Stuart Rudner
While my costume at the ELAO Halloween event may have been scary (that’s me on the right), what is even scarier is that many members of our Bar fail to use their advocacy skills at mediation. As a result, they may reach a settlement, but they don’t get the best deal for their client.
I speak and write often on Strategic Mediation. I can do that because I have the benefit of almost 25 years of practice as counsel and several years acting as a mediator. Below are a few tips. I’d be happy to share other articles and slide decks I have prepared on how to mediate effectively.
Get the Mediator on Board Before Mediation with a Strong Brief
I could spend 5000 words on this alone (which is ironic when discussing a brief), but but for this article, I will just remind everyone that the brief is your chance to let the mediator know what the real issues are, what your (real) position is, and what the evidence shows, before you start eating into your 3 or 6 hour hearing.
Don’t just copy and paste from your pleading.
Do submit a modern brief in which you embed documents or excerpts, video and audio. It’s a lot more compelling to watch a video of the plaintiff punching a colleague than to read “The Plaintiff engaged in inappropriate and violent behaviour” and be told that “we’ll gather the evidence if mediation is unsuccessful”.
Use a chart or summary at the beginning to clearly set out the key factors, rather than making your mediator dig through page after page to figure out the employee’s age, position, length of service, and compensation.
Don’t Waste the First Offer
Unfortunately, many negotiations still begin with what I referr to as the “silly season”. That involves one party making an absolutely ridiculous offer to settle, which angers or at least annoys the other side and simply generates an equally ridiculous counteroffer.
Rather than making a ridiculous offer, a strategic party at mediation can deliver a first offer that, while certainly not their bottom line, approaches a realistic assessment of where the case should settle. Doing so will send a very clear signal to the other side that you are there to make a legitimate effort to reach a resolution, and should result in an equally reasonable counteroffer.
I note that when one party starts with a ridiculously high or low first offer, they should not subsequently bemoan the fact that they have moved much farther than the other side and use that to suggest that the other side is not negotiating in good faith. By way of example, if a case should realistically settle between $200,000 and $250,000, it is not particularly compelling if the plaintiff initially offers to settle for $1 million, and then complains about how much they have compromised when we get to the point where the offers are in the $300,000 range.[1]
When I encourage parties to begin with a reasonable offer, I'm often confronted with the fear that if they start too close to their bottom line, then they will be somehow forced to accept less than they should. I don't buy that. The bottom line is that you will all either reach a settlement or you won't; whether you get there after two rounds of offers or twenty does not change anything, as you should either accept the deal that is achievable or decide that it is not in your best interests. Starting with a reasonable position will simply allow us to either reach a settlement, or determine that settlement is not possible, more quickly.
Work with Your Mediator
“Just tell them our next offer is $X”. That is not the way to work strategically with your mediator. Throughout a mediation, I am listening to what is said and reading between the lines. I can develop a good idea of how the case can be settled, and I can work with the parties to get there. That usually requires thinking 2 or 3 steps ahead.
Part of working with your mediator is listening to your mediator. I will offer my thoughts on the case, and since I am usually the first neutral third party to assess your position, part of the benefit is getting that objective assessment.
I will tell counsel and their client when I think a proposed offer is likely to impede settlement rather than facilitate it, and I will also offer my suggestions on how to get to a deal. Of course, I can do my job more effectively if you are open with me about where you (realistically) hope to get to. I don’t expect anyone to tell me their true bottom line (though some do), but if you give me a sense of your settlement range, I can work toward it.
Pith and Substance
People often think that winning at mediation is an oxymoron; it’s not. While it does not require the same preparation as trial, preparation is required if you want to succeed for your client. Mediation is advocacy, and those who do it well will have happy clients.
To find out more about my ADR practice, check availability of book a hearing, click here or contact Janis Buckley at janis@rudnerlaw.ca or 416.864.8504.
[1] As an aside, I would encourage readers to read Never Split the Difference, a book written by a former FBI hostage negotiator. I love his point that if you are negotiating for the safe return of ten hostages, you cannot simply split the difference by agreeing that you'll take five.
