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Mediation

Certainty of settlement is mediator's superpower

A mediator’s superpower is the certainty provided to participants when they negotiate a settlement, Toronto mediator and employment lawyer Peter Israel tells AdvocateDaily.com.

In the absence of the authority to decide a case or even any of the facts in dispute between the parties, mediators are working with a relatively limited set of tools, says Israel, founding principal of PI Mediation.

But he gets the most out of what little power he has by emphasizing the value for the parties to know exactly what they are getting with a negotiated settlement. In addition, he’s unafraid to exploit the uncertainty in each room, using an evaluative style that allows him to pick holes in each party's case. 

“A mediator can give a neutral reality check to each side,” Israel explains. “By highlighting the uncertainty in each room, you give the parties an incentive to settle.”

In an Israel mediation, the parties skip the plenary session favoured by some and get straight to the business of negotiation. After reading the briefs provided to him by counsel, he comes to the table with an idea of where things stand, and then uses the early part of a session to fill in all the factual or legal gaps in the material submitted by the parties

“You go one room at a time, where the risks in each are different,” Israel says  

And sometimes it can be challenging, he says, as there's a fine line between highlighting the holes in a party's arguments and looking as though you’re simply attacking their case.

Israel says a mediator should keep the evaluation strictly limited to the party whose room he is in since providing an advantage to the opposite side would be a severe violation of a mediator’s neutrality.

“But mediators can use the possibility that the other side may wake up to weaknesses in the case to promote the value of a settlement,” he adds.  

Israel says the unpredictable nature of employment law litigation makes his job easier.

“Seldom, if ever, will you get a case that is so clear cut that either side can accurately anticipate what a judge would ultimately decide,” he says. “That uncertainty is another risk for parties to think about, along with the obvious costs of litigation in terms of money, optics, spin ability, rigorousness of examination and cross-examination and the lengthy passage of time.

“The mediator can use all those things to encourage the parties to resolve the dispute. If you can achieve a resolution now, there’s no need to worry about all that uncertainty and cost,” Israel adds.

He says the technique works most effectively on parties who are open-minded enough to listen, follow and understand.

“If you can earn the respect of each room, and show them that you know what you’re talking about, are rational, unbiased, and non-judgmental, it makes it all the more difficult not to agree with a person like that, and resolution becomes the obvious choice that’s in everyone’s interest,” he says. "Analyze all the risks and then offer certainty."

The style doesn’t suit everyone, but there’s no arguing with Israel’s results: his settlement rate currently stands around 92 per cent.

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