This is all about how to win at mediation, and I know that might sound like an oxymoron but it’s not. To me there is a big difference between settling and getting the best possible deal at mediation or otherwise. Now a growing part of my practice is spent as a neutral mediator and I have to say it’s very satisfying to help parties reach a resolution to their disputes, and while I do settle almost all my mediations and I’m proud to say that, I find that sometimes it’s despite the poor preparation of the parties and their lawyers, instead of because they came well prepared. I want everyone to remember that the odds of going to trial are minimal. Statistics I’ve heard are that less than two percent of claims filed in court actually get to trial, so the odds are extremely likely that your case is going to settle, it’s just a question of when and for how much, and again the key here is to get the best settlement you possibly can. Now one of our most popular videos on our YouTube channel is all about tips for successful mediation. That video is a few years old, it actually predates the pandemic, so I thought it’s time for an update. This video is really directed to anybody who’s going to be a party to litigation or mediation and I encourage counsel to send this to their clients well in advance of mediation so they can be well prepared when they get there, and when you start working on your brief. So without further delay here are my top tips for parties at mediation.
Work with your lawyer to prepare a strong mediation brief.
This is critical and you have to remember that the mediation briefs are the only thing that I as a mediator am going to see before we arrive for the mediation hearing, so why waste a chance to show me the strength of your case as early as you possibly can. I encourage all the parties to put together a very strong, easy to read brief, focusing on your strong points and essentially spoon feeding them to me. Make it as easy as possible for me to understand them. I always say that to people. First of all don’t bury your strong points with a bunch of weak points, just give me the strong ones, and if you make allegations back, them up, give me the evidence whether it’s documents, whether it’s video, audio, witness statements, whatever it is. There’s an old expression that you’ve all heard, that the best way to achieve peace is to prepare for a war. I’ve adopted that or adapted that slightly to say the best way to achieve a good settlement is to prepare for trial. So gather all the evidence that you possibly can that will help your case in advance, put in the brief, we’re not in 2000 or sorry we’re not in 1980 anymore, this is 2022 and rapidly approaching 2023, use a digital brief with hyperlinks and embed videos, audios, documents, make it as easy as possible for me as your mediator to see what you’re talking about and how you’re going to prove the allegations you make.
Make sure that you mediate at the right time.
Now I’m a big believer in early mediation but I also recognize that some cases don’t lend themselves to that. If you have a very complex case, if there’s allegations of just cause, it’s very fact and evidence heavy, you may need to go through discoveries first or sometimes what we do is we’ll split the mediation, we’ll mediate some of the points such as for example what the severance period might be and we’ll do that early, but then we’ll wait to mediate the just cause arguments until after discovery. You can mediate pre-litigation, early in litigation after examinations or discovery, or on the eve of trial or summary judgment, that’s all up to you, but I encourage you to mediate as early as realistically possible given the nature of the case.
Make sure you choose the right mediator.
There are lots of mediators out there. First of all you want someone with subject matter expertise. My practice for the last 23 years has been employment law, working with employers and employees, I’ve also been mediating employment matters for many years. I will bring my experience and my knowledge of both litigating and mediating to the mediation. So choose someone who has knowledge of the subject that you are dealing with and also choose someone with the right personality, and that is not the same in every case. If you have a case that is very emotional or a party that is very emotional or you’re very emotional, you want one type of mediator. If it’s a very fact, business type of case, you may want a different type of mediator, but talk to your lawyer, choose the right person for the job.
Come in with an open mind.
I cannot tell you how frustrating it is when parties come in and say, you know, within five minutes of starting, this is my bottom line and I’m not going to go anywhere beyond that essentially. First of all, every settlement involves some compromise, second of all, if you hire me as I mentioned a minute ago, you are hiring my expertise, my experience over 23 years of litigating, and also many many years of mediating employment cases. If you make up your mind before we even start talking you’re basically wasting an opportunity to get my views of the case, of the strengths, of the weaknesses, and also what I think about how it can be resolved, and what’s likely to happen if you can’t reach a resolution. Also remember that mediation is going to be the first time that a neutral third party is assessing your case so pay attention to what the mediator has to say.
Don’t be afraid to talk.
Sometimes we have people who assume that their lawyer is going to do all their talking and they’re not allowed to. This is not a trial, this is a mediation, it is fairly informal and I also want you to remember it’s confidential, so what you say can’t be used against you but it can’t help you. When I’m mediating, first of all I want to hear from the parties because I want to assess their credibility, second of all I want to hear from them because frankly you know the facts better than anybody else including your lawyer, so don’t be afraid to talk to me as a lawyer, also don’t be afraid to question me if you don’t agree or understand the points I’m making or the opinion I’m offering, question me and ask about it and I’ll do my best to explain it to you so that we can hopefully move past any impasse and get towards the settlement.
Remember that I am your advocate in the other room.
In 2022 most employment mediations don’t involve a whole lot of time where all the parties are in the same room, we engage in what we usually call shuttle to diplomacy, so I’m essentially going back and forth physically or virtually between the rooms and when I’m in the other room I’m essentially putting forward your case, so make it easy for me, spoon feed your case, your points, your evidence, to me, give me the ammunition I need to work with. It’s really not very compelling when I hear parties say oh we’ll produce the evidence if we can’t settle. If I go in the other room and say that, they’re going to assume that you don’t have any evidence, so give it to me and that will help me to get you a better deal. Again the best way to achieve a good settlement is to prepare for trial, so prepare for mediation not quite the same way you would prepare for trial but similar, gathering evidence, make sure you have it, and spoon feed it to me.
Make sure the decision maker is present.
This is geared more for the employer side or the corporate side of things. Mediation is a process, it’s very frustrating when we’re told that the decision maker is not present and will be available by phone or something like that. You need to go through the process, discuss the issues, discuss the goals, the concerns, the risks, it’s very hard when we spend hours and hours doing all that and then I’m told that one of the parties will have to call someone and in about five minutes expect to get their agreement to what we’re proposing. Frankly that person’s not going to understand why we are recommending what we’re recommending because they haven’t lived through the whole process. Particularly if we’re doing a video mediation, which is the vast majority of mediations these days, it’s very easy to have the right people at the table, so I would strongly recommend doing that. If it’s not possible, it’s also even more frustrating when I’m told that the parties are going to have to call someone and I am politely or less politely told to leave the room while you do so, if we’re going to have to do it this way remember that you hired me for a reason, you hired me to help you reach a deal, and let me help you do that by explaining to the decision maker why we’re saying what we’re saying, don’t shut me out, interpret, and then see what happens.
Realistically assess your BATNA.
BATNA is the best alternative to a negotiated agreement, so in other words what happens if you don’t settle, how long is this dispute going to last, how much is it going to cost, can you handle the stress, the uncertainty, and everything else that goes along with it. If you’re an organization, do you really want to be allocating your resources to fighting it as opposed to doing what you’re supposed to be doing in your business? Take all those things into account, assess what it looks like if you don’t settle, and then you can measure that against any potential deal on the table and decide if it makes sense to settle or not.
Remember that you can’t change the past no matter what happened.
No matter how poorly you feel you were treated, you’re never going to change it, all we’re talking about now is the best path forward for you, and as I said, basically it’s continuing on with some sort of litigation or settling, you’re never going to change the past.
Confide in your mediator.
As I said before, it’s a confidential process and it’s made that way for a reason, so that you can feel comfortable being candid with your mediator, both about the facts but also about your goals and your potential settlement range, so explain your concerns, explain your goals, be candid about the evidence, be realistic, if you don’t think that you have a strong argument on certain points, don’t try to make them, acknowledge the weaknesses, it’ll make you a lot more credible if you acknowledge the weak points, and then we can focus on the strong ones. It gives you credibility and it also allows me to go in the other room knowing what the real issues are. And don’t bury the real issues amongst a whole bunch of issues that are not strong, because it becomes a lot harder at that point.
Listen to your mediator.
As we’re going through the process, I’m assessing the case, I’ve been in the other room, I’m also assessing the parties and I’m assessing how the case can settle, and if it doesn’t settle, what’s likely to happen at trial, so again I will bring my years of experience both as a lawyer and as a mediator and I will give you my honest thoughts as to what is going to happen or what is likely to happen and how we can get a deal done, so please listen to me and hopefully we can reach a deal that way. If you close your ears essentially and don’t want to hear it, we’re really wasting our time.
Be open to creative ways to solve an impasse.
A lot of times we make great progress in mediation, we can recover hundreds of thousands of dollars, we’ve got the parties really close, we can’t bridge that final gap, and sometimes it’s because nobody wants to accept the other side’s offer which is why in many cases I’ll use what’s called a mediator’s proposal, where the offer is not coming from one side or the other, it’s a suggestion from me and if both agree we’ve got a deal, if neither side agrees or only one side agrees, there is no deal. That’s one way to resolve a dispute. The other one is med-arb or mediation arbitration, which typically you’ll agree to beforehand but essentially you agree that if you don’t settle at mediation, we’re going to arbitrate and that’s another way to ensure that one way or the other, there’s going to be some finality which a lot of people value.
So those are my top tips for how to succeed in mediation, I’ll mention again that I am working to expand my mediation practice and I would really love to work with you, so if you’re a lawyer in Canada please contact me if you have a matter I can help you with, and I say in Canada because the beauty of video mediation means that we’re not restricted geographically anymore, and I can help you in almost any location because we can all log in from wherever we are, and if you’re a party getting ready for mediation or contemplating mediation please mention to your lawyer that I am available and would love to help you. Thank you very much thanks for tuning in, have a great day.
