How to Ensure that your Case does not Settle at Mediation

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

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. 

Zoom Mediations: Are They Any Different Than What We Have Become Used To?

Since beginning my mediation practice in 2014, I have had the pleasure of assisting a significant number of lawyers and their clients in resolving their disputes with all parties present, either in a reporter’s office or in my law firm’s offices at Minden Gross LLP. Over the last year, of course, all of that has changed as every one of my mediations has taken place virtually, using Zoom.

While there is certainly no reason not to mediate using Zoom, I have observed some differences to which lawyers and their clients might wish to be sensitive. In no particular order, I have come up with the following observations.

  1. Opening statements have gone from mostly unnecessary to downright dangerous. My normal practice has always been to discourage opening statements. I always conduct a pre-mediation telephone conference with each counsel, separately, to gauge their interest in making opening statements and attempt to persuade them not to do it. As a general rule, they tend to be inflammatory and almost never contribute anything productive to the process.

    At least it could be said that when making an opening statement to someone sitting across the table, one is typically on one’s best behavior. As unhelpful as some of these statements have been, lawyers and their clients (who often insist on saying something as well) can usually be counted on to restrain themselves when their opponent is sitting in the room.

    On Zoom, all bets are off. Nobody is speaking to anyone across a table. Instead, one is speaking to a face in a little square on a screen. Unfortunately, this seems to result in considerably less self-restraint. As a consequence, people tend to get carried away and allow their emotions to run rampant. I end up starting off the mediation with two strikes against me before I have even come up to bat.

  2. It is far easier to become distracted. When in person, there is a limit to the amount of activity one can indulge in while sitting in a break-out room waiting for the mediator to return from a caucus with the other side. There is quite literally no limit to things that the client can get involved in during a mediation on Zoom. In my last mediation, one client spent some of his time meeting with his lawyer and me while driving with his phone angled up towards him from its perch on the passenger seat.

    Resolving legal disputes is rarely easy. A mediation will generally give a party to its dispute his or her best chance to settle. It is a process that deserves attention and focus. When I act as counsel to a party at a mediation, I always make a point of reminding my client that this is not a time to pick up children from school or take the dog for a walk.

  3. Exchanging new information can be challenging. As a general rule, I find myself mediating disputes after the exchange of productions and the conduct of discoveries. Usually, this makes good sense since parties are rarely equipped to engage in mediation without having all of the relevant information in hand. However, it is not uncommon for a party to come up with new information in the form of a previously unproduced (and possibly recently discovered) document. In a traditional mediation, a copy of the document can simply be handed to the mediator to be brought into the opponent’s caucus room. On Zoom, this process is significantly more complicated. For clients who are technologically savvy, such documents can be screen-shared with the mediator. The question as to how the mediator transmits that document to the other side may not be quite so simple.

    It follows that for a Zoom mediation, it is more important than ever to ensure that all of the documents that may be required for an intelligent and informed negotiation are produced in advance and circulated among all parties.

There is no doubt that Zoom mediations can be just as effective as in-person mediations. As a somewhat evaluative mediator, I often find it necessary to explain to a party exactly what it is that the other side is saying and to offer my own perspective. As my perspective is often not completely aligned with the views of the party with whom I am speaking, some element of advocacy becomes involved in the process. I have found that my effectiveness in conducting this part of the process virtually is no different than in person. In other respects, however, there are differences and Zoom mediations can be more difficult. I have tried to illustrate some of those differences above. Attention paid to these issues, in my view, will invariably contribute towards the success of any mediation.