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Many clients are new to the mediation process and/or uncomfortable with the prospect of confrontation with the other side. For these people, attendance at mediation can be intimidating or even frightening.  It need not be.  For well-prepared clients, supported by strong counsel, mediation offers a unique opportunity to address the opposition in a confidential and informal business setting, with ultimate control over the outcome of the dispute resting in their hands. Ensure your clients understand this opportunity, how the mediation process works and what makes the mediation setting different from the courtroom environment.  

In preparing a client for mediation, counsel is faced with two key strategic decisions: whether to participate in a joint session and the level of client participation in the mediated discussions.  

Some counsel wish to forego the joint session, preferring to caucus and mediate through shuttle negotiation.  There may be valid reasons for favouring this approach in a particular case (for example, where there is a history of extreme acrimony between the parties).  However, a joint session can provide many benefits, including offering a
chance to establish a positive negotiation tone at the outset of the mediation, exploring factual discrepancies between the parties, uncovering hidden interests, and discussing the interpretation of key documents.  Not to be overlooked is the prospect of increased participant satisfaction.   From my seat at the mediation table, in cases where the client is comfortable with the joint session format and has an opportunity to address the other side in it,
there is a higher level of client satisfaction at the conclusion of the mediation process.  
 
To what extent you allow your client to speak at the mediation – in a joint session or in caucus – should be carefully discussed and planned in advance.  I recognize there may be times when it would be better for counsel to speak exclusively on the client’s behalf – to protect a client who may be emotionally vulnerable, unfocused or inarticulate.  However, in my experience, clients can be a significant asset at the mediation session, by sharing valuable information, conveying appropriate emotion and enhancing their credibility. Remember that no one knows the client’s story better than the client. And, an articulate and credible client at mediation, particularly in a
joint session, gives the other side a glimpse of how that person will perform as a witness.  A strong performance at
mediation can only enhance the client’s credibility and increase your negotiation leverage at mediation.

Spend the time with your client prior to the mediation session to determine how they can be of assistance – what topics can they speak on, what if any limits of communication need to be imposed, what emotional hot-buttons should be avoided to guard against unproductive escalation, and how can they best articulate their most critical
needs and desired outcomes.  Develop a rescue plan in advance that allows you to intervene when the discussion goes beyond the client’s breadth of knowledge or comfort zone. 

A well-prepared client should be viewed as an asset not as someone to muzzle at mediation.

A conscientious and well-prepared mediator will spend time reading, reviewing and considering all the information you provide prior to the mediation date. The information you share will help to highlight areas of consensus and disagreement between the parties and provide insight into the key areas that need to be explored at the mediation. 
I read everything.  The more I know about the each side’s view of the case, including their interpretation of the facts, issues and the applicable law,  the more effective I can be in asking probing questions aimed at narrowing the gaps between opposing sides and finding potential building blocks for the resolution of each issue.

Depending on your forum, you may be required to prepare and submit a “mediation memorandum,” a “Statement of Issues” or a “mediation brief” in advance of a mediation.  For mandatory mediations conducted pursuant to the Ontario Mandatory Mediation Program, Rule 24.1 of the Rules of Civil Procedure requires the delivery of a Statement of Issues from each side.  The Statement of Issues should include the factual and legal issues in dispute, the party’s position and interests and the documents that the party considers to be of central importance to the dispute.  A mediation memorandum serves essentially the same purpose as a Statement of
Issues.  A mediation brief contains the Statement of Issues or mediation memorandum, as the case may be, as well as
further supporting materials that help to support and enhance the party’s story (for example, relevant case law, technical reports, medical reports, etc.).  The truth is that many counsel use the three terms interchangeably when referring to mediation materials provided in advance of mediation.  For the purposes of this discussion, I will use the broader term “mediation brief.”

An effective mediation brief thoughtfully and persuasively tells the party’s story (with insight into points of perceived strength and weakness), includes a brief review of the law that is in contention for the key issues in dispute, and highlights desired outcomes for resolution.  It should reference and include all relevant documents; it should be more than just a restatement of a pleading.

Generally, mediators require the delivery of a mediation brief at least one week before a scheduled mediation date.  For mandatory mediations conducted under Rule 24.1, each party is required to deliver a Statement of Issues seven days before the mediation session.   

I recognize that lawyers work under tight deadlines and balance large case loads, making the timely delivery of mediation materials challenging. However, increasingly, I am noticing a trend towards the delivery of briefs one or two days before the mediation.  I won’t speculate on the reason for the “seven day rule”, but I do appreciate receiving a party’s brief well in advance. It gives me an opportunity to carefully review and reflect, and to seek clarification or further information where needed.

A mediation session has the best chance for success when the parties and the mediator are well-prepared
coming into the session.  The timely delivery of a thoughtfully written mediation brief enhances everyone’s
preparation and helps to set the right tone for a focused and productive discussion.

To make the most of a mediation opportunity, share information that helps the opposing side understand the strengths of your case.  

Unfortunately, too often the sharing of key information – financial
statements, medical documentation, mitigation efforts in wrongful dismissal disputes, expert reports – is incomplete,  hasn’t been provided to the other side at all or is provided so late that the opposing side doesn’t have adequate time to review and respond to it before
the mediation date.  Not only do you miss the opportunity to preview for the opposing side the strengths of your case, but you may also create a negative inference that you don't have document back-up to support your theory of the case, indirectly undermining your negotiating power.

I recognize that there may be rational financial reasons for not obtaining and exchanging documents that help your case in advance of an early mediation date.  For example, expert reports are expensive to obtain and counsel will often wait to see whether the matter settles at an early mediation before incurring the cost of retaining an expert and having a report prepared.  
 
However, the following mediation scenarios demonstrate the value of early information gathering and exchange.  
 
In a commercial mediation, liability for breach of contract is not an issue; however, the president of the defendant company asserts at mediation that the company is in deep financial difficulty with limited means to pay even a modest portion of the plaintiff’s claim.  The defendant has come to mediation with limited and incomplete information about the company’s financial health.  The plaintiff is not prepared to settle the case at a deep discount without full financial disclosure.  At the conclusion of the mediation session, defendant counsel agrees to disclose specific financial information relating to the defendant’s company.  The information is obtained and exchanged and we reconvene for a follow-up session over the phone a month later.  The parties reach a settlement in less than an hour.  

I recently conducted two wrongful dismissal mediations.  The claims were brought by middle managers who had been terminated by the same employer.  The employees in each case were represented by different counsel.  The cases were relatively straightforward – the employees had similar jobs and seniority – and the issues were the same: what was the appropriate notice period and had the employee taken reasonable steps to mitigate his damages by seeking alternative employment.  In the first case, the employee prepared a detailed chart outlining his mitigation efforts, including the following: name of organization applied to (and electronic link to a job ad, where applicable), name and contact information for prospective employer, date of letter or email sent, follow-up efforts, and results of the application.  He also provided a copy of his resume and an abstract of his LinkedIn profile.  In the second case, the employee had prepared a one-page document listing half a dozen companies that he said he had applied to for work.  Both cases settled, but the outcomes were substantially different. In the first case, the employee obtained
a settlement at the high end of the range for an employee with his background while in the second case the employee settled for a notice period at the low end of the same range.

Early information gathering and exchange is hard work, but it is critical to maximizing negotiation power at the mediation table.

Mediation has become a fixture in most justice systems in the democratic world. In Ontario, we have mandatory mediation in Toronto, Ottawa and Windsor.  Rule 24.1 of the Rules of Civil Procedure governs the mandatory mediation process and encourages early mediation (within 180 days of the filing of the first defence unless the court orders otherwise). In other jurisdictions, where mandatory mediation does not exist, litigants are increasingly seeking out mediation to resolve civil disputes voluntarily.  

The fact is, most civil disputes will either resolve at mediation or through some form of direct negotiation without the need for a trial.  For most litigants, mediation will be their one and only “day in court.”  It therefore makes sense to invest the time up front with the client to ensure they understand what mediation offers, how the process works and where it fits into the litigation process.   Part of the conversation should also focus on the steps that need to be followed to be prepared for and make the best use of mediation.  

When I first got into the Alternative Dispute Resolution (ADR) field in the 1990's I was also practicing law.  In my role as a lawyer, I drew considerably from my ADR training.  I would sit down with each new client and, with the aid of a flip chart, conduct a needs and costs assessment. Together, we'd map out the client’s interests and the perception of the other side's interests, the evidence (particularly documentary) weighing in support of and against my client’s case, the possible options for resolution outside litigation, and the costs (financial and emotional) of pursuing the various options (including trial).   Through that discussion we’d begin to zero in on preferred settlement options and we’d speculate on how the other side might respond to them. Often these discussions served as the ultimate building blocks for resolution later.  This approach seemed organic to me and it was exciting to see how clients responded. But, I discovered that for many new clients it was a real revelation that a lawyer would sit down with them and have a frank conversation about what was important to them, what it might take to achieve their objectives and the possible costs involved in pursuing different options.  

Early pro-active preparation for mediation is hard work.  It requires a legal adviser to examine more than the client’s story, the law and the available evidence.  It demands attention to the client’s interests and budget and an open mind to possible options for resolution that respond to the client’s articulated needs.

Use early client meetings  to uncover interests, to address budget considerations and to map out a strategy for managing the file with the client. Keep the client engaged and involved and the legal costs down by assigning work to the client (e.g. locating key pieces of evidence that bolster the case and enhance negotiation power) and schedule regular follow-up meetings to ensure the process is moving forward.  

Watch for Part 2: Timely Information Exchange, coming next week.

Much of my work as a mediator involves mediating civil disputes in the midst of litigation.  In my view, preparation is the most critical ingredient for success in mediating these disputes – more than skill, intellect or experience. It’s also the one ingredient we control.  

Over the next five weeks I will present a series on key elements to consider when preparing for mediation.  While my focus is on the mediation of civil disputes, the elements discussed will have broad application to mediation generally.  Here's a sneak peek at the topics I will cover:

• Part 1: Think Mediation from the First Client Meeting
• Part 2: Timely Information Exchange
• Part 3: Use the Mediation Brief to Preview Your Story
• Part 4: Preparing the Client for the Mediation Session
• Part 5: Bring the Right Person to the Table

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