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. © 2017 All Rights Reserved This compilation of collective works is copyrighted by The Law Society of Upper Canada. The individual documents remain the property of the original authors or their assignees. The Law Society of Upper Canada 130 Queen Street West, Toronto, ON M5H 2N6 Phone: 416-947-3315 or 1-800-668-7380 Ext. 3315 Fax: 416-947-3991 E-mail: [email protected] www.lsuc.on.ca 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 1 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 2 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 1-1 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. 1-2 3 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. 1-3 4 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 1-4 5 (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 1-5 6 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.