Getting the most from mediation.

Portions of the following information have been obtained from the Ontario Attorney General's Office.

To get the maximum benefit from mediation it is important to think about the case realistically and creatively. Before the mediation, parties who are represented should work with their lawyers to prepare for a session that will be cooperative and productive. Parties might consider these questions in preparing for mediation:

• What is the best result each party can hope for in the lawsuit and what is the worst result that could happen?
• What is each party trying to accomplish by the lawsuit?
• What is really important to each party?
• What are the main concerns of the other parties and how can they be addressed?
• Are there any solutions to the dispute that can reconcile the interests of all parties?
• Are there any limits on each party's ability to settle?
• What will happen if the case does not settle at mediation?
• What is the lawyer's role in mediation?

The lawyer's role may include:

• Advising the client about and ensuring compliance with the Mandatory Mediation Program.
• Advising the client about the selection of a mediator.
• Preparing and submitting the Statement of Issues to the mediator.
• Preparing the client for effective participation in the mediation session.
• Providing legal and strategic advice during the mediation process.
• Participating in the mediation process in good faith.
• Protecting the client's legal interests in connection with any agreement reached.

How do lawyers prepare their clients for mediation?

Lawyers are aware that the parties are encouraged to participate directly and actively in mediation. To prepare a party for mediation, the lawyer will:

• Describe the mediation process and what will happen at the session.
• Explain what is expected of the client.
• Remind the client that the objective of the mediation is not to "win", but to reach a satisfactory resolution.
• Discuss mediation strategies.
• Ensure that the client or client's representative has authority to settle.
• Discuss the costs, risks and benefits of not reaching a settlement.
• Ensure that the client is familiar with the facts and issues of the case.
• Examine the strengths and weaknesses of each party's case, both on the facts and on the law.
• Explore the client's position, goals and interests.
• Attempt to understand what the interests of the other parties might be.
• Advise the client on how to best put forward their interests.
• Advise the client about any confidential information which should not be disclosed.
• Work with the client to prepare an opening statement.
• Where the case settles completely or partially, the lawyer will review any agreement reached to ensure that it meets the client's interests and is legally binding.
• Where the case does not settle, the lawyer will analyze the discussions that took place during the mediation and advise the client concerning the next steps.
• Comply with any undertakings or agreements made at the mediation.
• Consider settlement options that were explored, but not adopted, at the session.

Remember, The Emerald Group can provide practice and training for both lawyers and clients before you go to a mediation. Everyone agrees that a practice session takes the stress out of the actual mediation or arbitration and very often helps to point out the strengths and weaknesses of your case.

Please feel free to contact us if you have any questions about getting the most from mediation or you need more information on practice sessions. adr@egroup1.com