The difference between going to mediation and winning at mediation

By LegalMatters Staff • Lawyers who properly prepare for mediation increase their chance for success, says Toronto-area employment lawyer and mediator Stuart Rudner.

Rudner, founder and principal at Rudner Law who has more than two decades of practice and several years of work as a mediator, says “there’s a big difference between going to mediation and winning at mediation.”

Lawyers must invest the time to strongly present their case to give the mediator a clear understanding of the issues and the evidence, he says.

“Help me to help you help your clients,” Rudner tells LegalMattersCanada.ca. “I find that not all lawyers are using mediation effectively. Many just make the assumption there will be a resolution.

“There’s a big difference between settling a case and getting a good settlement for your client.”

He says he finds counsel often prepare “a brief without really thinking about the case.”

‘Understand the dynamics’

“Too many lawyers take mediation far too lightly. When you have a trial you spend weeks preparing and reviewing the evidence,” Rudner says “Whereas if you have a mediation coming up, a lot of counsel will just copy and paste text from the pleadings into the briefs and attach all of the Schedule A productions.”

“As a result, they never take the time to really assess the strengths and weaknesses of their argument or understand how to put that best case forward,” he says. “It’s important to understand the dynamics. The mediator is coming into this fresh and all they are going to know when they arrive at the hearing is what they have read in the briefs.”

Rudner says in many instances the statements he receives do not accurately reflect the reality of the proceeding.

“It is amazing how often I will review the briefs, form a preliminary view of the issues and the strengths and weaknesses of each side’s position, and then arrive at the hearing and realize I am mediating a completely different case,” he says. “Rather than focusing on the key issues, they’ve thrown in everything but the kitchen sink, making it impossible to discern the strength of their case.”

Lawyers cannot “just go through the motions” and hope for a favourable settlement, he says.

Convince the mediator

Rudner explains mediation “is similar to a trial because ultimately you want the mediator to see the merit in your case and be equipped to be able to convince the other side that you have a strong argument – you are trying to convince the mediator of the strength of your case.”

“Spoon feed your mediator. Educate them on the key points and how to convey the strength of your case,” he says. “They are going to put forward your argument in the other room and if they can do that credibly and convincingly, then they will be able to get you a better result.

“I want a brief which clearly gives an overview of the case, sets out the real issues and also gives me a sense of what the evidence will show. I want the key three or four documents, not 300 or 400, so it is easy to digest the case.”

Rudner says it’s also important to prepare the client for what lies ahead so they aren’t “caught like a deer in the headlights.” 

“It’s remarkable how often I see a case where the lawyer has never met the client until the day of the hearing,” he says. “What counsel really need to do is explain the process and give a realistic assessment.

“They should also alert them to issues that are likely to arise. For example, advise a plaintiff in a wrongful dismissal that if they get a settlement, they may have to repay any Employment Insurance benefits they received.”

Managing expectations is important so “a plaintiff is not coming in looking for $1 million when really it’s a $50,000 case, Rudner says.

Properly prepare documents

Properly preparing the documents and having a well-informed client will also help make mediation run smoothly and could ultimately save time and money, he says.

“There’s a reason mediations go longer than planned and that’s because the brief doesn’t really tell the mediator what they need to know,” Rudner says. “We often book half-day mediations and then spend most of the session just understanding what the real issues are because they were not spelled out ahead of the hearing.”

He says talking to the mediator ahead of time can also be helpful if the client is not accepting the opinion or advice of counsel.

“I need to know if the unreasonable position being taken is driven by counsel or by a client who refuses to listen,” Rudner says. “I don’t want to embarrass counsel, so I am reluctant to contradict them in front of the client, but if counsel lets me know that they need my help in getting their client to be reasonable, I can do that.

“If I know the lawyer and client are on a different page, I can help change the dynamic.”

Make key players available

He says it’s also essential to have the key players in the hearing to approve potential settlements.

Too often, the people in the room have limited authority and someone offsite must be reached to authorize a potential agreement, Rudner says.

“In many cases, the mediator is excluded from that phone call, and the person on the other end of the line has no idea why we made the recommendation we did, so they just say no,” he says, noting that mediation is a process, and clients need to be part of that before they will be ready to accept a solution.

“If decision-makers are not at the table, then let the mediator speak with them rather than creating a barrier to a settlement,” he says.

In the end, knowledge is power in any successful mediation hearing, Rudner says.

“You want to make it as easy as possible for your mediator to help you,” he says. “This is your chance to win and to get the best possible settlement.”