Mediation

The importance of time and place in mediation

By AdvocateDaily.com Staff

Litigators could benefit from opening their minds to the possibility of early mediation and settlement, says Toronto mediator Eric Gossin.

Gossin, a mediator with Devry Smith Frank LLP, tells AdvocateDaily.com that the naturally cautious mindset of many lawyers often makes them unwilling to contemplate settlement without conducting a full and thorough assessment of their client’s case.

“The problem is the insecurity of lawyers who fear they will be leaving money on the table or paying too much by settling early,” he says. “There is also a misconception that there’s no point in trying to mediate because nobody would settle at such an early stage, but I see great benefit in earlier mediation in terms of cost reduction, certainty, and all the other advantages that flow from settlement. It is a matter of degree in many cases.

“I would urge counsel to assess whether a very early mediation might be useful to them in the circumstances of their case.”

Indeed, Ontario’s mandatory mediation regime may encourage a more conservative approach, according to Gossin. Under the Rules of Civil Procedure, mediation must occur before a civil case can be set down for trial in Superior Courts in Toronto, Ottawa or Windsor. But such sessions typically occur after the discovery process, rather than following the exchange of pleadings, which takes place at a much earlier stage.

“In medical malpractice cases, or others requiring very specialized reports, it might make sense to wait until you have more information,” he says. “But for most, I think all you need are the basics.”

That’s particularly true for mediations handled by a neutral party like Gossin, whose interest-based approach places less emphasis on the relative merits of each party’s case, allowing for an exploration of the non-legal issues at play.

For example, he was once called in to mediate a developing fight between business partners in the trucking industry over who was responsible for which costs associated with the use of a yard owned by one of the parties, only to discover that the pair had a contentious family history that was really driving proceedings.

“The quicker you get to the root of the problem, the quicker you can deal with it,” he says.

And the longer a case proceeds before arriving at mediation, the more complicated it is likely to become, says Gossin, explaining that the extra time gives parties a chance to become more invested in their positions — and not just ideologically.

“By the time they get to mediation with me, they’ve already spent a significant amount of money on legal fees, and all of a sudden, those costs become part of the problem,” he says. “The person suing wants to recover their costs as well as what they believe they’re owed, while the defendant doesn’t see why they should cover their own costs to avoid what they see as a meritless claim.”

Gossin says it’s not unusual for the legal fees in some cases to match the value of the settlement.

“I’d like to convince the litigation bar that in the vast majority of cases, there’s no reason to wait for mediation until discovery has occurred,” he says.

This is part one of a two-part series examining the importance of the time and place of mediation. Stay tuned for part two, where Gossin will look at whether the location of mediation matters.

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