A lawyer friend of mine recently sent me a link to a sarcastic piece on how lawyers should prepare to attend a mediation. Although it was funny and very clever, it strikes me as more than just a little “too true”.
The legal profession (and I am one of them) has been very slow to adopt mediation as anything more than a distraction at worst or opportunity for a 3rd opinion at best. Mediation can offer so much more. For the most part I think this is about ignorance and not the sort of self interest that manifests as striving for more billable hours.
If you are planning to attend a mediation with your lawyer, make sure she/he understands that you would like to benefit from the wider set of possibilities that the process can offer in its higher forms. Of course your case might not be one of those type of cases but give it a chance before giving up. – Put your mind to what your interests are and what the other side’s interests are. Don’t limit yourself to conceptualizing solutions in terms of a dollar figure – what do the dollars represent to you to the other side? – what will you do with them or without them? Make sure you have a plan to listen and set your intentions to be as open and creative as possible. If we don’t aim high great achievements are just a matter of luck.
Written by Mitchell Rose
TO: Very Junior Associate
FROM: Senior Partner
RE: Oil v. Water – Mediation
There is a mediation scheduled for this case next week. I believe that it is either mandatory under the Rules of Civil Procedure or, in a moment of rare weakness, I reluctantly agreed to it. I would like you to attend at the mediation in my place. I’ll be golfing. Attached is the file comprised of ten banker’s boxes of documents for you to quickly review.
This case will never settle in a million years. I am absolutely certain. Therefore, I see no point in preparing for and participating in this mediation in earnest. In any event, we all know that, despite the obscene cost, the countless hours, the utter uncertainty of the outcome (not to mention collection difficulties and the prospect of appeals), a trial is the only sane method of resolving each and every civil dispute.
Accordingly, even if the opposing counsel and the mediator we have hired are prepared to undertake the serious work necessary to resolve this case, you must prevent this from happening at all costs. We simply need to get this mediation over with so that we can have our judicial pre-trial conference and then move on to trial. Fortunately, in case you should accept this assignment (Who’s kidding? It’s not as if you have a choice), I am setting out below some suggestions on how to sabotage a mediation which were prepared by a colleague of mine who is a litigation lawyer and mediator. Perhaps he was being facetious but I can see no reason why we should not take his “advice” at face value.
1. Do not bother delivering a statement of issues or a mediation brief in accordance with the Rules or the mediator’s stated policy. However, if you feel that you must send something in advance, do not be selective about what you include in your material. Just bombard the mediator and the other side with lots of paper on the day before the mediation. Let them figure out for themselves what your position is and which documents support your case.
2. Send a lawyer to the mediation who does not have carriage of the file. Ideally, this lawyer should be someone who knows little or nothing about the case and has no prior working relationship with the client. Therefore the client won’t be able to look to the attending lawyer for guidance (Note: If you haven’t guessed by now, this is the reason why I am sending you to this mediation).
3. When you arrive at the mediation inform the mediator of the precise conditions of your participation, such as refusing to engage in a joint session. Better yet, advise the mediator that he or she has one hour to settle the case or else you are walking out! For dramatic effect, tell the mediator that you have a plane to catch so he or she had better hurry up.
4. Do not come to the mediation with your client. If the other side gets upset about that then simply tell them that your client will be available by phone or that you have already obtained settlement instructions. Do not bother obtaining the other side’s consent or a required court order in advance.
5. If there is a joint session then kick up a fuss about essential matters like the seating arrangement, the fact that there may be more than one lawyer on the other side or that the opposing party’s spouse wishes to sit in.
6. If your client does attend along with you, do not let the client say a word. Certainly do not permit the mediator to address the client directly during caucus. After all, this is your case!
7. When it is your turn to speak during the joint session, viciously attack the opposing party’s character. Better yet, point out all of his or her lawyer’s procedural gaffes to date so as to embarrass the lawyer in front of the client.
8. Given that our client is a defendant debtor in a collection case, suddenly “cry poor” at the mediation, but offer no evidence to corroborate your claim of impecuniosity.
9. Should you be relying on case law to support your position, don’t bother to include the cases in your brief or even bring them along to the mediation.
10. When you think you have heard enough from opposing counsel or the mediator, stand up and start packing up your belongings and tell everyone that you are going to leave, NOW! Show them that you really mean business. However, if the other side should try this tactic first, react by packing your belongings at an even quicker pace. The first one to walk out wins.
I am told that if you follow a few or more of these suggestions then the mediation is bound to fail despite the mediator’s best efforts. Good luck and please don’t call me for help while I am on the golf course.
Mitchell Rose is a mediator and lawyer with Stancer Gossin Rose LLP in Toronto. He also writes on a variety of legal and ADR related topics. Mitchell believes that humour can be one of a mediator’s most effective tools for resolving conflict. He can be reached at firstname.lastname@example.org