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
- 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
- Preparing the client for effective participation in the
- Providing legal and strategic advice during the mediation
- 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
- 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
- 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
- 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
- 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
- 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. firstname.lastname@example.org