ADR, Mediation

Face-to-face first meetings vital in legal matters

By Rob Lamberti, Contributor

Lawyers should meet with their clients in person to determine the true issues of a file, says Toronto employment mediator and arbitrator Barry B. Fisher.

"There's something about a face-to-face meeting that communicates more than through Skype or filling out a form or talking on the phone," says Fisher, principal of Barry Fisher Arbitration & Mediation.

And one of the key areas to explore in a dismissal case is human rights legislation, which could result in a higher award, he tells

Fisher cites an Ontario case where a disabled worker was dismissed from a job. The plaintiff's counsel sought to amend the action to include a human rights application, but it was too late — the judge refused to include the amendment.

"The best approach is to have a thorough first meeting with a client to get the necessary information," he says. "Both the lawyer and the client have to invest the time to talk face-to-face about the issues at hand."

Fisher says counsel should "always explore human rights issues" when speaking with a client.

"In a wrongful dismissal action, the principle is what is reasonable notice," he says. "In a human rights violation case, it's a but-for test — but for the violation, what would have happened? So the argument is, but for the violation, she would still be working there. That is why reinstatement is a remedy.

"I learned a long time ago that the thing that most concerns a client may not be the best legal remedy. The job of a lawyer is to analyze the facts and advise them on the best course of action.

Clients should expect their lawyers to conduct a comprehensive interview to determine the facts, Fisher says.

"I used to have a template with six pages of questions that I would have a client fill out," he says. "You can't always rely on them to tell you the relevant information because they're upset for a different reason."

When he was still practising as a labour and employment lawyer, Fisher says he forced himself — despite having the experience gleaned from conducting thousands of interviews — to follow the template to ensure he had covered all the relevant issues.

"For instance, one of the things people sometimes forget to ask is if there's a written employment agreement," he says. "Are you a member of a union? There's a series of routine, boring questions that lawyers should be asking and certainly human rights is one of them."

Lawyers should also explore whether the person has a health issue or was dismissed because of age, says Fisher.

"Tell me the facts,” he says. “I will look at the client's concerns too, but I'm going to explain the best legal results, which may or may not be something the client understands or has thought of.”

Doing your homework upfront pays off, says Fisher. Lawyers are well aware of time limitations, but their clients may not be, so they should seek legal advice fairly quickly after an event where they feel wronged, he says.

"A time period is one of the things a client never seems to know about," says Fisher. "You're more likely to miss a deadline if you don't get the story up front. Unfortunately, I've seen numerous times in my mediation practice where someone has a good claim, but too much time has passed."

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