ADR, Mediation

Top 10 tips on how to prepare for mediation: Fisher

By Paul Russell, Contributor

People entering mediation after their job has been terminated can improve their chances of success if they bring proper documentation and the right mindset to the process, says Toronto employment lawyer and mediator Barry Fisher.

Drawing on more than 30 years of experience with alternative dispute resolution, Fisher offers employees 10 tips for coming out ahead in these talks.

Mitigate your damages

“No matter why you were let go, people almost always have a duty to mitigate damages by looking for a new job,” says Fisher, principal of Barry Fisher Arbitration & Mediation.

“Prepare documentation showing how hard you have looked for work after you were fired, and then bring that documentation with you to mediation.”

Bring a loved one

Fisher says he always encourages plaintiffs to bring a spouse, family member or someone close to them into mediation.

“The termination affects the entire family, so it’s better that someone is there and hears what is being said first-hand,” he tells “And don’t allow the other side’s lawyer to say a spouse is not allowed to attend, because they are.”

Bring documentation

If you are receiving employment insurance, go to your Canadian Revenue Agency (CRA) account page and print off the latest statement about how much you have already received, Fisher says.

If some of the severance paid by the company was put into a registered retirement savings plan (RRSP), bring a record of that, he says.

“It’s also helpful to know how much RRSP room you have, and that is disclosed on your notice of assessment after you file your tax return,” Fisher says.

In addition, bring your latest T4 from the CRA and a payroll statement showing exactly how much money you were paid before being let go, he says. “It is remarkable how much time we waste arguing about how much the person received on termination, or their salary before then.”

Be honest with the mediator

Most mediators hold private sessions with each side, Fisher says, stressing the need for people to be forthright in these private discussions.

“It pays to be open and honest with the mediator,” he says, “because if I find out halfway through the mediation that you lied to me three hours ago, that will not help your case.”

Be honest with your lawyer

Fisher advises people not to conceal information from their lawyer in an effort to bolster their cases since that tactic will invariably backfire.

“Once the truth comes out, your credibility goes down the toilet, and your case will fall apart,” he says.

Research the mediator

“Most mediators have websites where you can read about them and get a sense of what they’re like,” says Fisher, who practises the evaluative method of mediation, where he will give his opinion, if asked, about the strengths and weaknesses of the case he is hearing.

“All mediators approach the process differently,” he says, adding that his site includes links to the various articles he has written about topics related to mediation.

“Some people have told me they have read every article that I wrote back to 1975, which I think is amazing.”

Ask for privacy

Fisher says clients who want to consult with their lawyer can ask the mediator to step out of the room during those discussions.

“You can throw me out of the room anytime you want,” he says.

Conversely, if the lawyer leaves the room, Fisher says he will not talk to the client privately “unless it is about the weather.”

Be prepared for surprises

“Life rarely goes the way you thought it would, and in mediation, something new is sure to come up, so be prepared to learn something new,” Fisher says.

Some clients think they have a slam-dunk case, he says, and are shocked by information that comes out from their former employer which hurts their arguments.

“The more that people have to move from their original position, the more difficult mediation becomes,” Fisher says.

Tough decisions will arise

“Employers can’t force you to make a decision on the spot, although they also are not required to keep the offer open indefinitely,” he says. “Deferring a tough decision rarely makes it easier.”

Fisher urges people to come into mediation with a willingness to consider whatever is offered in a timely manner.

“If you say you want 48 hours to think about it, why?” he asks. “What will you do in those 48 hours, except not sleep?”

Be flexible

“If I tell people they can expect to receive between $50,000 to $100,000 at the end of mediation, people tend to focus on that last number and seem to forget the first one,” says Fisher.

“When you start the process, you’re going to be asked to make difficult decisions,” he says. “It’s not going to be easy, and hopefully you will leave with a settlement that you feel comfortable with.”

Fisher says the mediator’s job is not to please everyone but to be fair.

“Happiness is not the goal,” he says, warning that there is always the possibility that people will get less money than the employer first offered, due to cause allegations or contract language.

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