After conducting and attending hundreds of mediations between us —as both lawyers and mediators— we’ve seen a wide range of approaches from counsel. Some are thoughtful and strategic. Others… not so much.
Mediation is often the last, best chance to resolve a dispute before significant time and money are lost, and unnecessary risk is incurred. But despite good intentions, we’ve noticed certain lawyer habits that tend to get in the way of productive negotiations. Effective mediation advocacy requires a thoughtful negotiation strategy and careful preparation.
Meditations are more productive, and client satisfaction increases when lawyers make small shifts in how they prepare for and approach the process. So, in the spirit of being helpful (and saving time), we offer this simple format: Instead of (doing) that….do this… What follows is not intended as criticism, but instead as practical suggestions drawn from real-life experience.
Instead of:
Attending mediation without first obtaining your employee client’s full mitigation details and the particulars of any EI benefits received.
Do this:
Be sure to obtain and to disclose to O.C., in advance, your client’s full mitigation particulars, including their up-to-date job search log, copies of their job applications and related documents (if, after checking with O.C., they request same), any offers of employment received, pay slips/T4s to establish mitigation income, etc.
As well, have your client provide a summary from Service Canada of any EI received, including dates and gross amounts, in case O.C. requests this information before or (more likely) during the mediation.
Instead of:
Just cherry picking the cases you include in your mediation brief to support your position on reasonable notice - including selecting only the most extreme high/low cases and even ones with vastly different facts.
Do this:
Include a more balanced summary of the case law that reflects an actual search result used to predict notice, along with a detailed analysis about i) why the supportive cases actually apply to your client, and ii) what distinguishes the unsupportive cases from your matter.
Instead of:
Having a client representative attend with you at mediation who only has limited authority based on your pre-mediation analysis (before you have the benefit of receiving the mediator's view of the case)
Do this:
Ensure your decision-maker has full authority or the flexibility to adjust their position after hearing the mediator’s perspective and considering any new information that arises.
Instead of:
Making a first offer that is unreasonably high or low and then making incremental concessions over a lengthy period of back and forth.
Do this:
Make a well-reasoned opening offer that reflects the strengths and weaknesses of your case and signals a genuine interest in reaching resolution efficiently.
Instead of:
Refusing to make a first offer, regardless of the reason, and insisting the other side goes first (even after they refuse).
Do this:
Take advantage of the opportunity of making the first move because the “anchoring effect” demonstrates that eventual settlements are influenced (or, “anchored”) by first offers.
Instead of:
Waiting until a deal is very close and then introducing new terms.
Do this:
Identify and raise all material terms early in the process to avoid derailing momentum and to promote transparency and trust (and to avoid accusations of “bad faith” by O.C.).
Instead of:
Absolutely refusing to consider an (income) tax-effective allocation of settlement funds.
Do this:
Remain open to tax-effective structuring where it is legally supportable and mutually beneficial, recognizing it can help bridge valuation gaps.
Instead of:
Preparing for mediation by just assuming that the opposing side has the same expectations about the allocation of settlement funds and not preparing for any other possibility.
Do this:
Have a flexible approach so that you and your client are prepared for multiple potential outcomes.
Instead of:
Saying an offer is “final” when it is not actually final.
Do this:
Reserve the term “final offer” for when you genuinely mean it and use language that maintains credibility and leaves room for movement, where appropriate. Also, when you are close to your bottom line, consider asking the mediator to make a mediator's proposal to avoid the common challenge of each party wanting to have the last word.
Instead of:
Reaching a deal in principle during a virtual mediation and then just leaving minutes of settlement and the release until the following day(s), only to later get into a dispute with O.C. about what terms were or were not to be included, and how they should be worded (or, worse, deal with a client with buyer’s remorse who refuses to approve or sign).
Do this:
Ensure that everyone stays on the Zoom/Teams meeting until all settlement documents are agreed upon and executed, with the mediator there to help resolve any issues that may arise. As well, if you are employer-side counsel, assume that you will prepare the first draft of settlement documents, per custom Be sure to have your drafts ready prior to reaching a deal so that, later, you need only to plug in numbers and the rare, custom-drafted term.
Conclusion
At mediation, we all share a common goal: in most cases, counsel, parties and the mediator all want to find common ground and reach a resolution. Mediation shouldn't feel like trench warfare, nor should it make people feel as though the other side is being unreasonable and can’t be trusted.
A little more preparation, a little more flexibility, and a little more candour can go a long way toward getting the deal done—and keeping your client (and your mediator) happy in the process.
At the end of the day, effective advocacy at mediation isn’t about who argues the loudest or who “wins” the negotiation dance. It’s about getting to a resolution that works. As lawyers-turned-mediators, we’re always rooting for the lawyers who make the process smoother—for their clients, and for everyone else in the room.
About the Authors
Mitchell Rose is a mediator and arbitrator of employment law disputes. He is the principal of Rose Dispute Resolution based in Toronto. Mitch currently serves as the OBA Labour & Employment Law Sections’ Newsletter Editor and will serve as its Secretary in the fall of 2025. Mitch’s available dates can be found at https://mitchellrose.ca/online-calendar/, and he can be reached at mitch@mitchellrose.ca.
For two and a half decades, Stuart Rudner has immersed himself in the world of Employment Law, helping employers and employees to understand and enforce their rights. He has a growing mediation and arbitration practice focused on employment law disputes. You can learn more and check his availability at https://www.rudnerlaw.ca/alternative-dispute-resolution or contact him at 416-864-8500 or stuart@rudnerlaw.ca.
Any article or other information or content expressed or made available in this Section is that of the respective author(s) and not of the OBA.