Are You Ready to Mediate?: Part 1 - Think Mediation from The First Client Meeting
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.
