As a mediator and a techie, I have frequently observed that we do not use technology to its full potential. That is true in our day-to-day lives, and particularly true when it comes to advocacy at mediation and arbitration. The reality is that most mediation briefs that I see don't look all that different than the ones that I worked on when I was a junior at the end of the last century. However, we have so many tools available to us now to put the strongest case forward and convince your mediator or arbitrator of the strength of your position that is a shame to let them go to waste. Below are a few suggestions for how you can be more effective as an advocate in the context of alternative dispute resolution processes.
A Kick-Ass Modern Brief
I have often commented on the fact that the first opportunity that you have to influence your mediator is your brief. A good mediator will review the briefs before the hearing and although they will maintain an open mind, they will have started to form an opinion as to the issues in the case and the strengths and weaknesses of each side's position.
I always tell people that the best way to get me on their side is to spoon-feed the evidence to me so that I will understand what their position is and what evidence they have to support it. As everyone knows, the mediator is effectively negotiating both sides of the case. I have to go to the other room and put forward your position. If I put that forward and the other side asks me what evidence there is to back it up, and I have to say that I have not seen it yet, or it will be produced if we don't settle today, then my position is not going to be particularly strong, which means that yours will not.
Conversely, if you make it easy for me, I will understand your case and be able to put it forward strongly. For that reason, I encourage you to embed the persuasive evidence right into the text of your brief. In other words, if you are referring to something that could be proven by a photograph, video, audio recording, or text excerpt from a text e-mail, then embed that video, photo or other media right into the brief. There is a lot more to be gained by putting a video of an employee assaulting his colleague right into the brief rather than saying that the evidence will be forthcoming, or forcing your mediator to find the video buried in your materials. Similarly, excerpts of written communications can be embedded right in the document rather than forcing the mediator to find an attachment.
On that point, if you need your mediator or arbitrator to find a document in a digital world, use hyperlinks. You can hyperlink to locations within the same document, as well as to external documents. Either way, the key point here is to make it as easy as possible for your mediator or arbitrator to see exactly what you want them to see. If you make them look for it or work for it, they may not see it.
Track Offers and Settlement
During the course of mediation, there will be offers going back and forth. I have recently experimented with creating a document that both sides have access to in order to track the offers. That way there can be no confusion as to what has been offered so far; everyone can easily see what has happened so far and then respond accordingly.
Similarly, if an agreement has been reached, the deal should be properly documented before the meeting ends. In the old days, the lawyers would either sit together and draft minutes, or send them back and forth from room to room. When everyone agreed, we would print the minutes and have everyone sign.
With video mediation, we have many tools that can be used in order to get the document finalized and signed efficiently. Instead of sending drafts back and forth, counsel can collaborate in real time using Google Docs or Office 365. Once the wording has been finalized, you can do things the “old school” way by having each party print the document, sign it, scan it, and send it back. However, there are applications such as DocuSign, HelloSign, and others, which make things far easier; people can sign on their phones, and we will have metadata to prove who signed, when and where. I always use those at my mediations in order to ensure that everyone signs before we part ways.
Transcripts and Exhibits
With respect to arbitration, for a relatively simple matter, you could consider using the built-in transcription feature of zoom, or whatever meeting platform you use, in order to provide quick and cheap transcripts. While they are not perfect, they will often give you what you need.
There is no need for bound volumes and waiting to make sure that everyone has turned to the right tab. Use screen sharing in order to ensure that everyone is on the same page.
Scheduling
Even before you get to the hearing itself, use tools such as calend.ly and doodle in order to facilitate scheduling.
Pith & Substance
I could go on and on, but the point is that in 2024 we need to make sure that we are using technology in order to be more efficient and more effective as advocates. I do not think that artificial intelligence is going to replace lawyers anytime soon, but I do think that the lawyers who use technology more effectively are going to be in high demand and far more successful than their colleagues who cling to the ways that they have done things for decades.
About the author
Stuart Rudner is a mediator focusing on Employment Law Disputes through Rudner ADR. He is a tenacious problem-solver who takes advantage of more than two decades advising employers and employees, as well as years of mediation experience and training. 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. There is no one-size-fits-all in mediation. Contact Janis Buckley for available dates and to book a mediation.
About the author
Stuart Rudner has been practicing Employment Law for a quarter of a century and offers ADR services as a Mediator and Arbitrator. For more information, availability and to book him, contact Janis Buckley at janis@rudnerlaw.ca or 416.864.8504 or click here.
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