Key mistakes to avoid for success in mediation
By AdvocateDaily.com Staff
Mandatory mediation in some jurisdictions in Ontario coupled with the desire to find an alternative to the litigation process means more people are using mediation to resolve employment law and other legal disputes, writes Toronto employment lawyer and mediator Peter Israel in HR Professional.
Mediation can reduce delays, costs and the uncertainty associated with the justice system and is a useful method of assessing risk, weighing the merits of a case and negotiating a mutually beneficial settlement, says Israel, founding partner with employment and labour law boutique PI Mediation.
“The likelihood of successfully mediating a resolution significantly depends not only on the parties’ willingness to resolve but also on a mediator’s experience and skill set, as well as that of the parties’ lawyers,” he says.
Israel suggests the following key mistakes mediators should avoid and offers tips for lawyers to assist their clients in reaching resolutions.
Acting as messengers
An approach whereby mediators act as the go-between for the parties, articulating each side’s position or exchanging offers doesn’t add value to the mediation process, he says.
“Further, it may encourage the parties to negotiate by making unrealistic demands or settlement offers in the hopes of ultimately meeting in the financial middle,” Israel writes.
Judging the case or taking sides
He says mediators can highlight the merits of each party’s case and demonstrate “evaluative reasoning” to help the parties reach a settlement, but they should not judge a case on its merits or advocate for one party’s position over the other’s.
Arguing and being difficult with the parties
“Mediation is a facilitative and collaborative process that is not well served by many litigation tactics,” Israel writes. “All parties, including the mediator and the lawyers, must anticipate how others will react to what they say and do.”
When mediators encourage a respectful and collaborative attitude, he says others will follow suit.
“If not, the mediator can insist and enforce the process. The mediator must be hard on the issues, hard on the facts, but easy on the people,” Israel writes.
Confidentiality of the final settlement is one of the primary benefits of mediation, which is important for those who don’t want the details of their case made public, he says.
“If the mediator, or any other party, breaches the confidentiality of mediation, they will have violated both their contractual and ethical commitments,” Israel says. “The legal community is a small one and the importance of one’s reputation cannot be overstated.”
Not emphasizing the value of certainty
Another key advantage mediation offers is the ability to reach a settlement that provides certainty, Israel says, adding few cases are so clear-cut that either side can accurately predict what a judge will decide.
“It follows then that if the mediator highlights the uncertainty in each room then the parties will, in most cases, have an incentive to settle the case,” he writes. “Mediators and lawyers should emphasize the value of certainty, particularly to parties who are risk-averse and reluctant to pursue litigation.”
Ignoring parties’ non-legal concerns
In employment mediations, the emotional aspect of a case can be the most important issue for the employee, and as such, it’s important that the mediator and the other side listen and allow the employee to express their anger and frustration, Israel writes.
“Aside from demonstrating empathy, such an approach may reveal the true stumbling block that is preventing a settlement,” he says. “On the other hand, mediators should be mindful to avoid an airing of past grievances. Mediation should be forward-looking to the greatest extent possible.”
Not explaining the mediator’s role and approach
Whether or not the parties have a familiarity with mediation, Israel says the mediator should briefly explain the process, his or her role and approach to mediation.
“A mediator assists and guides parties towards their own resolution. In doing so, he or she may act as an agent of reality but cannot force the parties to settle. Lawyers may assist the mediator by preparing their clients (and themselves) prior to mediation. All parties should be prepared to listen, be creative and be solution-focused,” he says.
Taking trust for granted
Mediators, notably senior ones, should not presume that because they’ve been named mediator they will be trusted by the parties, Israel writes, adding confidence will need to be earned and maintained as both sides must feel they are on a level playing field.
“Mediators should demonstrate that they are intimately familiar with the relevant facts and legal principles and must never ‘just go through the motions,’” he says. “Losing either party’s trust will significantly decrease the likelihood of reaching a settlement, as well as negatively affect future business or referrals.”
Believing “final” offers/giving up too easily
In mediation, it’s not unusual for parties to present so-called final offers, but Israel cautions mediators not to give up prematurely if the bottom-line offer is rejected as such offers are rarely final.
“There is often a creative, mutually satisfactory solution to be had as the distance between the parties’ positions narrow,” he writes. “Even if the parties remain far apart, it is important to remember that unrealistic expectations are lowered gradually. Lawyers should assist mediators by being forthcoming and reasonable throughout the mediation.”
Missing opportunities prior to mediation
Many times, both mediators and lawyers miss opportunities before the mediation process begins, Israel writes. For example, he says if material, such as pleading or other relevant documents, that would help inform the mediator about the nature of the dispute, they should be included with the mediation briefs.
“The mediator may also benefit from lawyers disclosing the real issue, legal or otherwise, that is preventing resolution of the dispute,” Israel says. “Lawyers should feel free to call ahead if they believe a specific mediation approach is needed. In short, mediation should be active and collaborative even prior to the mediation session to ensure that the mediator has all the necessary background information to increase the likelihood of reaching a settlement.”