Reference Articles > So Your Are Going to Mediation: What Does This Mean?
     

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THE DAY OF THE MEDIATION

This article reviews the day of an estate mediation. It considers the role of counsel and of the party. At first blush the role of counsel as advocate seems directly opposed to the concept of mediation. However, a good litigator can also be the best counsel in mediation since they are experienced in understanding the role of mediation, negotiation and settlement as part of the litigation process.

If the mediation is mandatory, the litigation process has already started. This means the application has been issued by the applicant, the notice of appearances have been filed by the respondent, there has been an order for direction issued by the court which can provide the framework for the mediation including such things as the date of the mediator, the cost of the mediator, and the issues to be mediated.

If the mediation is voluntary (i.e. not mandatory) it is still typical for the parties to agree to a timetable for the exchange of mediation briefs and for the conduct of the mediation.

Next, the parties exchange mediation briefs including relevant documents. A mediation brief typically follows the format set up in the Rules of Civil Procedure and usually includes such information as key facts, an outline of the issues and the position the party.

Now the parties are ready to attend on the selected day. The day of mediation generally starts with a welcome and introduction from the mediator. This is what is called a plenary session or a session involving all the parties and their counsel. The introduction is normally for the benefit of the parties who are usually attending mediation for the first time and the mediator will describe the process of mediation and how the day will unfold. After the introduction, each party and his or her counsel have to opportunity to summarize their issues and anticipated outcomes.


The mediator then may decide to meet separately with a party and his or her lawyer in sessions called caucus sessions. These sessions give the mediator an opportunity to review with each side the troubling issues, to allow a party to let loose and to candidly discuss the strengths and weaknesses of the case. Sometimes the parties need to be separated for emotional reasons or even counsel needs to be separated. The parties’ interests are also examined at this time. The mediation will try to assist in generating settlement proposals. The mediator could have one or more caucus sessions with one or more of the parties. There are no set rules to this “shuffle diplomacy” process.

The day will conclude with a settlement, partial settlement, memorandum of understanding, or sometimes, no settlement at all. Even if settlement is not achieved spending a day at mediation can go a long way to settling some issues or narrowing the true issues between the parties and for each party to gain an understanding of the other side. It also allows counsel to met the client on the other side and assess their credibility. Quite often even the matter settles shortly after mediation.

DO’S

What follows is a sample list of the ”Do’s” if you are going to mediation.


1. Prepare for the mediation as though you were going to discovery or trial.

2. The mediation brief prepared for you by your lawyer should be brief and reflect the Order of Directions.

3. As the client your lawyer should prepare you for the mediation. Often this is the first time your position is presented in detail and you will be “seen” by other counsel for the first time.

4. As part of the preparation with your counsel you should work out problems, bargain, and compromise positions. You should be prepared to acknowledge the position (and interests) of the other side inthe opening plenary session and in subsequent caucus sections.

5. You and your counsel (as should the other parties and their counsel) should be courteous and respectful. You should be open to the underlying interests of the other side and engage in “active listening”.

6. As the client you should be an active participant in the process. The process is for you and you should share responsibility for the outcome with your lawyer.

7. Remember to be open to the other parties’ interests which may or may not be the same as their strict legal rights. Most parties will say and believe the litigation is more than just about money, it is also about justice and fairness.

DON’TS

The following is a list of “Don’t”.

1. It is not useful to shout at the other party or at his or her lawyer, be highly critical, or call anyone names. Remember to be courtesy and respectful.

2. Taking the position that “I’m walking” or “see you in court” is also not useful in reaching the settlement. At this stage the mediator will likely remind the parties they have come in good faith to the mediation and would like to come to a conclusion.

3. Do not allow opposing party or their counsel (or even the mediator) co-opt the mediation.

Remember mediation is a flexible and fluid process. Like the sea the parties, issues and sense of the process ebbs and flows throughout the day. At times it may seem that nothing is being accomplished but time as with most things is needed before the mediator will know whether the process is indeed futile.

For more information on estate, trust, powers of attorney or guardianship topics please see accompanying articles. Remember these articles are provided for information only and are not meant to be legal advice. Please consult with a professional.

M. Jasmine Sweatman practices at the law firm Sweatman Law Firm and can be contacted directly by telephone at (905)337-3307 or by email at jasmine@sweatmanlaw.com.