A WORKSHOP FOR Litigators Who Represent Clients in Mediation
chair
Frank Gomberg Gomberg Mediation Solutions Inc.
September 18, 2017
*CLE17-0090401-A-PUB* DISCLAIMER: This work appears as part of The Law Society of Upper Canada’s initiatives in Continuing Professional Development (CPD). It provides information and various opinions to help legal professionals maintain and enhance their competence. It does not, however, represent or embody any official position of, or statement by, the Society, except where specifically indicated; nor does it attempt to set forth definitive practice standards or to provide legal advice. Precedents and other material contained herein should be used prudently, as nothing in the work relieves readers of their responsibility to assess the material in light of their own professional experience. No warranty is made with regards to this work. The Society can accept no responsibility for any errors or omissions, and expressly disclaims any such responsibility.
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Library and Archives Canada Cataloguing in Publication
A Workshop for Litigators Who Represent Clients in Mediation
ISBN 978-1-77345-233-3 (Hardcopy) ISBN 978-1-77345-234-0 (PDF)
A WORKSHOP FOR
Litigators Who Represent
Clients in Mediation
Chair: Frank Gomberg, Gomberg Mediation Solutions Inc.
Panelists: Jonathan Fidler, Malach Fidler Sugar + Luxenberg LLP
Joy Noonan, Aptus Conflict Solutions Inc.
Paul Torrie, Global Resolutions Inc.
September 18, 2017 9:00 a.m. to 12:00 p.m. Total CPD Hours = 2 h 30 m Substantive + 30 m Professionalism
The Law Society of Upper Canada Donald Lamont Learning Centre 130 Queen St. W. Toronto, ON
SKU CLE17-0090401
Agenda
9:00 a.m. – 9:10 a.m. Welcome and Opening Remarks POLLING
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9:10 a.m. – 9:50 a.m. Switching Gears – The Difference between Advocacy in Court and Mediation
Choosing a negotiation style – Collaborative vs. Aggressive Preparing your client / Managing expectations Using empathy and respecting self-determination Building trust: Moving toward an amicable settlement Making an offer / Considering the implications
9:50 a.m. – 10:25 a.m. Apology Debate and Group Discussion – A Cost-Benefit Analysis
10:25 a.m. – 10:30 a.m. Review of Fact Pattern
10:30 a.m. – 10:45 a.m. Coffee and Networking Break
10:45 a.m. – 11:00 a.m. Prepare a Negotiation Strategy and Opening Statement
11:00 a.m. – 11:25 a.m. Large Group Take-Up and Discussion
11:25 a.m. – 11:55 a.m. Audience Design of a Fact Pattern of Ethical Issues in Mediation with Large Group Take-Up
11:55 a.m. – 12:00 p.m. Question and Answer Session
12:00 p.m. Program Ends
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A WORKSHOP FOR
Litigators Who Represent
Clients in Mediation
September 18, 2017
SKU CLE17-0090401
Table of Contents
TAB 1 CASE STUDY Shutt v. Carabiner et al ...... 1 - 1 to 1 - 15
CHART from Apology for the Unexpected Death of a Child in a Healthcare Facility ...... 1 - 16
Helpful Links ...... 1 - 17 to 1 - 18
Frank Gomberg, Gomberg Mediation Solutions Inc.
TAB 2 Be Still and Listen ...... 2 - 1 to 2 - 3 Helpful Links ...... 2 - 4
Joy Noonan, Aptus Conflict Solutions Inc.
TAB 1
A WORKSHOP FOR Litigators Who Represent Clients in Mediation
CASE STUDY - Shutt v. Carabiner et al CHART - from Apology for the Unexpected Death of a Child Helpful Links
Frank Gomberg Gomberg Mediation Solutions Inc.
September 18, 2017
CASE STUDY
Shutt v. Piton Carabiner et al
This Case Study was prepared by Frank K. Gomberg, B.A., J.D., LL.M. and by Ronald M. Laxer, M.D., F.R.C.P.C. © 2013
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Court File No. 09-CV-123456-0000
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
STEPHANIE SHUTT, GRETA SHUTT and ARTHUR SHUTT
Plaintiffs - and -
PITON CARABINER LTD., SUDBURY REGION CONSERVATION AUTHORITY and ONTARIO SCOUTING ASSOCIATION
Defendants
I THE PARTIES
A) The Plaintiffs
1. STEPHANIE SHUTT
Dr. Stephanie Shutt was born on October 8, 1978. She is now 34 years old.
Stephanie lives in Toronto. She was a highly trained physician. Because of the catastrophic, life-threatening injuries that she suffered on August 12, 2007, she will never again practice medicine.
2. GRETA SHUTT AND ARTHUR SHUTT
Greta Shutt (“Greta”) and Arthur Shutt (“Arthur”) are Stephanie’s mother and father.
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Greta and Arthur bring this action pursuant to the provisions of the Family Law Act, R.S.O. 1990 c. F.3 with regard to the catastrophic injuries suffered by their daughter, Stephanie.
B) The Defendants
1. PITON CARABINER LTD.
Piton Carabiner Ltd. (“Piton”) is a Canadian corporation. Its sole shareholder is Guy Talbot. Piton carries on business in the City of Sudbury and elsewhere in the Province of Ontario.
Piton operates outdoor rock-climbing and team-building programs. It also teaches rock- climbing to inexperienced rock-climbers and to those who have never rock-climbed before. In addition, Piton has an indoor rock-climbing facility in a leased warehouse in Sudbury.
2. SUDBURY REGION CONSERVATION AUTHORITY o/a CONSERVATION SUDBURY
Sudbury Region Conservation Authority (“Conservation Sudbury”) is an agency established under the Conservation Authorities Act, R.S.O. 1990, c. C.27.
At all material times, Sudbury was the supervising authority with responsibility for the Beavertooth Conservation Area (“Beavertooth”) located near the City of Sudbury.
3. THE ONTARIO SCOUTING ASSOCIATION
The Ontario Scouting Association (“Ontario Scouting”) is a corporation incorporated pursuant to Part II of the Canada Business Corporations Act, chapter C-44.
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II JURY OR NON-JURY This is a Jury action.
III INSURANCE LIMITS
Piton has liability limits of $3,000,000.00. Conservation Sudbury has liability limits of $5,000,000.00. Ontario Scouting has liability limits of $10,000,000.00.
IV THE INCIDENT
On August 11, 2007, Stephanie, her fiancée Douglas Tremblay and two acquaintances (“Stephanie and Friends”) travelled from Toronto to Sudbury. The next day, August 12, 2007, they drove to Beavertooth within Conservation Sudbury to participate in an introductory rock-climbing course (the “Course”) taught by Guy Talbot of Piton.
Stephanie and Friends arrived at Beavertooth and met two other Course participants (collectively comprising the six person “Group”) and their designated instructor Guy Talbot.
Talbot asked each member of the Group to sign two waivers, one for Conservation Sudbury and the other for Piton. Talbot then gave each member of the Group a helmet, a rock- climbing harness and a pair of rock-climbing shoes.
Stephanie’s helmet did not properly fit her head. The helmet kept sliding forward toward her face. While sitting at the base of the rock face, Stephanie removed her helmet in order to tie her shoelaces.
Suddenly, a large rock, the size of a 5 pin bowling ball plummeted from the top of the cliff
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(which was at least 60 feet up) and smashed Stephanie on the head, traumatically removing a large chunk of her skull.
Stephanie literally almost died at the scene. She was removed by an Ornge helicopter ambulance and transported to Sudbury Health Sciences Centre.
The rock that smashed into Stephanie was negligently kicked by Sidney Beliveau, a 13 year old member of Ontario Scouting. None of the defendants ever retrieved the rock that smashed into Stephanie’s head. An exemplar will be available at trial.
It is of extreme importance to note that Stephanie was about to ascend one of the three (3) climbing lines that had been set up by Piton’s Guy Talbot. Talbot had erected these lines interspersed with three (3) other lines that had been previously installed for rapelling by young members of Ontario Scouting. Ultimately, each of the six (6) lines was approximately 15 - 20 feet from the next line. The configuration of the lines and a brief description of their “provenance” is set out at Appendix 1 to this Case Study.
The thrust of the plaintiffs’ case is that it was negligence to have members of Ontario Scouting rapelling down the cliff face in the same area where Piton’s neophyte rock climbers were going to ascend their lines. By having “descenders” and “ascenders” in the same area, Piton, Conservation Sudbury and Ontario Scouting exposed Stephanie to the very serious risk which actually materialized - she as an ascender was hit by a rock kicked by a descender - Beliveau - as he approached the rope which he was about to descend. In addition, Stephanie claims that Conservation Sudbury was negligent by permitting overcrowding of the rock-face and by not foreseeing that the installation of 6 lines in very close proximity to each other exposed climbers to significant risk of injury.
A model of the rock face and of the 6 ropes set up by Ontario Scouting and by Piton in very close proximity to each other will be introduced at trial.
V LIABILITY
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Waivers
Stephanie had executed two waivers. The defence argues that Stephanie ought to have known about the significance of the waivers and is bound by them. The argument against enforcing the waivers is:
Permitting Stephanie to sit next to the rock face with or without a helmet was so grossly negligent that the waivers will be legally unenforceable. Piton’s decision to set up its climbing lines closely adjacent to Ontario Scouting’s rapelling lines, bespeaks negligence. Piton and Conservation Sudbury placed Stephanie squarely within the ambit of risk. Ontario Scouting turned that risk into reality.
It is noteworthy that Stephanie had not executed a waiver in favour of Ontario Scouting. Both waivers that Stephanie had executed (in favour of Piton and Conservation Sudbury) failed to include a term that Stephanie’s claims against anyone aside from those released by the waivers (Piton and Conservation Sudbury) were to be treated as several and not joint and several claims.
In addition Conservation Sudbury, when it issued a permit to Piton to carry out its activities at Beavertooth, included a Hold Harmless Agreement in that permit. No Hold Harmless Agreement was ever executed by Stephanie in favour of anyone.
VI DAMAGES
(A) OVERVIEW
THE CONSTITUENT COMPONENTS OF THE DAMAGES IN THIS CASE ARE AS FOLLOWS: i) Stephanie’s non-pecuniary general damages to compensate her for the catastrophic injuries (physical and psychological) that she sustained as a result of the defendants’ negligence.
1-6 7 ii) Pecuniary losses (past and future) suffered and/or to be suffered by Stephanie arising out of the catastrophic injuries she sustained. iii) Greta’s damages pursuant to the Family Law Act, to compensate her for the loss of her daughter’s guidance, care and companionship and to compensate her for the services rendered to Stephanie. iv) Arthur’s damages pursuant to the Family Law Act, to compensate him for the loss of his daughter’s guidance, care and companionship and to compensate him for the services rendered to Stephanie.
(B) BREAKDOWN OF THE DAMAGES COMPONENTS
i) Injuries
Stephanie suffered life threatening, devastating, overwhelming injuries and lasting, permanent physical and emotional injuries including:
a. A fractured skull;
b. Significant and debilitating Traumatic Brain Injury;
c. A fractured spine at C1-2 and herniated discs at L4-5, T11-12, C5-6 and C6-7;
d. Permanent loss of brain tissue;
e. Persistent left-leg weakness and mild weakness of her right leg;
f. Problems with coordination involving her left side and, in particular, her left leg;
g. Numbness on the left side of her torso and her left leg and a tingling sensation in her hands and feet;
h. Ongoing impairment of proprioception;
i. Difficulties with mobility due to gait disorder arising from spasticity of both of her legs and spasticity in her left arm;
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j. Ongoing seizures and panic attacks;
k. Debilitating headaches;
l. Blurred vision and occasional double and triple vision;
m. Loss of sense of smell (anosmia);
n. Loss of sense of taste (ageusia);
o. Inability to concentrate;
p. Memory problems;
q. Difficulty with multi-tasking;
r. Fatigue;
s. Emotional instability and regular episodes of irritability;
t. Inappropriate emotional responses;
u. major depression;
v. suicidal ideation;
w. Difficulty sleeping due to spastic limb movements;
x. Obstructive sleep apnea;
y. Incontinence;
z. Sexual dysfunction;
aa. Scarring and significant deformity of the scalp and skull.
It is 5 ½ years since the accident and Stephanie still hasn’t recovered from her injuries. Sadly, she never will recover from the sequelae of this incident.
Prior to the tragedy, Stephanie was extremely active. One of her friends aptly described her as “Dr. Wonder Woman”. The following are just some of the many activities that Stephanie participated in prior to her injury:
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-- downhill skiing; -- cross-country running; -- hockey; -- tennis; -- travelling to such places as Europe, Asia, Africa and the Far East.
Stephanie was removed from the accident scene by helicopter ambulance and flown to Sudbury Health Sciences Centre. The Ornge air ambulance report notes at page 2:
…pt. was unconscious immediately post incident and began to seize. Seizure lasted ~ 12 min & was witnessed by EMS personnel.
Stephanie remained at Sudbury Health Sciences Centre from August 12 – September 19, 2007 (approximately 5 weeks).
Stephanie underwent the following significant surgical procedures at Sudbury Health Sciences Centre:
1. August 12, 2007 -- right frontotemporoparietal decompressive craniectomy; elevation of depressed skull fracture, debridement of wound; duraplasty; subdural catheter for ICP monitoring; evacuation of epidural hematoma.
2. January 20, 2008 -- replacement of bone flap; cranioplasty with titanium mesh and methylmethacrylate cement. Stephanie was admitted for this procedure on January 20, 2008 and discharged on January 28, 2008.
After her initial 5-week stay at the Sudbury Health Sciences Centre (August 12, 2007 – September 19, 2007), Stephanie was transferred to Hillcrest Rehabilitation Hospital.
Stephanie was at Hillcrest Rehabilitation Hospital from September 19, 2007 to March 31,
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2008 (approximately 6 months). When Stephanie left Hillcrest, she was walking with the aid of canes. To this day, Stephanie cannot walk without the aid of canes. She will never walk independently again.
Stephanie has received extensive out-patient rehabilitation treatments.
Stephanie remains on the following medications:
Carbamazepine (an anti-seizure medication); Clonazepam (an anti-seizure and anti-anxiety medication); Zanaflex (for spasticity); Tylenol 3 (for pain); Topamax (to wean Stephanie off the Tylenol 3’s); Ativan (an anti-anxiety medication); Imovane (for sleeping); Botox injections (to treat spasticity); Detrol (an incontinence medication, at nighttime).
i) Income Loss
Stephanie went to elementary school in Toronto. She was an exceptionally gifted student. She was accepted for high school at Havergal College, Bishop Strachan School, Branksome Hall and St. Clements School. She opted to attend Havergal College. At Havergal she became President of the Student’s Council and was captain of the ski team. She played goalie for Havergal’s hockey team and also played tennis and ran cross-country. She really was a “whirling dervish” and was voted most likely to succeed by her classmates in her grade 12 year.
Stephanie was accepted at all 8 universities that she applied to. These included McGill, University of Toronto (U of T), University of Western Ontario, Queen’s and McMaster. She chose McMaster, where she enrolled in the combined Arts-Sciences Program. She
1-10 11 completed her B.Sc. degree with a straight A+ average in June, 2000. Upon graduation, she was the only student awarded the very prestigious Governor General’s award for academic and extra-curricular excellence.
Stephanie applied to 4 medical schools; McGill, U of T, Queen’s and University of Western Ontario. She was accepted at each. She chose to attend U of T.
Stephanie was a dedicated and hard-working medical student. Notwithstanding her obvious brilliance, she was down to earth, approachable, helpful to fellow students and fun to be around. She was able to mix some pleasure into her busy academic schedule. She continued to ski, play tennis and run, though not as much as she had in high school or as an undergraduate.
During the summers after her first 3 years of medical school, she obtained much competed for work in laboratories at Sunnybrook (summer 2001), University Health Network (summer 2002) and The Hospital for Sick Children (summer 2003). Her laboratory work was of such high quality that her various supervisors urged her to go into research after obtaining her M.D. However, because clinical medicine was her passion, she decided to enter the Pediatric Residency Training Program at the U of T (2004). The competition to be accepted into the Pediatric Residency Program was fierce (120 applicants for 16 positions). Stephanie’s Pediatric Residency Program began in July of 2004. This was to be a 4 year program.
Stephanie completed the first 3 years of the Pediatric Residency Program (2004 – 2008) and was about to begin her fourth year when her rock-climbing accident happened. In March 2007, shortly before the August 12, 2007 accident, Stephanie was chosen by her supervisors to be Chief Pediatric Resident for the upcoming year. In this capacity, she was to represent her peer group of 60 Residents at local, provincial and national levels. She had also applied and was accepted to do a Fellowship program in Pediatric Hematology- Oncology and was going to write her Canadian Fellowship exams (F.R.C.P.) in Pediatrics at the end of her fourth year of training (2008). Stephanie had further ideas for her post-
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Pediatric Hematology-Oncology Training. She was interested in Pediatric Palliative Care and felt certain that she would be accepted at one of the world’s top programs in London, England. She was also planning to obtain a Master’s Degree in Bioethics after writing her second set of F.R.C.P. exams, this time in Pediatric Hematology-Oncology.
All of this came to an end on August 12, 2007, just before Stephanie was to take up her role as Chief Pediatric Resident.
Given her injuries, it is undisputed that Stephanie will never work again. Her career was derailed just when she was about to see the fruits of all of her efforts.
As a fourth year Chief Pediatric Resident, Stephanie would have earned $70,000.00 inclusive of benefits. She would then have written her F.R.C.P. exams in Pediatrics (2008); trained for two years in Pediatric Hematology-Oncology (2010); gone to England for a year to study Pediatric Palliative Care (2011); and then passed her F.R.C.P. exams in Pediatric Hematology-Oncology (2011). She would also have obtained her Master’s degree in Bioethics (2012). Her anticipated career path and expected earnings were projected to be as follows:
2008 training ($70,000.00) 2009 training ($70,000.00) 2010 training ($70,000.00) 2011 training ($75,000.00) 2012 part-time staff position at Pediatric Hospital ($75,000.00) grant for Bioethics Master’s Degree ($60,000.00) “moonlighting” Emergency Room work ($50,000.00) TOTAL - $185,000.00 $185,000.00
2013 staff position $250,000.00 2014 staff position $262,000.00 2015 staff position $262,000.00 2016 staff position $262,000.00 2017 staff position $272,000.00 2018 staff position $280,000.00
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These anticipated earnings are based on the salaries paid to pediatric subspecialists at Pediatric Tertiary Care hospitals in Ontario. In fact, the department she expected to work in has a salary structure whereby an annual bonus is given based on meeting pre-defined goals and objectives. Most faculty members’ performances are determined to be “on track” and most receive an annual bonus of $12,000.00. Those who have an exceptional year can receive a bonus of $20,000.00. The bonus should be added to Stephanie’s base salary to determine her annual compensation. Furthermore, there is a full review every 3 years. Most faculty members move up one rung on the salary ladder, generally equal to $10,000.00; occasionally a faculty member may advance 2 rungs in one triennial cycle for an increase of $20,000.00.
It is likely that after 4 or 5 years Stephanie would have been recruited by other pediatric hospitals with a starting salary of $300,000.00.
(iii) Family Law Act Claims
GRETA and ARTHUR SHUTT
Greta and Arthur are Stephanie’s mother and father. It is important to appreciate the closeness of Stephanie’s relationships with her parents. Just one example of this is the 6 weeks Stephanie spent with her parents in the summer of 2004 after her graduation from Medical School. Stephanie was about to begin her residency and wanted to spend quality time with her parents before beginning the frenetic activity of her training. She spent a full 6 weeks at her parents’ cottage on Fraser Lake in the St. Laurent region of Ontario.
As a result of the damages and injuries suffered by Stephanie, her parents Greta and Arthur have been deprived of the benefit of support, care, service, comfort, guidance and companionship normally provided by Stephanie.
Greta and Arthur claim damages for the loss of Stephanie’s past and future support, care,
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service, comfort, guidance and companionship pursuant to the provisions of the Family Law Act R.S.O. 1990, c.F-3 as amended.
Greta and Arthur have provided nursing, housekeeping and other services to Stephanie and in consequence, are entitled to compensation for the value of services performed and the income lost.
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Appendix 1
The climbing/descending lines and their “history” is as follows:
│ │ │ │ │ │ │ │ │ │ │ │ │ │ │ │ │ │ │ │ │ │ │ │ light blue line blue line owned red line owned black line yellow line green line owned by by Piton and by Ontario owned by Piton owned by owned by Piton Ontario installed August Scouting and and installed Ontario and installed Scouting and 12, 2007 installed August August 12, 2007 Scouting and August 12, 2007 installed August 11, 2007 – the installed August 11, 2007 – the day before 11, 2007 – the day before Stephanie’s’ day before Stephanie’s injuries Stephanie’s injuries injuries
1-15 TAVUCHIS LAZARE KADOR BENOIT (GOFFMAN) SMITH
1. Offers of reparation 1. Acknowledge the 1. Recognition 1. Expression of regret 1. Corroborated offence a. What am I apologizing for? factual blame 2. Self-castigation 2. Acknowledgement a. correctly identifying b. What was the impact of my behaviour on the victim? of expected 2. Acceptance of 3. Shame the party or parties c. What social norm or value did I violate? behaviour and blame responsible for d. Am I apologizing to the right person? 4. Embarrassment sympathy for the the grievance, as e. Do I have cause to apologize? 3. Possession of reproach 5. Promises to reform well as the party or f. Do I have standing to apologize? appropriate parties to whom the g. Should apologies include explanations? 3. Repudiation of the standing behaviour and the apology is owed 4. Identification of “self” committing it b. acknowledging 2. Responsibility each harm the offending a. Do not be defensive 4. Promise to behave 5. Identification behaviours in b. Do not evade or blame the victim correctly in the of the moral adequate detail c. Focus on victim’s needs not offender’s redemption future c. recognizing the d. Offender must look into his heart and reckon what he finds principles impact these there 5. Atonement and underlying each behaviours had on e. Offender values relationship and wants to rebuild it on terms compensation harm the victim(s) agreeable to the victim 6. Shared d. confirming that f. Offender rejects self-excuse and accepts undiluted commitment to the grievance was responsibility moral principles a violation of the inderlying each social or moral 3. Remorse harm contract between a. Signals offender’s contrition parties b. She wrongly hurt someone and if she could she would undo 7. Recognition of what she did victim as moral 2. Explanation c. Offender feels guilt, distress or shame for the action and will interlocutor not repeat it 8. Categorical 3. Attitudes and d. Contrast between remorse and regret. regret behaviours including remorse, shame, 4. Restitution 9. Performance of humility and a. Attempt to practically restore relationship to what it was the apology sincerity before offender broke it. 10. Reform and b. Offender must concretely express contrition redress 4. Reparations c. Offender can’t talk his way out of a situation he acted his way 11. Intentions for into apologizing d. Victim must: • be made whole insofar as that is possible 12. Emotions • see offender make a sacrifice • see offender commit to relationship
5. Repetition a. Assures the victim that the offender will not repeat the offence b. Requires a genuine change in the offender for if he won’t change then the apology is valueless
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Apology for the Unexpected Death of a Child in a Healthcare Facility: A Prescription for Improvement by Frank Gomberg 1-16 Reference Material
Apology for the Unexpected Death of a Child in a Health Care Facility http://www.gombergmediation.com/site/gomberg_mediation_solutions/assets/pdf/apologyfo rtheunexpecteddeath_frankgomberg.pdf
The Goliath Factor and Its Application to Mediation http://www.gombergmediation.com/site/gomberg_mediation_solutions/assets/pdf/07_the_g oliath_factor.pdf
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TAB 2
A WORKSHOP FOR Litigators Who Represent Clients in Mediation
Be Still and Listen Helpful Links
Joy Noonan Aptus Conflict Solutions Inc.
September 18, 2017
Be Still and Listen ….
A reflection on what makes counsel most effective in mediation
Joy Noonan LL.B, LL.M, Chartered Mediator
You feel the pressure to perform, to show the client your value. This is entirely understandable … and also a far too simplistic view of what makes a good lawyer, particularly in cases you will mediate. Civil lawyers today rarely see full trials, so our training as righteous warriors is not always given the airtime we figure it out to have coming out of law school. But resist the urge my friends; resist giving that side of your training too much oxygen in the context of trying to resolve a case at mediation.
Clients arrive wounded - whether those wounds are in fact real or perceived is not immediately relevant – they are wounded and they come to you for help. Be still and listen. They are coming because they want your wisdom, your clear head and your focus. Below are a few observations from someone who plays the role of mediator most days:
1] Get all of the documents that relate to the events at issue before mediation. Do not let your client "edit", and explain why it is so important to your client. You can address documents that may seem unhelpful far better proactively than looking like a fool when the other side shares them with you at an inopportune moment. Even if Affidavits of Documents have not been exchanged before mediation, get your client's documents organized and ready. Pull out and share the three [3] or four [4] key documents, and be absolutely ready to address any problem documents you might have. You will be far far stronger in mediation ( and beyond mediation if needed) with a sound theory of your case.
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2] If your pleadings are filed, your mediation brief can focus on key facts and what you hope to achieve in mediation. If those terms or that "zone" of potential agreement is narrow, let your mediator know and he/she will work to get the other side into it and/or you out of it! NOTE: Filing briefs with your mediator in the 500 to 600 page range for 3-hour mediations is not usually helpful.
3] Don't come to mediation to "win" your client's case: You won't. I have yet to see any counsel in any mediation say to her/his friend opposite "you know what? I think you are right!" Be realistic. They too are present in an advocacy role, so step back and really think about what your client needs you to achieve in this process and what approach is most likely to get you there. If your client pressures you to give the other side a piece of your mind in opening statements, make sure your client also knows how that approach is likely to impact on the process – that this is likely not the forum, not the time for the strenuous legal arguments. (This is not to say you cannot and should not open a mediation outlining the key legal issues for your client – but watch your tone and, again, be strategic.)
4] What does your client need to achieve? This relationship between you and your client is paramount. She/he will trust you. Typically there will be what they say they "want", what they feel they "deserve", what they believe they are "owed"… Your job is to help them manage those expectations, and to zoom in on what they need to achieve in order to resolve the conflict in mediation. Adjust your negotiating style accordingly so that you can truly help your clients. Remember, this is about them – not you.
5] In my experience, counsel who are jerks do not get the best deals. No one is prepared to ‘stretch’ for them, to ‘make one more phone call’ for them. Conversely, I have watched collegial, likable counsel get very strong settlements for their clients on relatively weak facts. The power of civility should never be underestimated.
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6] Even if it looks to you as though settlement is not conceivable or possible, your mediator will have a fresh perspective and a lot of energy picking apart the layers of the conflict. Relax – and be open to finding a path.
7] You will come into the mediation with a plan of action with your client. Be ready to revisit that plan liberally as the negotiation unfolds. What your client needs to resolve the matter will often flex/evolve during the negotiation, particularly near the end. Pay close attention.
8] If you like and trust your mediator, lean on her/him for feedback or reaction to claims being made and facts in support [or lack thereof]. Brainstorm on offers, and don’t be shy to ask for her/his read of the likely impact of your offer/counter in the other room. Private "caucus" in the hallways is also a very normal part of the mediation process. We are there to help you get a deal, so use us!
9] Keep watching your client carefully, and listen attentively. If it's not the right time for a settlement – i.e. if you observe your client feeling too exposed, too uncertain – do not hesitate again to talk with the mediator, maybe even ask for a caucus with the mediator and opposing counsel. There is no need to lose a potential settlement just because your client might not be ready today. Sometimes, we all need to slow these processes down. While finality is always the aim - mediations can be adjourned where a break is appropriate.
Prepared for the Law Society of Upper Canada, Workshop for Litigators Who Represent Clients in Mediation September 18, 2017
2-3 Helpful Link
Harvard Business Review, Mindfulness Assessment https://hbr.org/2017/03/assessment-how-mindful-are-you
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