Process
Most personal injury mediations in Ontario follow a similar process.
Prior to the mediation
The parties have completed Examinations for Discovery and exchanged documents and all other relevant information as part of the Mediation Brief. They have selected the mediator. Lawyers have described the process to their clients. The lawyers have also discussed the purpose, potential outcomes and advantages of mediation. It is vital that the lawyer give her client sufficient information about the mediation, so her client is mentally and emotionally ready to engage and have a positive attitude towards mediation.
Preparing Plaintiffs for Mediation | Frank Gomberg
The mediation process over one day
Almost all mediations take place over one day and follow this outline:
- JOINT SESSION: All parties meet together. The mediator explains the purpose of the day, how the mediation will progress and the disadvantages and risks of taking the dispute to trial.
Each lawyer then outlines the strengths of his case in front of all lawyers and all clients. This is a critical “piece” of the mediation. What most clients don’t know is that it is illegal for any of the lawyers to at any time contact the litigant on the other side. The mediation is the only opportunity ever for lawyer A to speak directly to client B, and to tell B why lawyer A and his client believe A’s case to be a winner and B’s case a loser. Lawyer B similarly gets to tell client A why lawyer B and her client believe their case to be a winner, and A’s case a loser. Neither side is going to persuade the other side. However, this aspect of the mediation is critical. Each client gets a different perspective from the opposite lawyer. Each client gets to assess the other lawyer’s presentation. It is rare for any client to emerge from an opening session as convinced of a trial vistory as they were the night prior to the mediation. - EARLY BREAKOUT SESSIONS: The mediator gives each side an opportunity to expand on its case, while asking questions and probing for weaknesses and any scope for movement. Every side needs to believe that the mediator fully understands and respects its position and interests.
- LATER BREAKOUT SESSIONS: Assuming an active style, the mediator will focus on the weaknesses of each party’s case and the relative strength of its opponent(s). He will also remind them of the general disadvantages of going to trial and any specific risks a trial could present (such as evidence that damages credibility or could lead to prosecution). The mediator’s job here is to get all sides moving towards a settlement, if that is “in the cards”.
- REACHING AGREEMENT: Because of active listening in the caucus sessions, the mediator will have an idea of the range of possible outcomes each party might accept and will begin “reality testing” these with the parties. The mediator may present ideas and settlement numbers as his own ideas – without specifically tying a party to any of the numbers.
Misconceptions about going to trial | Frank Gomberg
Gomberg Mediation Solutions Inc.
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