement of Defence into a Statement of Issues. You don’t have to use the same form of mediation brief you always have, so be creative and draft it with the idea in mind of spoon-feeding your mediator. First, it does not have to be a mystery novel; tell me the conclusion upfront, ideally in a summary of key points at the top.
Then, if you are going to make allegations, back them up with evidence. This is not 1995; you will presumably be submitting a PDF in which you can include links to documents, websites, and video. If you have someone’s cell phone video of the plaintiff punching a supervisor, embed it right in the brief so I can easily watch it while I prepare. If the plaintiff posted pictures on Instagram of their trip to Jamaica while they were supposedly home sick, embed them or link to them.
When you do include documents, use hyperlinks to make it easy for me to read them at the relevant time as I review your brief. Do not just dump your entire Schedule A into the brief; include only the key documents, with a clear explanation of why they are relevant. For all other documents, you can make sure you have access to them during mediation if they become necessary.
As everyone reading this should know, whether or not just cause exists will be impacted by many factors and not just the alleged misconduct. So include information and evidence of those factors, including the employee’s disciplinary history, the relevant policies, and the employee’s response when confronted with the allegations. If the employee has engaged in prior misconduct (documented), that will strengthen your case. Conversely, if there are mitigating factors, address them upfront. If I am your mediator, you are better off tackling the weaknesses in your case head on rather than ignore them and hope that the other side won’t raise them, which is extremely unlikely.
Talk to your Mediator
Equally important: don’t allege just cause as a tactic when it is clearly not a viable argument; that will just hurt your credibility in my eyes and make it harder for you to convince me of stronger points. If your client insists that you include allegations of cause when you know they are weak, let me know, ideally before we start.
I am always happy to speak with counsel prior to mediation, so take advantage of that opportunity to tell me how I can help. If your client refuses to believe that just cause is not a strong argument, I can support you in explaining why that is true. But if you don’t tell me, I won’t know if you believe it too, and I will tread more carefully because I do not want to embarrass counsel.
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 is the difference between winning at mediation and getting a settlement.
ABOUT THE AUTHOR
Stuart Rudner is a leading Employment Lawyer with a growing ADR practice. Stuart is passionate about finding a resolution, and will work tirelessly and strategically to do so. He will adapt his approach to the circumstances, providing evaluative views but also exploring the underlying issues and other matters of importance to the parties when they are necessary to facilitate an agreement. Ultimately, Stuart recognizes that the parties have entrusted him to help them reach a resolution. While many mediators claim that they don’t “keep score”, Stuart does, because if there is no settlement, he has not succeeded.
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