Transcendental mediation | Marcel Strigberger

By Marcel Strigberger

Law360 Canada (July 7, 2023, 2:36 PM EDT) --
Marcel Strigberger
Marcel Strigberger
En garde! Shall we mediate? Why? Mediation was certainly unheard of when I went to law school. The game plan was learning the law to educate you to maneuver through the court system to enable you to win your case. 

I recall studying Donahue v. Stephenson, that snail in the ginger beer House of Lords landmark negligence decision (M’Alister (or Donoghue) v. Stevenson). I don’t recall the torts professor saying anything about whether the parties ever tried to resolve the action through mediation. Perhaps these days, the prof might say, “What can we learn from this case? If you say negligence, you’re wrong. The real lesson is that a good mediator could have gotten this case settled out of court.”

Then again, it would not have been too helpful had the case resolved at a mediation. How would the law reports read? “Donahue v Stephenson — negligence case resolved — settlement terms confidential.”

I wonder what the history of mediation is. 

There were certainly no shortage of disputes and wars throughout. Empires bent on conquest, from Alexander the Great to Hannibal to Julius Caesar, came and went.  Nowhere in my research did I come across anything like Roman legions gathering at the border with Gaul, waiting for the go-ahead to attack and plunder should mediation scheduled for Thursday fail.

You might say King Solomon was a mediator when he intervened to resolve that dispute between those two women who claimed to be the mother of that baby. Each lady gave birth, one’s died, and they both claimed the live one was hers. The wise king offered to cut the baby in two and give each party half. The rogue mom of course agreed, making it obvious to the king who the real mom was not. (Good thing it was obvious as this case could have been a real mess).

When I started practising in the 1970s, litigation was litigation. You issued a claim, went onto examinations for discovery and your case culminated in a trial. Winner take all.

Eventually, alternate dispute resolution started to germinate in my jurisdiction with the advent of the judicial pre-trial. We would attend with our clients and have a resolution meeting with a judge for about an hour. The lawyers were required to file a short, couple of pages summary to give the judge an idea about the case.

The problem was that for many lawyers the operative word was “pages.” Merriam-Webster’s dictionary defines short as “having little length.” No doubt to many lawyers, Tolstoy’s epic War and Peace would fall into this word-size category.

Very often the judge, after listening to some wrangling between the lawyers, would shrug his or her shoulders and say something like, “If this case goes to trial, someone will get their ass kicked.”

Though often helpful, an hour or so was not enough to bring about the desired settlement.

Mediation started to become popular here in the 1980s. A neutral person properly informed sits down for a few hours with parties willing to settle.

And for mediation to work it helps if you have a competent mediator. I have noticed a few styles of mediators.

The Courier

This person simply virtually delivers offers and counteroffers to the parties sitting in their respective breakout rooms. The drill looks like:

Mediator: They want $1 million dollars. What do you say?

Defendant lawyer: No way. We’ll pay $20,000.

Mediator: OK. I’ll deliver your counter to them.

They offer little suggestions for resolution. Given what they are paid, it might be just as effective and certainly cheaper to use an agent from U.P.S. 

Mediator (in plaintiff’s room): They’re offering $20,000.

Plaintiff lawyer: Tell them we’ll take $850,000.

Mediator: OK. Will do.

Plaintiff lawyer (thinking) I’m surprised this guy isn’t wearing that brown uniform.

The former judge 

Though knowledgeable, many former judges still think like judges. Firstly, often they have not left their egos back in the courtroom. When they walk into the mediation room they have that air about them, as if they almost expect some clerk to bellow, “Oyez, Oyez, oyez. All rise. “

They will remind you they were judges for 20 years and they know what’s best for the parties. They’ll remind the parties of the perils of litigation, saying something like, “If this case goes to trial, someone will get their ass kicked.”

The pusher

This mediator is the opposite of the courier. He or she is gung-ho to get this case resolved. Sometimes too gung-ho:

Mediator: They want $1 million dollars. What do you say?

Defendant lawyer: No way. We’ll pay $20,000.

Mediator (in defendant’s room): The plaintiff comes across as sympathetic. You do know a jury listening to him could hit you for millions? This case is worth settling today.

Mediator (in plaintiff’s room): They’re offering $20,000. As you know juries are unpredictable. And a bird in the hand is …

At least this mediator works hard, fervently wanting the case to settle.

One problem with the mediation culture is that many lawyers lose the opportunity to acquire trial skills. Sure, given the vagaries of litigation a just settlement is nothing to sneeze at. On the other hand, I know of many younger lawyers in practice for several years who have never or rarely conducted a trial, jury or even bench. Can they handle a trial? Should lawyers lament the dwindling opportunities of trial experience?

King Solomon was wise. I think of another wise man, Albert Einstein, who reputedly said, “A ship is always safe at shore, but that is not what it’s built for.”

Einstein also said, “Intellectuals solve problems. Geniuses prevent them.”

What else can I say about mediation? I agree with Einstein, whatever he says.

Marcel Strigberger retired from his Greater Toronto Area litigation practice and continues the more serious business of humorous author and speaker. His just launched book Boomers, Zoomers, and Other Oomers: A Boomer-biased Irreverent Perspective on Aging is now available on Amazon, (e-book) and paper version. Visit Follow him @MarcelsHumour.

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