WHEN TO
MEDIATE DURING AN ACTION

In most cases there are several opportunities during the course of an action when it may be advisable to mediate.  Certain kinds of cases may be factually and legally quite simple.  In these cases, it may not even be necessary to exchange pleadings.  If there has been open communication to enable the partners to identify the issues, the case may be ripe for mediation at an early stage. 

For those cases that raise several complex factual and/or legal issues, or where the issues are not easily able to be identified, it will be necessary to complete a detailed analysis of the issues before attending a mediation.  If there is a critical legal issue to be resolved, it may not be a good idea to mediate.  Your legal counsel may consider it more effective to have he legal issue decided, firstly, by arbitration, followed by mediation for the larger issues.  To establish at what stage of a dispute it is best to mediate, the following questions could be considered:

• What do you expect to gain before the mediation can take place?

• Do you need to obtain and review all of the other side's documents first?  Will it be sufficient to obtain only the most relevant documents?

• What do you expect to gain that would make examinations for discovery of the other parties necessary, before the mediation takes place?

After pleadings are exchanged, cases can be sent to mandatory mediation.  This practice is followed in Ontario and is being considered in British Columbia.  This reflects out courts' efforts to reduce the cost of legal disputes by encouraging parties to mediate at an early stage and to expedite the conduct of litigation.  Nonetheless, there are cases where it is not appropriate or beneficial to mediate at an early stage.

Often, before proceeding to examinations for discovery, which are expensive to conduct, it is important to consider the possibility of trying to resolve the dispute through mediation.  A limited examination or exchange of documents may be all that is required to identify issues or establish the relevant and necessary information that will be required to conduct a mediation.  

By Alan Schapiro

For example, you may understand the nature of the plaintiff's case, but you may not be entirely clear of the extent of the damages claimed or how to plaintiff intends to prove damages at the trial.  In such an eventuality, production of documents and a brief examination for discovery may be very useful prior to scheduling a mediation.

PREPARING FOR MEDIATION

Don't be dissuaded by the fact that negotiation has broken down.  A mediator's responsibility is to help the parties by encouraging them to consider the weaknesses of their case, to consider the realities facing them and the opposing party, thereby opening the door to possible settlement.  However, often one of the parties is too entrenched in a position and that may be a signal to postpone mediation.  It is possible that the party will change his/her views during the course of litigation.  This will present an opportunity to initiate mediation.

Often other forms of Alternate Dispute Resolution (ADR) are more appropriate to settle a dispute.  Early neutral evaluation, where a neutral person conducts a session with the parties and renders an opinion as to how the dispute would be decided in court, is a form of ADR that is commonly provided by retired judges or very senior and experienced lawyers.  If there is a significant legal issue that will largely resolve the case, it may be advisable to seek an early neutral evaluation, perhaps with a written opinion, rather than mediation.

Sometimes it is useful to combine mediation with arbitration, either by starting with mediation, failing with arbitration will settle the dispute.

You must prepare for mediation in a methodical and thorough manner.  To conduct a successful mediation, you should understand the purpose of mediation and our role at the mediation.  The role of a lawyer is very different in mediation than is litigation.  A lawyer is there to assist the client to gain information and asses options, rather than argue the case as before a court.

The usual process is for parties to exchange mediation briefs before the date of the mediation.  The parties should now their case and be in a position to summarize both the legal and factual issues in the mediation brief.  The brief should be easy for the mediator to read and enable the mediator to obtain a brief "snapshot" of the case.  Include in the brief the following information:

• List all of the issues
• Attach key documents'
• Stamp all of the documents "strictly privileged and confidential -- for mediation purposes only" to ensure that they cannot be used by the other side outside the mediation
• Detail the important issues
• Attach the important cases
• Attach key witness statements marked "strictly privileged and confidential -- for mediation purposes only"

WHO SHOULD BE PRESENT AT THE MEDIATION?

Certainly, those people with authority to settle the dispute must be present.  If this is impossible, arrange for the person with authority to participate by conference call or, better yet, postpone the mediation to a date when all of the key persons are available to attend.  Consider the following:

• Who will be the deal-maker at the mediation?
• Who has the decision-making authority?
• Who are the persons most closely involved in the events?
• Appoint a lead spokesperson
• Consider who should be attending from the other side and insist that the individual with authority to settle the case attend the mediation

Next month, we will look at the role of lawyers, how to conduct a mediation, and how to finalize a settlement.