Taking ‘open approach’ can put mediation on the right track

By Tony Poland, LegalMatters Staff • Success in mediation comes down to using your mediator as your ally, says Toronto-area employment lawyer and mediator Stuart Rudner.

“That means being open with me about your case and desired outcome, and giving me the ammunition needed to advance your case,” says Rudner, founder and principal at Rudner Law. “There are many lawyers I work with regularly who understand that. They are able to represent their clients more effectively by taking an open approach, which can get a better result for their clients.”

Rudner tells LegalMattersCanada.ca he has come across other lawyers “who clearly have a distrust of the process.”

“They will not tell me anything more than they feel is necessary,” he says. “That is when finding a settlement can become more difficult. Sometimes it is because they may not know me, and I realize I must earn their trust over the course of the mediation. But I believe some lawyers have been trained to not say anything more than they have to the mediator. So they dictate offer after offer without giving me a sense of their desired outcome. Of course, that makes my job much more difficult and often means that their clients either don’t get as good a settlement or end up stuck litigating a matter that should have settled.”

A simple phone conversation prior to mediation can go a long way, Rudner says.

‘I am happy to have a pre-mediation call’

“I am happy to have a pre-mediation call, not only to talk about logistics but also to discuss any issues or concerns,” he says. If the client is being difficult and refuses to accept their lawyer’s advice on a certain point, then let me know and I will back the lawyer up. If I am not sure whether the lawyer subscribes to a weak argument, I don’t know how hard I should push the point because I don’t want to make them look bad. 

“But if I am told that the client refuses to accept the lawyer’s advice on the point, I can take a different approach,” Rudner adds. “I can then help the lawyer convince their client that the argument they are advancing may be unwise or unsound.”

He says a pre-mediation call should not be a “deep dive into all the issues of the case.”

“But there are things I should know about,” Rudner explains. “Having an understanding of what to expect makes life so much easier. We are more likely to reach a deal that everyone can live with. Getting a sense of what the lawyer knows and what their client is willing to accept from the start allows me to work toward that, as opposed to just having me blindly make offers without a clear goal.”

“Be candid about the weak points in your case,” he adds. “It hurts your credibility if you make six arguments and three make no sense because I am then more inclined to question everything. Don’t be afraid to admit if some of the points you intend to make are not as strong as others. At least then I know what I should be focusing on.”

Be ready to explain the case’s strong points

In addition to acknowledging weak points, counsel should be sure to clearly explain their strong points, Rudner says. 

“Spoon-feed me,’ he says, “so that I can easily understand your position and explain it to the other side. Remember that I am your advocate in the other room.”

Rudner also encourages counsel and clients to listen to their mediator.

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“I have been practising law for 24 years and meditating for many of them. I hear what the other side is saying and I am able to read body language and read between the lines,” he says. “I can generally get a pretty good sense of what is needed to settle a case. I can manoeuvre the discussions to that overlap where both parties will be willing to strike a deal if those involved are open with me.”

It is also important to remember that mediation is advocacy, and preparation always pays off, Rudner says. 

“I find people do not prepare for mediation as they do for trials, which is unfortunate because there are very few trials. Mediation is likely going to be as close as you get to your day in court.”

He says one of the complaints about video mediation is the loss of the “hallway discussions” but it doesn’t have to be that way. 

Informal discussion can still take place in Zoom meetings

“During an in-person session, we can meet in the hallway,” says Rudner. “Sometimes people lament the loss of those informal discussions, but they are easily recreated. If we are doing a Zoom meeting, it is a simple matter of going to a virtual room to have a chat. It can be extremely helpful. I always explain to a party that it is nothing personal and they have not done anything wrong – there is just something I want to discuss so I can better understand the dynamics of the case. Counsel can ask to speak to me privately, or we can set up a discussion between counsel, with or without me present. All of this is easy to do, so there is no reason to feel blocked from having those informal conversations.

“I often engage in separate discussions with counsel via text throughout the mediation, in order to keep things moving forward,” he adds. “That can be very helpful. The bottom line is that there is no shortage of ways that we can communicate, so those informal in-person discussions are easily replaced.”

Being forthright is essential, Rudner says.

The other thing that can impede mediation is not having all the decision-makers at the table, Rudner says.

‘They will not get the benefit of my insights’

“Some people like to maintain control and believe they can do that by keeping people separated. However, if the person who has the final say is only available by telephone, I may not get the opportunity to speak with them,” he says. “They will not get the benefit of my insights and it is far less likely they are going to understand the logic behind my reasoning and my recommended resolution. Simply telling them to pay a dollar amount is not very compelling when they don’t understand why. Mediation is more effective when I am able to speak directly to the decision-maker.

It is also important to keep an open mind during mediation, Rudner says.

“Some lawyers and their clients come in and declare they have decided on their bottom line,” he says. “But they have really wasted an opportunity. If you are working with a mediator who is a subject matter expert, you should take advantage of their knowledge and their expertise. 

“I will review the case, talk to the parties and dig to find out as much as I can. I will then offer my opinions on what is likely to happen if they go to trial, as well as how we can avoid that and meet their objectives” Rudner adds. “My goal is to help everyone find a resolution that makes sense to them. I do that by assessing the case and listening to both sides. The vast majority of my mediations settle, and that is because I am good at understanding what will resonate with each party and helping them find a solution to their dispute.” 

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