On several occasions over the course of my years participating in mediations both as counsel and as mediator, I have come across a number of lawyers who clearly have no interest in settlement. This post is not directed to those lawyers. It is directed to those lawyers who do have an interest in settlement but, perhaps unwittingly, make mistakes that decrease the chances that their case will settle.
Here is a list of what I consider to be the most significant of these mistakes:
Raising New Issues
In Ontario, most mediations take place after the discovery process is complete. At that point, both sides should have a good idea of the cases they have to meet. However, it is not always so, and it is certainly not likely if the mediation takes place early in the process. This gives rise to the possibility that one side would be able to raise a completely new issue, for the very first time, at the mediation. Inevitably, it results in a good deal of wasted time and perhaps even the need to adjourn the mediation so that the issue can be fleshed out with the mediation resuming at a later date.
Similarly, a mediation is not a good time to bring forward any type of smoking gun for the first time, for the same reason.
Failing to have a Frank Discussion with the Client Prior to the Mediation
It is a serious mistake not to discuss with the client, in advance, the obstacles that he or she faces in achieving a successful result. It is also a mistake not to temper a client’s expectations by painting a realistic picture of how the case is likely to play out, and by not encouraging the client to recognize both the factual and legal challenges that he or she faces.
The client will certainly hear about all of this at the mediation. If the client is hearing this for the first time, this may lead to a rather embarrassing loss of confidence in his or her counsel, and with it, a severe reduction in the odds of reaching a settlement.
Failing to Explain the Process to the Client
The typical client will have only a vague idea of what a mediation is about. The client may even be under the impression that the mediator has some kind of authority to impose a result. Obviously, the client has to be disabused of that notion before the mediation. The client has to understand that there will be a great deal of downtime in the course of the exercise, and that when he or she is actively involved, there may be some unpleasant remarks made for which the client has to be prepared. Above all, the client has to understand that the case is almost certainly not going to settle unless some compromise is made.
Coming in to the Mediation with a Bottom Line Drawn in the Sand
In terms of compromise, a realistic assessment of the case should give the client a good idea of what a likely result would look like. Having said that, it is usually unhelpful to formulate, in advance, a bottom line position. It is more helpful to consider the range of possible results. At the top end, the range would consist of clearly acceptable results and obviously better than risking an adverse result at trial. At the other end, the range would consist of results that are likely unacceptable at the outset, but may have to be considered once the process unfolds. This is especially true if it becomes clear that the client’s assessment of the case was overly optimistic. The middle range, which is where most settlements are achieved, involves balancing an immediate and ascertainable result, as opposed to the uncertainty and expense of a trial.
Other mistakes I see all too often include:
Any of these mistakes can easily scuttle a mediation and deprive both sides of what is likely the best opportunity to resolve the dispute that they will ever have.