Law Times

Page 9 Law Times • December 3, 2012 Focus On ADR Advice for lawyers struggling with mediation advocacy BY MICHAEL McKIERNAN Law Times M ediation advocacy doesn't always come naturally to lawyers, according to a Toronto mediator who says he frequently encounters counsel struggling to contain their inner litigator. "As lawyers, we are trained to threaten people. In law school, you get bonus points for finding more issues. We are told that a good lawyer digs up all the issues and never leaves a claim uncovered," says Barry Fisher, a past chairman of the Ontario Bar Association's alternative dispute resolution section. "It's a dramatic shift when you move to mediation, where the focus is on the core issues, but that training comes out." Gary Caplan, a partner at Toronto's McCague Borlack LLP, rolls his eyes when counsel in the mediations he conducts attempt to "create a mini-courtroom." "They use the language of rights and resort to legal remedies when they ought to be focusing on the business deal that might be there," he says. "Lawyers have to think like business partners of their clients and be more attentive to their needs in order to craft solutions that help their business affairs." But Hilary Linton, who runs Toronto's Riverdale Mediation, says it's not just the lawyers who sometimes allow courtroom practices to leak into mediation. "There are always those lawyers who feel their job is to come in and persuade you as mediator that they are right and there are mediators out there who feel it's their role to engage in that assessment," she says. Heydary-2_LT_Dec3_12.indd 1 For that reason, she says good mediation advocacy starts long before the session in the selection of the mediator. Some disputes, she says, lend themselves better to a more evaluative style of mediation. "Know your mediator and know your client" she says. "The first task is to figure out what mediation process is most likely to be in the client's best interests." Herschel Fogelman, a lawyer with Basman Smith LLP, says the most successful advocates in the family law disputes he mediates are the ones who "appreciate that mediation is a compromise process." "The advocacy has to be measured and presented in a way that demonstrates a willingness to compromise," he says. That kind of attitude leads to a more creative approach to problem solving, he says. In family law, he says mediation allows a multitude of payments between parties — including child support, spousal support, and s. 7 expenses — to be treated together or recast in a way that is more palatable to one or both of the parties. "Some people don't like to write cheques for spousal support but they're happy to pay for other things like a bigger chunk of university fees," Fogelman says. "You can build the deal in a more holistic way and it stops people from having to trade money back and forth." Fisher says the principle works in other areas of the law, too. By changing the emphasis on certain payments, he says the opposite party will become much more amenable to settlement. In employment law, he says, a former employee playing up the reasonable notice period The more lawyers help reach a deal, 'the more the mediator will fight for you,' says Barry Fisher. will have more luck than the one who characterizes the offer as including a bonus and punitive damages to compensate for the employer's reprehensible behaviour. "Recognize that you're trying to get a deal. If you're trying to persuade someone to give you money, you should probably emphasize the issues that cause the least resentment. Identifying and emphasizing issues that are extremely problematic to the other side may not be the best idea," he says. For L. Leslie Dizgun of Himelfarb Proszanski LLP, the focus in a mediation should be less on whether you can win and more on how much it could cost to lose. "In a courtroom, it's either zero or 100 per cent. In mediation, we're always talking about the one per cent to 99 per cent. The exercise is really about assessing risk and looking at the unrecoverable costs and time involved in litigation." Although mediators aren't there to decide the case, Fisher says good mediation advocates will still invest energy in getting the mediator on their side. But whereas in court the focus is on showing that your side is legally right, a key goal in mediation, he says, is proving to the mediator that your version of the settlement could work. "Mediators want to get settlements. That's what we're hired to do. So the more you help the mediator get a deal, the more the mediator will fight for you," Fisher says. Sometimes lawyers want the fight taken to the other side, but almost as often, they're aiming closer to home. "There's an old joke that if it wasn't for the clients, we could all settle every case," Fisher says. "Lawyers often know where the deal is and they need help to get their own clients there. Some will use the mediator to reinforce their own view." LT Mediation advocacy dos and don'ts Gary Caplan and L. Leslie Dizgun presented their mediation advocacy dos and don'ts to an audience at The Advocates' Society in Toronto on Nov. 20. Below is an extract. • Do select a mediator that you believe suits the dispute. Mediators differ in style, technique, and approach. Some encourage opening statements, others don't. Some are facilitative and others are evaluative. • Do use the mediation process as a tool or opportunity to fashion Rule 49 or other offers should the mediation not succeed. • Do come to the mediation with a range of settlement options, not a fixed number. Remain open to the possibility that a proposal may be tabled at the mediation that may not be your number but may satisfy the client objectives. • Don't focus on the bargaining behaviour of the other party. Concentrate instead on the efficiencies of settlement. Think about a range of acceptable outcomes. • Don't deliver a mediation brief that simply repeats the pleadings. The brief is an important advocacy tool that creates first impressions, may serve to set the terms of reference for the dispute, and ignites creative solutions. • Don't be afraid to adjourn the mediation if more information is required and the client is uncertain about settling. www.lawtimesnews.com 12-11-29 11:46 AM

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