As the process of Alternate Dispute Resolution (ADR) evolves, it appears to be developing several hybrids and variations. What is happening is that creative counsel are redefining the process for individual cases in order to suit the purposes of the particular dispute. The choice of the dispute resolution mechanism will be premised upon the type of dispute involved, and sometimes the litigants themselves.

RIGHTS-BASED DISPUTES – LEGAL ISSUES

Certain kinds of disputes do not lend themselves to mediation. These disputes would be ones involving disagreements over ‘rights’. These cases include disputes over titled property, which must be settled in a clear and unambiguous way as there is no grey area. Disputes where one party alleges that his or her constitutional or statutory rights have been denied also cannot be mediated. A classic example would be guilt or innocence in a criminal case or custody of children in a matrimonial matter. These types of disputes must be settled either by arbitration or traditional judicial fact-finding, and they must be based on evidence subject to the usual scrutiny. As a result, they simply cannot be negotiated.

In arbitration, the more difficult decision that has to be made is whether or not the arbitration will be binding or subject to judicial review. The ultimate decision depends on the desire for finality.

GREY-AREA ISSUES

When thinking about the mediation process I am often reminded of the words of Mr. Justice Edson Haines, who once stated that, “a law suit is not a scientific search for the truth but merely the resolution of a dispute”.[1] It is those grey area issues – such as quantum of damages in a personal injury case or the value of certain assets or property – that best lend themselves to the mediation process. These are the areas where there is no clear right or wrong. In these cases, it is a matter of working out a compromise that both parties can live with. In the area of motor vehicle litigation, perhaps the largest grey area is credibility. This aspect of any lawsuit can affect the ultimate result of both liability and damages, and can create a very wide negotiating spectrum.

OTHER FORMS

Sometimes it is possible to combine both arbitration and mediation. Combining these processes can prove beneficial when certain findings of fact are necessary, perhaps on a side issue or an issue such as liability in a car accident. Once those findings of fact are made and a decision is given on that part of the dispute, the quantum of damages can be mediated in the traditional way. To ensure mediator neutrality, the Arbitration Act in Ontario[2] has a section that stipulates that an arbitrator cannot act as a mediator for the same case once the arbitration has commenced.

Sometimes a dispute can best be solved through a combination of a pre-trial conference (neutral evaluation) followed by mediation, or mediation followed by a pre-trial conference in a situation where the mediation doesn’t resolve all of the issues. The kinds of cases that would fit into this category are those types of situations where one or both of the parties requires the advice of a third party – in whom both have confidence in – to express an opinion on the likelihood of the disposition of the dispute if it were to be conducted in court. In those types of situations where you are asking a third party to make findings of fact, some caution must be exercised. The third party conducting the fact-finding can become invested in the process, and may have to sell a certain scenario to one of the litigants. For this reason, it may be difficult for a ‘fact-finder’ to transition into the role of mediator, so you may require two different people to ensure that the mediator remains neutral.

Those using the mediation process today are sometimes resorting to binding mediation. In this process, the mediator makes a decision as to the results of the case if the parties are unable to come to an agreement. The mediator’s decision is implemented in the form of a judgment, which is final and not subject to appeal. This process carries certain risks, and you must be very confident in not only your case, but also in the mediator whom you choose to resolve it.

MEDIATION AS DISPUTE RESOLUTION – THE STYLE OF THE MEDIATOR

One of the advantages of ADR is that the parties can select the individual whom they wish to use as a facilitator. Under these circumstances, it is important to know the style of mediator you have chosen. Some mediators will not deviate from their facilitative or evaluative style, even if requested to do so. Therefore, it is important to know what style of mediator would benefit your case in advance. Regardless of the style, the mediator should not express personal opinions about any of the issues at hand. In a true mediation, the mediator is a facilitator who helps the parties arrive at a mutually acceptable settlement.

Going into mediation, counsel may be aware that his or her opponent is taking a position that cannot be substantiated in law. In this type of situation, you will want a facilitator who at some stage will be able to make a statement to the other side pointing out the deficiencies of their position. There are certain evaluative mediators who will conduct mediation on that basis. It is important that you know who those mediators are, as they will conduct a mediation this way automatically – they will not have to be asked. It is simply their ‘modus operandi’.

Another important ingredient in the style of mediation is the persistence of the mediator. Once again, this is a matter of style. Certain mediators will simply not conclude the mediation until a settlement has been achieved, regardless of how long it takes or how difficult it is to keep the parties talking. Other mediators will conclude the mediation when significant resistance is met. Once again, this is an aspect of mediation style and another reason why it is important for counsel to know the style of the mediator they have selected. Something else to be considered is the counsel’s own style of negotiating in the sense that if you perceive yourself to be an aggressive negotiator you may want a mediator who is aggressive, or vice versa.

The importance of selecting the right person to resolve the dispute can be illustrated by simply stating that as lawyers, haven’t we all wished that we could pick the trial judge we wanted for each and every case. In the ADR process, you have that luxury available to you and it is important that you take full advantage of it. Just as when a case is being prepared for trial, counsel attempts to ascertain as much information as possible about the judge who will be hearing the case, so too in the ADR process; this information is essential and it is available simply by speaking to other colleagues just as you would discuss the known preferences of a prospective judge.

THE DYNAMICS OF THE PROCESS

In the past, I have described the ADR process as a ‘catharsis’. By that, I have simply meant to express the view that it is very important for the disputants to have an opportunity to tell their story. In many personal injury situations, particularly those involving alleged psychological concerns, this can be extremely important. Once again, this will affect the choice of the mediator. In this type of mediation it is important to have a facilitator who will be able to establish empathy with the plaintiff and assist in eliciting their story in such a way that will allow for all of the issues to come out and be addressed. Some mediators are better at this than others. In cases like this, it is the listening process that is the key to reaching a resolution, while financial issues come secondary. This is another reason why counsel should promote dialogue between the litigants using the ADR process, because it facilitates the ‘catharsis’. A striking example of this would be a situation that has sometimes occurred in medical mal-practice litigation. A simple apology properly phrased by the doctor has been the single most important factor in resolving the case.

The most important aspect of mediation is that the parties themselves control the ebb and flow of what happens. It is the parties themselves that ultimately have control over the resolution of the dispute. It is for this reason that participation by the parties is so important. I am of the view that as part of counsel’s preparation for the mediation, it is good practice to have the plaintiff and/or the insurance representative prepared to say a few words. I have found from past experience that the statements that are made by the parties themselves – the decision-makers – have more impact on the other side than any comments made by counsel. The reality is that everyone in the room knows that the lawyers are paid to make the arguments, but the comments from the civilians’ usually come from the heart.

ADVOCACY STYLES AT MEDIATION

Even though ADR and in particular, the mediation process, are designed to facilitate settlement, counsel who represent clients in the ADR process are still advocates. It is just a different kind of advocacy. It is still persuasion but it is persuasion directed to the litigants themselves. Your advocacy plan, therefore, must be tailored to the audience who will be receiving it.

From an advocacy standpoint, the most important part of the mediation is the opening statements. These statements should last no more than 20 minutes. If you are a defendant, you should attempt to demonstrate empathy towards the plaintiff. Counsel for the plaintiff on the other hand, will be attempting to persuade the insurance representative in a personal injury case as to how serious his clients injuries are and how dramatically his client’s life has been altered. Make sure that in your opening statement you highlight all of the issues that are in dispute and give cogent logical reasons why they should be resolved in your favor.

Personalities can play a key role in the success of mediation.  In a case where credibility issues are significant, as part of your preparation a decision can be made as to whether counsel will produce the iron fist. In certain kinds of disputes, this is extremely appropriate. If the insurer is taking the position that the claim is specious, that message must be delivered. It must be supported by admissible logical evidence and not suspicion. The worst thing a defendant can do at mediation is make unfounded allegations against a plaintiff.

Remember that when considering your selection of the mediator, you have taken into consideration negotiation styles and hopefully select a mediator who suits both your case as well as your own style of negotiating. The ADR process is full of surprises and during the course of the mediation styles may need to adjust in order to deal with the ebb and flow of the process as it occurs. Some of these things cannot be thought out in advance because you cannot anticipate every possibility. Nevertheless, as part of your preparation you should try to anticipate at least some of the possible surprises that may occur.

EFFECTIVE STRATEGIES

Based on my experience in conducting numerous mediations, both as a mediator and counsel, I have come to the conclusion that what takes place in mediation cannot be predicted. One of the things that I learned very early on in doing mediations is that it is very important to encourage your client or representative to speak up whenever he or she has a comment that can benefit the proceedings. In the pre-mediation preparation session, I always stress to the person who is accompanying me on the mediation that these proceedings are entirely ‘without prejudice’ and there is nothing they can do or say to hurt their case.

From a defence point of view, I have learned that a few key words at the right time by the insurer’s representative can be crucial in bringing about the resolution of a case. I believe that two examples are informative in this regard. Firstly, in one case during mediation there were extensive caucuses between the mediator and counsel which excluded the clients. The mediator chose this strategy because there were some very sensitive issues that either one of the parties might have taken personally. The end result was that the parties were left together in the main meeting room and during these long absences of counsel, the representative of the insurance company became quite friendly with the plaintiff. The insurer’s representative established lines of communication with the plaintiff, which was ultimately instrumental in resolving the case.

A second example that is worth mentioning is that sometimes on difficult mediations where the parties are meeting impasse, particularly those involving multiple parties, the mediator will try different combinations of people caucusing together.  A situation arose recently where each of the lawyers for two defendants and the plaintiffs lawyer, came to a resolution of the matter that everyone seemed prepared to live with. Unfortunately, the plaintiff’s counsel could not obtain instructions from his client. At this point, the mediator tried various methods of caucus combinations including; a group session, a private caucus with the plaintiff, plaintiff’s counsel and the plaintiff, a caucus with the mediator, and plaintiff and defence counsel. Ultimately it was a caucus with the plaintiff and the insurer’s representatives that bought about a resolution of the case. The moral of the story is, do not give up at mediation and when different combinations of caucusing are not working, keep trying others.

Sometimes you will encounter a situation where the chemistry between either the parties or their lawyers is very emotionally charged. When this occurs, if at all possible warn the mediator privately in advance of the session. In these kinds of situations, while it is important that the parties listen carefully to opening positions, it may be necessary for the mediator to keep the parties in a caucus while the mediator ‘shuttles’ back and forth gradually bringing the parties together as they reach consensus and finally, when a resolution is achieved. This method will hopefully eliminate any emotional confrontations that could derail the mediation.

Whether or not the trial lawyer needs to attend the mediation depends on the particular case. There is a place for hard-nosed litigators in ADR and in mediation. They will, however, have to wear a different hat. Hard-nosed litigators must learn that mediation is the antithesis of the adversary system. Mediation is about compromise. Mediation is a process by which opponents in a lawsuit explore mutually acceptable and creative solutions to resolve their dispute. In the mediation process, the parties explore each other’s strengths and weaknesses and assess the risks of proceeding towards trial. At mediation, the parties make the decision to solve their own lawsuit as opposed to having a court make that determination for them.

The trial lawyer on the other hand, is programmed to fight to the death. This latter type of individual should not be turned loose in a mediation setting unless accompanied by a capable facilitator who has control of the process. As a result of the mediation process requiring the exploration of the strengths and weaknesses of each case, having the ‘bad cop’ at the mediation table can prove to be an interesting stratagem. I say this simply because I am mindful of the old adage that ‘in order to make peace you must be able to wage war’. If the trial lawyer does too much posturing and the mediator fails to cut it off, there is little likelihood of achieving resolution.

CONCLUSION

As always, the facts of the case and the personalities of the key protagonists will determine how you will tailor the process to each particular situation, keeping in mind that all of the foregoing factors have to be considered. In the end, the desired result is to resolve the dispute, and there are many ADR processes one can take to achieve this goal.

[1] Historical interview of The Honourable Mr. Justice E.L. Haines, Supreme Court of Ontario, Osgoode Society, 1987.

[2] S.O., 1991, c. 17

This entry was posted on Thursday, February 19th, 2015 at 8:57 am and is filed under Longwoods Online.