Most mediators asked whether they should take the reins would probably answer in the affirmative. Proactive intervention is almost always necessary to resolve any dispute where the parties are unable to reach a compromise by themselves. The tough question, at least in the context of mandatory, or what I would describe as litigation-based mediation, is the extent to which the mediator should attempt to provide evaluative or substantive advice when he or she decides to intervene. On this issue mediators clearly have differing views.
To Intervene or Not to Intervene
As already suggested, I think a mediator should only intervene when it appears that the parties have reached an impasse. While it may be an admission against interest, the fact is that a great number of the cases that settle before mediators require little intervention on their part. In these instances, the function of the mediator is pretty well restricted to maintaining the right ambiance for settlement – which is important – but otherwise generally getting out of the way. In particular when the lawyers have the situation well under control, the unnecessary intervention of the mediator may often be unwelcomed.
Now the obvious corollary to the “intervention – if – necessary” rule is my view that mediation does, in fact, play an important role in settling many cases that otherwise would not be resolved, or at least not resolved until much later in the process. Moreover, I find on average that where mediation does affect the outcome, it is most likely an evaluative intervention of some kind which has proved successful.
This conclusion is not premised on a personal preference for an evaluative methodology. Telling parties what you think about their case – unless you have the Master’s job – is carried out at some risk to the mediator’s ongoing practice and his or her relationships with the lawyers who retain the mediator. I believe that most mediators, myself included, would prefer to use process intervention methods, ie, interest mediation if the conditions exist for a successful mediation using this model. Indeed many parties and their lawyers are not interested in me providing evaluative assistance and there is no question that the Rules appear to endorse the process intervention model. However, my experience is that process assistance is simply not enough to settle many cases that can be settled. The question perhaps is why does the evaluative model seem to work best in litigation-based mediations.
Why Evaluative Mediation Works Best
I would submit that evaluative intervention – what is sometimes described as substantive assistance – is more likely to result in settlement than procedural assistance, ie, interest-based mediation, because the evaluative model better responds to the various factors that affect settlement in litigation-based mediation. Conversely, I would argue that the traditional interest based model, which is premised on a highly interventionist, but process-driven design, does not fit well in the same context. Procedural mediation emphasizes the recognition of the needs or interests of parties conducted in a process of joint definition of issues and problem-solving analysis as part of a mutually arrived at compromise. This model works best if the parties present multifaceted and interdependent interests, often founded on the need to re-establish ongoing relationships without which everybody loses. The Holy Grail of the interest mediator is the much touted “win-win” solution which from time to time can be achieved by playing off the different interests that may arise if the conditions that are described above apply to the circumstances of the dispute. This picture, however, is very different from that presented in most mandatory mediations which are imposed by our rules on parties already engaged in a highly adversarial process. In the cases before me, I find relationship issues are mostly nonexistent or totally beyond repair. Instead of multifaceted interdependent interests, the disputes I confront tend to concern a single overriding interest based on monetary considerations of some kind. This is not say that there are not mufti-faceted issues in these cases, but only that money considerations are the single most important interest therein. The negotiations are played out in a zero-sum framework where one party’s success is the other’s loss. As a result, I find myself most often engaged with parties in a positional bargaining exercise where my interventions are intended to convince all parties to leave more on the table to achieve settlement.
Even more important, the mediation is also played out against a backdrop of the ever present lawsuit. This means the parties’ best alternative to an agreement always comes back to comparing settlement with the results of a judge’s ruling if no settlement is achieved. For the same reason, the presence of lawyers strongly skews the mediation process toward substantive evaluative considerations. By this I mean that most psychological and procedural obstacles to settlement are of limited significance in the large majority of mandatory mediations I conduct (I have not to date been involved in family mediations). My explanation for this centers on the lawyer’s role in mediation. When psychological or other non substantive issues arise, I think the lawyers have already intervened and succeeded in focussing their parties’ attention on the substantive issues in the dispute, obviously making the mediator’s task a lot easier. For the same reason mediations tend to be dominated by the lawyers to whom the client obviously looks for advice, particularly with respect to whether the settlement offered is in the range of what can be achieved at trial.
Thus, in the context of litigation-based mediation, the parties, through their lawyers, tend to focus pretty narrowly on their chances of success or failure and the consequences that flow therefrom. Secondary considerations, such as the cost of litigation and the collectability of awards are related issues that tend to enter into the risk analysis. Deadlock occurs as the result of an apparently unbridgeable gap between each party’s perception on its relative prospects of success or failure at trial and the consequences flowing therefrom. A mediator’s role is to find a way to bridge that gap. I would contend that in these circumstances, an intervention that assists in the evaluation of risks holds out the best chance of convincing the parties to reconsider the advantages of settlement in a meaningful way.
Part 2 Evaluative Mediation is Not a Pre-Trial Settlement Conference
On the other hand, when I refer to practising evaluative mediation, this should not simply be thought of as a form of pre-trial where the parties have more time to work out a settlement. Indeed, I think it would be fair to challenge what I describe as evaluative mediation as being nothing more than a process mediation that focusses on the substantive elements of the dispute, because in fact very little true evaluation occurs in my mediations. What I would describe as a typical evaluative mediation might take the following steps:
• Firstly, the evaluation of the case actually starts in the plenary session when the parties through their lawyers describe the strength of their cases in comparison with the weaknesses of that of their opponent’s. I tend to limit my interventions here to keeping the parties focussed on what I believe are the issues. However, I may sometimes take the lead in what I would describe as the fact development process to speed up getting the information on the table or where I believe my questions may be seen as less adversarial than those of the opposing lawyer. I tend to spend a significant amount of time reviewing the factual issues about which more will be said below. Sufficient to say here that the devil is in the detail. I find if you want to move the parties on the risk continuum, that usually means getting into the facts.
• Secondly, after we move to caucus and if the parties wish to participate in an evaluative process, I pick up on the contentious issues raised in the plenary plus any others I think are relevant. But the key point I make here is that any evaluative analysis by me tends nearly always to occur in the confidential caucus sessions.
• Thirdly, in caucus I try to conduct what I would describe as “negative” analysis of the parties’ case. By this I mean I try to bring to light and review the risks that are not helpful to that party’s case. I am not interested in pointing out strong points or assisting the party build its case. Comments of this nature do not help settlement, nor do I view it as my function to help anyone strengthen the positive elements of their case.
• Fourthly, as mentioned I try to avoid making outright evaluative statements. Instead, I prefer the Socratic method, often seeking the lawyers’ opinion on subjects that raise risk concerns. For example, I might ask a series of questions about how the client’s position can be reconciled with conflicting elements of the case. Risks I might raise pertain to issues of liability or assessment and can be substantive, procedural or evidentiary in nature.
• Fifthly, because I do not find my offering percentage evaluations of risk, even if stated in ranges, to be particularly conducive to settlement, I generally would recommend that a mediator not give an opinion of a party’s chances of success or loss. On the other hand, I might go so far as to suggest that a judge may have more sympathy for the other party’s case or that a party’s assessment does not accurately reflect the true risks of the case. I will also suggest a compromise dollar value because I consider this more a part of the negotiations than really providing a substantive evaluation on risk. It goes without saying that if a mediator enters the realm of offering evaluative opinions, however couched, they must be honestly held and be consistent if expressed in both caucuses.
• Sixthly, if we still do not have a settlement, I engage, as do most mediators I know, in what might euphemistically be described as settlement advocacy. This may take any number of forms depending on the nature of the case and admittedly I have been accused from time to time of advocating very strongly for settlement. This may happen but usually because the parties are very close and I am reluctant to let them leave without trying to close the gap. When I see a case that cannot settle over a $5,000 or $10,000 differential, I really believe it is everybody’s duty to try to go that extra step and I tend strongly to encourage the parties to do so.
I would suggest that the foregoing methodology of conducting a mediation is conducive to encouraging settlement and in some respects offers advantages over the pre-trial settlement conference. Firstly, confidential evaluation avoids the problems created by a party “losing face” when the evaluator prefers the adversary’s chances of success. Parties (and their lawyers) do not like to be told they are more likely to lose than their adversary and particularly not in their adversary’s presence. Indeed, the client’s “loss of face” emotion that results from a poor assessment conducted in plenary can actually be an impediment to settlement, at least in the short run. I try to avoid this by evaluating in caucus, on a negative basis and only after announcing to the parties in my monologue that they will hear nothing good about their cases from me.
Secondly, the luxury of time allows the mediator to work on attitudes to bring the parties around to seeing the benefits of settlement against the backdrop of the downside of litigation. For example, it takes time to eliminate different kinds of impediments to settlement, ie, gambling on a win, seeing the mediation as a step in the negotiations, reconsidering the premises underlying a bottom line position, or reigning in the client’s unrealistic expectations. Such obstacles to settlement stand a better chance of being overcome during an evaluative mediation which gives the parties a chance to reflect on factors lessening their chances of success, besides allowing me time to re-frame my points, if not successful the first time through.
Thirdly, if litigation-based settlement tends to involve the process of narrowing the perception gap on risk and convincing everyone to leave more on the table, I submit that emphasis on negative aspects of the parties’ cases allows greater scope for both parties to move than when a winner-loser assessment is provided. It is a challenge to try to convince a party who has had a good evaluation to contribute more to a settlement. Meanwhile, the “loser” in the evaluation may have lost faith in the process or the mediator who is no longer seen as neutral.
Fourthly, confidential evaluations avoid a party’s worst nightmare which occurs when a mediator unearths an unhelpful issue that previously lay dormant and brings it to the attention of the adversary. This does happen on occasion and indeed, the Master and our Judges have been known to bring a fresh perspective to a case in their settlement conferences, (or worse at trial) much to the chagrin of the unprepared party who may be thrown completely off balance by the late introduction of a new issue into the settlement debate. Because a negative evaluation only deals with these issues in the confidence of caucus, there is less risk of harmful points being raised in the plenary session for the first time at the mediation. Nevertheless, I find that if I have uncovered some issue which the parties appear not to have focussed upon in the plenary sessions or elsewhere in their litigation, raising it in caucus as something that a Judge could eventually consider, may have a very positive impact on settlement.
Finally, I think there is some merit in an evaluation being carried on by a fellow lawyer. The status of colleague allows me to meet with one or both lawyers, for example to inquire why emotions seem to be running high or the cause of the degenerating relations I see occurring between the lawyers. Alternatively, as a peer I can come to understand that the lawyer needs help managing the client’s expectations, thus providing more latitude to challenge the client’s case. I believe that the flexibility and informality of the relationships in peer-conducted mediations are invaluable to achieving settlement, besides making it one of the most enjoyable aspects of the job.
Part 3 Fact-Reviewing Considerations in Evaluative Mediation
In discussing evaluative mediation, there are some important considerations related to what I would describe as the fact reviewing portion of the session. Evaluations of risk cannot be made without some factual foundation in place which is why an evaluative mediation is generally best conducted after discoveries are completed. The best example is the personal injury case where, without professional evidence on the diagnosis and prognosis of the medical condition of the party, no serious discussion of settlement is likely possible.
Nevertheless, I would contend that the absence of hard or proven facts should not be used as an argument against the evaluative process in many mediations conducted before examinations for discovery. Depending upon the circumstances, a review of the factual underpinnings of a case can be remarkably successful without the need to nail down all the fine details that discoveries can provide.
Besides, in some case, parties have no alternative but to use the mediation to engage in a serious dialogue on the facts. Cases under the Simplified Rules fall into this category, as do those of challenging factual complexity where the costs of the fact-finding process cannot be justified against the value of the claims. It is surprising how many of these latter cases exist, particularly after the parties have come to grips with the costs of taking the matter on to discovery (and thereafter to trial).
On the other hand, engaging in the fact-exploring process can involve traps for both the parties and the mediator. Unlike the risk analysis exercise described above, the fact reviewing process is generally carried on, or at least begun, in the plenary session of the mediation. While litigation privilege may protect what is said at a mediation, I always stress that a fact disclosed is generally a fact disclosed. In a similar vein, mediators should be careful not to abuse the greater latitude to ask questions normally afforded them from their position of neutrality vis-à-vis the parties. The mediator walks a fine line when he or she asks a question on an undisputed fact, but nevertheless a fact that may have an impact on the determination of an issue and which nobody appears to have raised beforehand.
Most of these problems can be avoided if the participants to a mediation understand that a review of the facts is not conducted for the purpose of establishing or refuting contentious facts. The main objective of the process is first to work out the fundamental non-contentious facts and secondly to establish the scope and nature of those factual issues which are contentious, ie, analysing some of the underlying premises of contentious facts, such as whether they are credibility or logic based. This latter aspect of the fact review process which becomes part of the risk evaluation exercise, is started in the plenary session and generally completed in closed sessions where the risks of establishing certain factual allegations can be more openly reviewed.
My experience suggests that the fact review process can be very helpful to the parties, even if settlement is not achieved at mediation. In the first place, the nature of the review and the dialogue that usually occurs results in the parties obtaining an overall understanding of the facts of the case, including that from the perspective of the opponent. This is sometimes difficult to achieve without mediation because of the adversarial and “trees v. forest” perspective which is presented to a party engaged in litigation. As can be imagined, this is also very helpful to encourage settlement.
Secondly, the informal and often nonlinear fact reviewing process that occurs at mediation can be more expeditious than the somewhat plodding and formal questioning process that occurs on examinations for discovery. Thirdly, even if the case is not settled, the parties and their lawyer have a much better idea of what challenges they face on the factual side of the case as a result of the negative risk analysis carried in the closed sessions.
But the real advantage of a well conducted factual review in mediation is the inducement it seems to have on settlement. An enhanced appreciation of the factual issues and the challenges they present tends to make parties considerably more disposed to reconsidering a settlement. I think in part the reason for this is that reviewing and analysing facts seems to have a beneficial impact on the parties’ preparedness to consider modifying their BATNAs (Best Alternative To A Negotiated Agreement). If you can change the views upon which a BATNA is founded, the BATNA may change.
Nor do I think there is anything wrong with a mediator working to change a party’s bottom line, although frowned upon by some interest-based mediators. I would argue that good negotiators should maintain some degree of flexibility in respect of their BATNAs. Lawyers should explain to their clients when working out their bottom lines in advance of negotiations that if new points arise, it may be necessary to review their position and lower their expectations if required.
Preparing for Evaluative Mediation
Mandatory mediation has been in place in Ottawa long enough that most litigation lawyers know pretty well how to prepare for a mediation. By and large the same groundwork has to be gone over preparing both for the pre-trial and an evaluative mediation. Nevertheless, there are some differences in how you prepare for an evaluative mediation which result, from the points discussed above. I would suggest the following might be kept in mind when getting ready for an evaluative mediation.
1. It is evident that lawyers should know in advance what form of mediation they are preparing for. To date this has generally not happened because there has not been much debate about different methods of conducting mediations – today’s discussion being the first of its kind that I have seen in the Ottawa area. Mediators engaged in our program started out with the interest-based model. But I believe many are adopting a more substantive process. On the other hand, if your case involves a number of non substantive impediments to settlement, ie, psychological or structural factors or interdependent interests, (parties in ongoing relationships) interest based mediation may be more satisfactory and the lawyers may wish to seek out mediators who practice this style of mediation. The point I make, however, is that knowing the type of mediation and the mediator’s approach is important to determine how best to prepare for the session.
2. Evaluative mediation underlines the importance of not just preparing how to attack the opponent’s case, but also knowing how to defend your party’s side of the story. In preparing for a mediation, with me at least, I would recommend the lawyers conduct their own negative analysis of their cases and be ready to make strong counter arguments to any challenge to the client’s case. This strategy will best protect the BATNA in both the eyes of your client and the mediator, besides providing ammunition that can be used when the mediator attempts to conduct a negative evaluation of your opponent’s case.
3. For similar reasons, I would strongly recommend that you ensure that the mediation brief contains all the information upon which you are proposing to rely in establishing your client’s case. Besides serving to bolster your case, you may also supply the mediator with information he or she can use when in caucus with the opponent. I would recommend including summaries of witnesses’ evidence, experts’ reports, articles, etc. For the same reason, in presenting your client’s case, I recommend doing as complete and thorough job in setting out both the facts and the supporting arguments. In terms of form, I think the best presentations are those that are made by appealing to the opposing party and its lawyer but with an eye on the role that the mediator can play in settlement.
4. I would recommend lawyers give careful consideration to the underlying premises to support their BATNA. On the one hand, I strongly recommend that parties work out a BATNA before entering into a negotiation or mediation. However, as discussed above, no BATNA should be written in stone and it is an important aspect of managing client expectations that the client understands that bottom lines are founded on circumstances which can change or be interpreted differently as the litigation goes forward. BATNAs should be the result of a thorough risk analysis carried out on your client’s case with a clear understanding of which factors are the most important in affecting the outcome of the BATNA.
5. I also recommend that the lawyer analyse the client’s lawsuit to determine whether the case is one where a thorough fact review may likely occur at the mediation, ie, a case under the Simplified Rules. If you are not ready to participate in this process, your client’s case will be disadvantaged.
6. Do not underestimate the potential for settling a case. You should basically prepare for every mediation with a belief that the case will settle and that if you are not fully prepared you may not be in a position to direct the process or help your client achieve the optimum settlement. I would submit that lawyers should never be surprised at the end of a mediation that the matter settled. I understand that 98% of actions commenced in Ottawa are resolved without the necessity of going to trial. This is a strong indication of the underlying desire of most clients to settle cases and get on with their lives. Lawyers will never be in trouble if they prepare themselves with the attitude that the case is going to settle at the mediation meaning that this step is the most important procedure in the case to help the client attain what it is after.
To date there has been little debate over the styles or approaches that can be adopted by the mediator in a mandatory mediation. While the Rules are premised on a facilitator model, I believe there is a growing consensus that process assistance is not enough for a large number of cases that do not, but could settle at mediation. This is not to state that process-based intervention is ineffective in litigation-based mediations. The point I make is that an evaluative approach is becoming more common in litigation-based mediations. I suspect it will be shown with time that in many cases an evaluative approach better serves the goals of our mediation program, which is to weed out as early, and as cheaply as possible, those cases that should not go to trial.
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