MEDIATION HINTS
A common problem at PI mediations is the "dropping of the video" by the insurer. Counsel typically will not show it
to the plaintiff counsel but will offer to have me look at it - although I am not to say specifcally what it shows.
This is a very unsatisfatory procedure. First, there is no point in having me do this. What am I supposed to say?
"I looked at a video and it is going to scuttle your client at trial but I cannot tell you how or why? " The first
problem is that the evaluation of the risk to the witness is often highly speculative. But the real problem is that
refusing to show the video to counsel erases his role as counsel. Why should plaintiff counsel take this from me
any more than he would take it from defence counsel? They never do. They always say, with varying degrees of
irritation, that they will ignore the threat unless they are given a chance to assess the risk. I understand the
defence is reluctant to offer particulars in order to maintain the advanatge for cross-examination. There is
however no useful compromise on this. The basic rule, with one exception, must be either show it or hold it.
The exception is when the defence wants to warn not the lawyer but the witness. "Presumably the witness knows
what really has happened. If the defence says to the witness: "I warn you that we have surreptitious video of
your activity, which you will not see until you are in the witness box at trial and I am cross-examining you. I will
not tell you what is in it, but I suspect you know. I just wanted to give you fair warning." And leave it at that. I
have seen that work. But often the reaction is, like to all secrets and surprises at a mediation, hostility.
In order to keep the hostility level down I also urge counsel to say something in their mediation brief.
Most mediations succeed. Why do some fail? The biggest reason, about 1/4 of all failures according to reports, is
a lack of settlement authority. Another 20% fail from "inadequate discovery," where a counsel - usually one
counsel - fails correctly to assess the facts or the legal risks, or, having made the appropriate assessment, fails to
persuade the client. The next largest group is where a counsel is hostile to the process.
My procedures are designed to avoid the first and third problems, and to overcome the second.
My mediations invariably fail, however, in those rare cases where lawyers do not seem to accept that it is their
duty to assess the risks dispassionately and then persuade the client those risks exist.
Of course, litigation brought to harass will invariably fail to settle, but usualy does not go to mediation. Then there
are occasional suits where "litigation fatigue" is not a factor for at least one party, either because they are too rich
or too poor to care.
When is the time ripe for mediation? The advantage of early mediation is that litigation costs can be saved, and,
one hopes, positions have not hardened. It is often said that litigation entrenches postion, but entrenchent
usually begins soon after the dispute arises, and parties begin to brood. Mediation must be very early to avoid
that phenomenon, and one must ask about the nature of the suit in order to guess whether it is not early enough.
The disadvantages of early mediation, then, are that (1) parties can still be fiesty from the fight that led to the
suit, (2) litigation fatigue has not had its effect, and (3) the facts may not be clear. In my experience, when
there is a gray area in the perceived facts, both parties tend to see these facts as black - in their favour. On
balance, early mediation in my experience is less successful than later mediation. But the poorer prospect for
success is not necessarily determinative - think of the huge expense one may avoid. I conclude that, even
though the chances of success at early mediation are not great, it is a worthwhile choice.
April Issue of OBA ADR Newletter has a good article by Barry Fisher about ten key topics at mediations of wrongful
dismissal cases:
1. Wallace damages - extended notice as a means of punitive award for bad faith
2. Mitigation - post-dismissal earnings and efforts to earn
3. Bonus - calculation of approriate bonus under employer's bonus scheme
4. Commission - calculations if appropriate
5. Legal fees - as always, plaintiff does not understand difference between cost and fees
6. Inducement - Did the employer hire the employee away from a job that offered generous security?
7. Independent Contractor - is this true employment as defined by law.
8. Constructive dismissal - did he quit or was he fired?
9. Just cause - rulings from collective agreement arbitration bleed into common law
10. Jury Notice - are these good cases for juries?
Want a refresher on good points for counsel at a mediation? Best seminar I know is the ABA ADR subsection
annual meet. Dozens of sessions.
Mori Irvine, a mediator with the US Court of Appeals 11th Circuit, offered Ten Commandments for effective
mediation advocacy at the ABA ADR meeting in Seattle in 2002:
1. Be professional
2. Use temperate language
3. Listen Carefully
4. Know the client's interests
5. Identify Common Interests
6. Show off your preparedness to the other fellow's client
7. Know your case
8. Seek a solution for both sides
9. Be ready to support your proposals
10. Never forget everyone must win
He also wrote "Better Late Than Never: Settlement at the Federal Court of Appeals", 1 Journal of Appellate Practice
and Process 341, 351 (1999)
Listen to the other side. Too many lawyers use the remarks of other parties as merely a rest period while they
prepare their next sallies. Try to argue less and listen more. Often the remarks made by opposite parties
contain hints as to true positions, and in any event the only fruitful discussion is a consensus-building one. Try
to acknowledge the other's position and state the difference frankly. If your position has merit, then rely on the
force of your logic to persuade - and do not rely upon repetition or abuse.
Preparation is all-important for a successful mediation. Prepare yourself, your client, the other party, and the
mediator. Secrets and surprises are the enemy of effection negotiation. The worst surprise, and thus the greatest
impediment to success, is the dashing of unrealistic expectations. Lawyers sometimes but clients (both plaintiffs
and defendants) invariably have persuaded themselves their position is stronger than it really is. Counsel should
discuss the issues with the client, and also hand the client conflicting case reports to read, so they can themselves
see how tricky the issues are.
An Ont. Master (Davidson v Richman, Feb 3. 2003) has held that evidence of negotiations at a mediation is
privileged, even if there was no settlement.
A statement of regret at a mediation can be very effective in reducing tensions. An effective statement is
face-to-face, party-to-party, specific, clear, respectful, and acknowledges impact, even if it does not acknowledge
legal liability.
The most common mistake by lawyers at mediations is to address remarks at opening session to the mediator. The
audience at a mediation is not the mediator, it is the other lawyer's client ! What a wonderful opportunity for an
advocate. Do not miss it.
I am told that, at Edmonton, in 2002, there were 7 civil jury trials. In three, the jury dismissed the case. In two,
general damages of less than $5,000 were awarded, and in another just $10,000. Nobody seems to know the
Calgary stats.
Alberta lawyers include far too many reports and exhibits with mediation briefs. Alberta briefs on average are 3
times the size of briefs from BC lawyers. Come on Albertans, save those trees - exercise a little restraint.
Few BC lawyers follow Form 2 in the Notice to Mediate, which is a good thing. In addition to a brief summary of
facts and issues, required by the Form, an effective brief contains a brief statement of the party's position on the
issues and a first offer. A brief to brief me should be brief indeed. Keep in mind I learned a few things over the 47
years since my bar admission. I appreciate however that sometimes a brief is also addressed to the other parties.
Counsel should always know what style of mediation the mediator will follow, and if unsure about that or unsure
whether all parties have the same understanding, should call for a pre-mediation conference (Usually a
conference call. Just ask Sandra at ADR Chambers and she will set it up.) There are many different styles of
mediation. Unless asked to do otherwise, I plan on an interests-based mediation, where I try mainly to be
facilitative, but will be evaluative (i.e. question or comment on the merits of positions) where it seems called for.
Often I never need to make any evaluative comment, and I try hard to let the parties deal with the issues
themseleves - at least until I see hardened impasse. I do not entirely disregard the transformative side of
mediation (meaning the parties seek to improve their human relationship). Some of that is essential for effective
mediation.
The BC Notice to Mediate.Click HERE to see the new Rules. This process is used with increasing frequency, and
seems to have a place. Some lawyers fear it will be seen as a sign of weakness to suggest mediation, and this
process undermines that fear. The BC process (Alberta has nothing like it) is much like processes now widely used
in USA. American lawyer-mediators, however, worry that they act as officers of the Court in such mediations, and
have a duty to comply strictly with the Rules, and report any improper behaviour or breach of the Rules. This is
antithetical to the terribly important idea that a mediator is always a neutral. In my view, as a general rule, it is
for the party aggrieved to make any reports to the Court, not the mediator. I will not sign or file a mediator's
certificate unless a party so requests, and I will limit my report to the matters provided in Form 5, appended to
the new Rules. If anybody seeks to have me disclose to the Court what occurred at a mediation, I will retain
counsel to invoke privilege. I have not as yet been asked to sign a Form A Certificate, and the practice seems to
be to employ it only in extreme circumstances.