Achieving Resolution at Mediation through a Principled Process

In my last blog piece, I provided some general recent history to the emergence of ADR in Alberta and concluded with a reminder about two fundamental concepts to the theory and practice of mediation – the voluntary nature of it and party autonomy. As stated at the end of my last blog, the principal objective to this blog is to encourage reflection and dialogue by parties to disputes, their counsel and mediators, in the dual and intertwined exercise of achieving resolution at mediation, but through a principled process (guided by the mediator) with which all parties are both comfortable and satisfied. This piece will be practical in approach and be focused, largely, on personal injury/insurance disputes given the large volume of such disputes in mediation and the predictable patterns that evolve in most of them. Later blogs will circle back to considerations unique to other types of disputes (commercial, family, workplace) considered for or headed into mediation. 

Consider this scenario. The mediator is retained and a letter is received from him or her confirming the retainer and setting out, inter alia, requirements/preferences for briefs in advance of the mediation proper. No suggestion or option for a pre-mediation meeting, whether in person or by telephone, to discuss process issues and background to the case, is found in the letter.  These are the first clues that the mediator is likely intent on imposing process on the parties, without consideration for, or sensitivity to, the input that the parties and their counsel are entitled to and should provide to matters of process (party autonomy).

This problematic pattern continues when the parties convene for the mediation proper. The mediator does not suggest short private opening meetings with each of the opposing groups. Again no apparent interest or thought by the mediator to developing rapport with the clients and their counsel from the outset or to be sincerely inclusive of suggestions from the parties and their counsel concerning the mediation process about to unfold.   

The opening/plenary session begins – the fundamental purpose to which ought not to be for the mediator to inject his/her views concerning the merits of the case, offer critique of some arguments advanced through the briefs or to dominate the dialogue. The true intent is to provide each side with an opportunity to highlight perspectives on issues and, even more importantly, allow the clients themselves an opportunity to speak if desired. 

Then typically the process breaks off into caucusing with the intention of commencing the negotiation process. Whether it commences during the opening session or in the early phases of caucusing, most mediators seem anxious to provide their views on the appropriate quantification of a claim, whether sought or not by the parties at that or any later juncture of the mediation. This is the typical approach of most Judges in JDRs and of those now retired from the bench and continuing with mediation services in the private realm. An early start to evaluative input by a mediator, particularly if uninvited or unwanted by the parties is, with respect, completely inappropriate. It further shows a lack of understanding or disregard for the concept of party autonomy and respect for an appropriate process at mediation. Often these same mediators will show little interest or patience in facilitating and guiding the negotiation process. All of this is a recipe for an unsatisfactory and unsatisfying mediation (to the parties) even if a resolution is ultimately achieved. 

Plaintiffs, in particular, typically wish to be heard about the impact an accident and injury has had on their lives and are anxious to see a fair process unfold in the assessment of their claim and the path to reasonable resolution. Even though personal injury mediations, more so that other types of disputes, are typically grounded more in a reasonable assessment of the merits of the case and a likely trial outcome (in part because there is no continuing personal or business relationship between the opposing parties that can or will continue post dispute resolution), a mediator’s evaluative input, if provided, must be expressed as a range of possible trial outcomes. Litigation experience teaches counsel and mediator that there is no correct or predictable number at which a case will be determined at trial. No two Judges will assess a personal injury claim at trial identically or, concurrently, all of the relevant circumstances underlying it – evidence, credibility of witnesses, relevant law, not to mention the impact of advocacy advanced by counsel in support of or in opposition to the claim. So, for a mediator to opine specific numbers concerning settlement value of a claim, particularly when not invited or requested by the parties and at an early stage of a mediation, is nothing more than an unwanted private adjudication of the claim which only serves to unacceptably deny the parties and their counsel an opportunity to advocate, persuade and strategize in the negotiating process leading to an anticipated resolution.

As we are all aware, the gap between opposing settlement positions at the outset of a mediation is typically very wide. Mediators who are impatient and unaware of fundamental principles to the desirable unfolding of process at a mediation will provide early evaluative input and an artificially specific settlement target number. It will undoubtedly be more than the defence advocates and significantly less than what is sought by a Plaintiff. In the context of typical wide gaps in settlement positions at the outset of a mediation, this early evaluative input is unhelpful. It only serves to polarize the parties, strain the process and dialogue within it and undermine the opportunity that the parties typically seek to work through incremental compromise, interspersed with dialogue and discussion, toward a workable compromise at the conclusion of the mediation. It does not take more time or cost more money to follow a principled path toward resolution. Instead of a mediator trying to manage impasse and discord triggered by early and often unwanted and artificially specific valuations of a claim, in a principled and disciplined approach to mediation, the compromise toward resolution follows a more civil, respectful and constructive path.  

Properly conducted by a mediator, the process need not, in the vast majority of cases, involve acrimony or excessive friction. Reasonable and appropriate compromise can be accomplished through positive rapport existing or being developed between the mediator, counsel and clients (all at the initiation of the mediator), respect for the parties, their perspective and the process (again, the responsibility of the mediator, first and foremost), solid, constructive dialogue amongst all present and, as the parties near resolution and if necessary and desired by the parties, exercise of soft power by the mediator (persuasion, “reality checks”, reassurance from the mediator concerning the reasonableness of the target settlement number that is becoming apparent). All of these considerations and phases to most mediations are facilitated by trust the parties and counsel must have in the mediator to guide the process to a satisfactory conclusion. 

Here are a few more reasons why early and particularly uninvited evaluative input from the mediator is undesirable and unhelpful to the mediation process:

• Litigation experience tells us credibility of a plaintiff in personal injury matters is a significant consideration. In advance of a mediation, a review of opposing mediation briefs by a mediator cannot leave him or her fully appreciating how the credibility issue might play out, hypothetically, at trial. Accordingly, it is premature for a mediator, early on in the process and without the benefit of assessing, first hand, the credibility of a plaintiff, to opine on a settlement target number. And, why would a mediator opine on the settlement value of a claim without first listening to argument and advocacy advanced by opposing counsel in the opening phases of a mediation.
  

• Consider the source – potentially helpful and well informed evaluative input from a mediator is largely dependent on his or her own trial experience. Anyone can read case law – it is significant trial experience that informs a mediator concerning all of the practical risks and judicial tendencies associated with case presentation and determination at trial, followed by appeal. Even more senior mediators who come from a litigation background have surprisingly little trial experience. Trial experience also tells us that how a case might look and be anticipated to unfold at trial at its start often changes quite dramatically as the trial proceeds (unpredictable twists to evidence, unpredictable input and reaction by Judge during the course of evidence, etc.) – one more practical pitfall to mediators and counsel relying too heavily just on the evidence available at the mediation or anticipated for the commencement of trial.
  

• Consider, as counsel, that no matter how much material a mediator might be supplied prior to a mediation for his or her review, counsel will always know the file and the parties involved better than the mediator, and when one combines this reality with possible imbalance between counsel and mediator concerning trial experience (i.e. counsel more than mediator), the evaluative input from the mediator must be carefully weighed by counsel.

If you and your client want and consider it strategically beneficial to have a mediator dictate process and outcome at mediation (party autonomy), it is your process (not that of the mediator) then you have that right. However, rarely would opposing sides to a mediation embrace such a process collectively. And why would one as counsel prefer to surrender a significant role in a mediation to the mediator? If not being offered or suggested by the mediator, insist inclusiveness in process determination from him or her, advocate for your clients (it can be persuasive to both the opposing party and mediator), and ensure that there is room and time allowed in the process for dialogue and strategic negotiating. Critical to the success of a mediator’s work is a consistent ability to “read” a room, “read” evolving individual and strategic dynamics unfolding during the course of the mediation, and demonstrated sensitivity and application of key principles underlying the work of mediators, which is informed both by experience and training. Watch for these traits and patterns on the part of a mediator and, if somehow deficient, do not hesitate to offer your suggestions and needs to the mediator during the course of the process.  

So, hopefully, for reasons spelled out in this piece, amongst many others, counsel might be persuaded that mediator selection and proactiveness on the part of counsel at a mediation are important considerations. If not already familiar with a shortlist of experienced mediators, interspersed with promising and effective “up-and-comers”, check with your colleagues concerning their experiences with various mediators, check the websites maintained by mediators for insight on his or her approach and background, read papers prepared by the mediator to better sense their style and approach, experience and training, and inquire about and be mindful of the trial experience of a mediator, particularly in circumstances where evaluative input is considered to be likely important and desirable at the contemplated mediation. Seek out mediators who have a demonstrated track record of encouraging inclusiveness by all in the process, and are skilled at guiding an efficient, respectful and satisfying process toward resolution of the dispute at hand.