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| Jennifer Egsgard |
With the right preparation and advocacy, mediation can be deeply satisfying for your clients. It can encourage reflective and realistic risk assessments to inform negotiations, create added value through creative settlement terms, and provide an opportunity to deepen the professional lawyer-client relationship.
How can you as counsel get the most value from mediation for your clients? Here are 11 essential tips.
1. Take a hard look at what might happen at trial
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Review this trial risk analysis frankly with your client well before the mediation so they are informed and have realistic expectations. With the client, consider a reasonable range of settlement numbers in light of those risks. In a few cases, I have seen this conversation occur for the first time during the mediation — and sensed a subsequent chill in the lawyer-client relationship.
2. Speak with your client about their goals and litigation impact
To maximize mediation’s value, you should also speak more broadly with your clients about the impacts of litigation and their goals. Quite apart from the prospects of success at trial, your clients may be weighing litigation consequences such as:
Reputational impact: The existence of litigation, or its outcome, may affect their reputation in the marketplace, with regulators, as an employer, or in connection with a planned expansion or sale.
Business distraction: Discovery and other aspects of the litigation may represent a significant drain on leadership time, staff focus and operational momentum.
Personal stress: While some people thrive on the thrill of a fight, for others prolonged uncertainty may be excruciating.
Broader objectives: Some clients may, in addition to a damage award, be interested in achieving what they consider justice, a particular policy change or preventing future harm.
Understanding client objectives more broadly can help prepare you to negotiate a more satisfying settlement at mediation. You and your clients may decide to ascribe value to certain interests, which may shift the amount for which they are willing to settle and/or uncover potential creative settlement terms.
3. Explore with your client whether creative settlement terms might add value
While settlements normally involve the payment of money, consider with your client whether more creative settlement terms might add value to either party. For instance:
- In a case involving harm, a defendant might agree to adopt new policy aimed at preventing similar future injury; better train employees or investigate claims; cover cost of plaintiff’s counselling; provide an apology
- In an employment case, an employer may provide a letter of reference; a particular (legal) tax treatment of settlement funds; outplacement services; a non-disparagement clause; public acknowledgement of contribution; agreement about ownership of IP rights
- New business agreement between parties
- Joint press release
- Provision by one side of anything of value to the other that is unrelated to the substance of the case, such as (depending on the defendant’s business or assets): airline tickets, charitable contribution or restaurant vouchers.
4. Develop a negotiation strategy with your client
With your client, determine what you think a reasonable settlement range at the mediation might be, with or without value-adding creative settlement terms. If ending the litigation itself has benefit to your client, consider ascribing additional value to that. Reflect on how the other side may be thinking about the same issues, and discuss a negotiation strategy for the mediation that aims for your target range.
5. Use a pre-mediation conference, or call opposing counsel
Attend a pre-mediation conference with your mediator and opposing counsel to address practical matters with a view to making settlement on the day of mediation more likely. Issues often addressed at pre-mediation conferences include: identifying and agreeing to exchange remaining necessary information; whether issues can be narrowed and/or if briefs should focus on any issues that now seem to be driving the dispute; who should attend from each party; location and length of mediation; whether accommodation of a disability or vulnerable party is needed; and whether counsel or parties wish to speak at an opening session. If your mediator does not offer pre-mediation conferences, you may wish to call opposing counsel to discuss some of these issues directly.
6. Address your written and oral advocacy to the real decision-maker at mediation — your opponent
Your opponent is the target of your advocacy in mediation. In my view, insulting your opponent is unlikely to endear them to your point of view. Rather, using respectful language, making succinct submissions on the facts and law in your favour, and, where appropriate, even making concessions should give your opponent the sense that you are a reasonable lawyer and excellent advocate … with a fantastic case — all of which better positions you for productive negotiations in mediation.
7. Delivery your mediation brief on time — or early
When the other side receives your brief with enough time to truly digest your evidence and arguments, they can be persuaded by the strength of your case. That extra time allows them to realistically recalibrate expectations and adjust planned settlement amounts as necessary.
This is especially important when insurers or large organizations are involved; your arguments will often need to be run up the ladder to secure approval for a higher settlement than initially anticipated. That’s a process that simply can’t happen effectively if your brief arrives 24 or 48 hours before the mediation.
Surprise as a strategy may be effective at trial. At mediation, where your opponent is the decision-maker, it’s usually unproductive.
8. Consider apologies
With your mediator, consider whether an apology delivered by either side might help move settlement discussions forward or form part of a resolution. Research has identified components of an effective apology, which I review with the apology giver to assist their delivery in cases where parties agree that an apology is important.
9. Harness value even if the mediation doesn’t settle
If the mediation doesn’t settle, consider asking the mediator to help parties agree on a timeline for next steps in the litigation. If missing information was an obstacle to settlement, consider setting a date by which that information will be exchanged and when further settlement discussions or a continued mediation will take place. If opposing views on a critical legal issue prevented compromise, consider arbitrating or obtaining an early neutral evaluation of that issue, with remaining issues to be later mediated. In any case, you will have likely learned a lot more about your case during any mediation and should prepare a memo to file with your current assessment.
10. It’s not over until it’s over
Consider continuing the negotiations after the mediation with or without the mediator’s help. After an unsettled mediation, parties may still be willing to pick up on settlement discussions due to information they learned at the mediation but were not able to quickly digest, or a sense of remorse that settlement had been within reach but was not actually reached.
11. Choosing a mediator
In a mediation, there are often multiple factors preventing resolution that a mediator needs to identify and address. Are there difficult personalities and emotions that need to be managed? Do complex legal issues require expertise? Is space needed for parties — even highly commercial parties — to “get things off their chest” before they can move forward to think about resolution? Are apologies or opportunities for the parties to better understand one another required? Do multiple parties require logistics and leadership?
The skills needed to address these issues are serious, and quite different than those involved in litigating or arbitrating. Consider a mediator’s training, legal background and approach, and how it lines up with what is needed in your case. If you are interested in trying someone new, ask about their process to see if they might fit your case and consider requesting references.
Mediation can offer tremendous value and satisfaction to your clients. As an advocate, your role in educating your client about the process, selecting a mediator, considering client interests and advocating appropriately all play an important role in whether mediation’s potential is achieved.
Jennifer Egsgard mediates commercial, employment, intellectual property, tort claims and other disputes. Her approach draws on insight from 18 years of Ontario legal practice and an exclusively mediation-focused career since 2019. A Harvard-trained mediator and Distinguished Fellow of the International Academy of Mediators, she brings perspective, preparation and persistence to every dispute. www.egsgardmediation.com. Subscribe to her newsletter, The Mediation Brief, or contact her via email here.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the author’s firm, its clients, Law360 Canada, LexisNexis Canada or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
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