Mediation Tips
1. When to Mediate
- Anytime! As long as you have sufficient information to properly assess your file.
- Don’t have to wait for any specific stage in the proceeding.
2. Choose the Right Mediator
Although any experienced Mediator will tell you that he can resolve the dispute, if your claim involves a motor vehicle accident or accident benefits claim, I strongly recommend a Mediator that has a background in these areas as they will have the knowledge of the law in the area, as well as threshold and deductibles. Pick a Mediator that has previous Trial experience in this area and has experience with how Judges and Juries approach and decide these types of claims.
3. Don’t Tip Your Hand
- Any offer or proposal you make prior to the Mediation becomes the starting point for future negotiations at Mediation.
- Don’t even suggest to the other side that “I think my client would pay x amount if you made an offer in that regard”. This will come back to haunt you at Mediation especially if this number is your top end assessment for the claim.
4. Be Prepared
- Make sure you have the good command of the facts and law pertaining to your claim.
- Prepare a Brief for the Mediator and other parties. Keep your Brief short and to the point. Anything longer than 5 pages is unlikely to be fully read and understood by the other parties. Make sure you attach only the most relevant documents for your case, such as defence medicals, surveillance and other expert reports.
5. Speak with Your Client
Make sure that the lawyer and the client are on the same page regarding assessment and exposure on the file. You should discuss with your client what your best case, worst case and most likely target for settlement is well in advance of the Mediation.
6. Speak with Other Parties
Well in advance of the Mediation, make sure that all parties are aware of the Mediation date and request that they provide you with any documents and expert reports that they will be relying on at the Mediation well in advance of the Mediation so that you can incorporate them into your assessment. Make sure that you advise them that if they provide you with an expert report, future care report, or economic loss report shortly before the Mediation, it will not be considered.
7. Make Sure all the Appropriate Parties are at the Mediation Table
- In a tort claim there may be other tort actions, an AB or LTD claim. Make sure that all the parties that may contribute towards the settlement are invited to participate in the Mediation.
- Often a global settlement amount will be more appealing to a Plaintiff and will result in a quicker resolution to the file.
- Make sure all the parties that will be required to execute a Full and Final Release or approve settlement are in attendance, including Family Law Act claimants and Litigation Guardians for minors. There is no point in settling a case with a Plaintiff if he/she still must get approval from a spouse, or other FLA claimants before the settlement can be finalized.
8. Mediation Tips
- Set the tone of the Mediation with a good opening statement.
- Get to the negotiation phase as soon as possible.
- Don’t take a bottom-line approach — be flexible.
- Trust the Mediator and the mediation process.
- At points in the Mediation, the Mediator may wish to caucus with only counsel, or with one party, or with a group, or may suggest a period where parties cool off.
- Trust that your Mediator is doing what he or she feels is best for the parties to reach a mutually agreeable settlement.
9. Keep Talking
Even when things look bleak, keep talking with the other side. Often during the course of Mediation, the tide will turn, and one party may make a significant adjustment to their position which could lead to a settlement.
10. Bring the Appropriate Settlement Documents
In most cases I suggest that you bring a blank Full and Final Release as the Plaintiffs will be there to execute the Release. In accident benefits claims, Minutes of Settlement should be executed as the settlement may be conditional on the execution of a Settlement Disclosure Notice which has a cooling off period.
11. Follow Up
If the Mediation does not resolve the dispute, often the parties may have second thoughts in the days and weeks following the Mediation. If the Mediator is willing to offer his/her services, he/she can often help the parties continue with negotiations provided both sides are willing. This may occur when one or both parties have not put their best offer on the table at the Mediation.