ADR, Mediation

Settlement not the sole indicator of a successful mediation

By Staff

Cooling-off periods and interim agreements can help parties consolidate gains made in mediation, even if the session did not result in a settlement, Toronto mediator Bernard Morrow tells

Morrow, principal of the full-service dispute resolution firm Morrow Mediation, says it’s natural for mediators to feel disappointed when the day ends without signed minutes of settlement, but he cautions colleagues, counsel and disputants against making it the only measure of their success.

He says he carefully collects and monitors data on his mediations, and noticed that for 2018 his settlement rate was at 80 per cent, leaving 20 per cent that need follow-up or further work.

"Ultimately, lawyers and their clients place a high priority on settlement, but there is always a small percentage of disputes that don’t settle at mediation," Morrow says.

“In those cases, I always tell the parties that just because they didn’t settle, it doesn’t mean the session wasn’t a success. When everyone comes together in good faith, at the very least, you’re getting an opportunity to exchange valuable information, learn about the strengths and weaknesses of your own case and perhaps get a chance to assess the credibility of key witnesses," he says.

In jurisdictions such as Toronto, where mediation is mandatory for most civil and estates matters, some parties still see the process as a “tick-box exercise” before getting their case set down for trial. But, Morrow says the vast majority of participants seize the opportunity and participate in good faith, motivated to work towards a resolution. For those who participate in mediation willingly, he says any impasse they hit may only be temporary.

“It’s often the case that the parties will say, ‘We’ve accomplished a lot in the time we spent here,’” says Morrow.

Failing a full settlement, Morrow says an interim or mini-agreement can help narrow the issues in dispute or simplify the procedure moving forward. For example, he recently mediated between parties involved in a dispute over a construction project.

“They didn’t settle, but they did reach a mini-agreement that resulted in them jointly sharing the cost of retaining an expert, whose opinion they would rely on,” he says. “Once the evaluation was complete, they were able to come back to the table with a critical piece of information that established the basis for a final settlement.”

In other cases, a simple cooling-off period can do the trick without the need for any more formal intervention.

“The discussion at mediation may have planted the seeds of settlement, but sometimes people need a little time to sit back, cool off and think about things before ultimately committing to a resolution,” he says. “A cooling-off period can give parties who’ve reached a tentative settlement an opportunity to confer with a spouse, business partner or superior."

However, he says a cooling-off period following mediation can potentially undo the gains made during a session — particularly if there are influencers or decision-makers in the background that were not privy to the flow of discussion at mediation. It’s for this reason that Morrow always confirms with the participants before the start of mediation that they have full authority to reach a full and final resolution.

“But, despite this safeguard, decision-makers can get cold feet or reach their limit of authority, so you’ve got to be flexible," he says. “In those cases, I’ll encourage a call — to a spouse or more senior decision-maker — during the session, but if a cooling-off period is needed, you have to respect that."

In his own practice, Morrow makes a point to follow up with counsel for the parties in every case where a dispute was not completely resolved under his watch. He frequently encourages them to schedule a follow-up teleconference or a fresh session in order to keep the momentum going or to establish a timetable for next steps.

“It can be an email or a phone call a day or a week after the mediation, depending on the situation,” he says. “It’s a value-added service that I do for the love of the work, rather than with an eye to charging further fees.

“You try to keep the conversation going because it’s often the case that a dialogue will spark something that was not fully explored before, and you help to move the parties closer to resolution,” Morrow adds.

In one recent personal injury case that failed to settle at mediation, Morrow was subsequently able to recast certain details of a proposed agreement in a way that appealed to both parties, and the case then settled within a week following fresh talks he facilitated over the phone.

While it remains his goal to reach a complete resolution at every mediation he manages, Morrow recognizes that time is sometimes needed to allow the dispute to ripen.

“Mediation is a process, and if you maintain faith in that process and believe in the value that productive dialogue can bring to the parties in dispute, then something positive or useful should come out of every session, even if a complete resolution must wait for another day."

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