Author/Source/Copyright: Helen Hall, Practical Law Canada
When it comes to any mediation, preparation is critical for lawyers to ensure a smooth process and the best possible outcome for clients, says Helen Hall, personal injury litigation practice lead at Practical Law Canada.
Hall, a personal injury lawyer, notes that while mediation is mandatory in three jurisdictions in Ontario — Toronto, Essex County (Windsor area) and Ottawa — it is also a very popular means by which to settle a case in areas where it isn’t compulsory.
“Mediation has a very good success rate for settling cases,” she tells AdvocateDaily.com. “So, given the fact that most cases resolve prior to trial, mediation is where a lot of cases get settled these days.”
Hall, a lawyer who has handled hundreds of mediations, has almost an equal number of years representing plaintiffs as she has representing insurers on the defense side. She also worked in-house at an insurance company for a couple of years.
This breadth of experience puts her in a unique position to provide some informed tips that lawyers can keep in mind for the mediation process.
“These tips have applicability for personal injury cases, including motor vehicle accident and slip and fall cases, and have wider application for mediations in general, such as commercial cases and medical malpractice matters,” she says. “These could apply to accident benefits cases which arise out of motor vehicle accidents under the Insurance Act.”
Firstly, Hall says, although it may seem trite to say preparation is important, it’s good to remind lawyers of that.
“A mediation brief has to be prepared ahead of time, but it isn’t always the lawyer who prepares it — sometimes it is a clerk or a junior in the office," she says. "To avoid embarrassing mistakes during the mediation, it’s important to read everything in the file.”
Hall says it’s also important for lawyers to look at the best- and worst-case scenarios for their case.
“You should crunch some numbers to find out what’s the highest number you can get and what’s the low end that you are prepared to take,” she says. “Make sure you know about all of the previous offers. Sometimes lawyers don’t seem to realize there was a previous offer and that has its own issues.”
Hall emphasizes the need for lawyers to prepare their clients in advance of the mediation. She says some lawyers have a tendency not to do this in the days leading up to the mediation because they believe there will be enough down time — as both sides mull over various offers — during the mediation itself and this client prep can wait until the day of the proceeding.
“It may seem obvious, but I have noticed that even on some large and complex cases, the lawyers often meet with the client a half an hour before mediation begins to cram in all of the information,” she says. “It’s very difficult for the client to process this information at that point because clients are generally very nervous on the day of the proceeding.”
Hall says it’s critical to prepare clients ahead of time because it helps them prepare themselves for being in the same room with the 'other side.'
“Injured clients, in particular, have a lot going on,” she says. “They have often lost their jobs and their lives have changed dramatically as a result of their injury. They often feel vulnerable, nervous and upset. The other side may accuse them of lying or of not being as injured as they say. Some of this may be tactical for the defense to intimidate or to showcase a bit for the client, being the insurance representative.
“Your plaintiff, the injured client, has to be prepared to hear all of these unpleasant things that are going to be said.”
Hall says it’s vital that the client is prepared if they have opted to make a statement at the start of the mediation.
“Lawyers shouldn’t simply allow the client to say what they want to say — the statement has to be prepared,” she says. “Though all mediations are without prejudice and so even if a client says something that is very damaging, it cannot be used against him or her subsequently in a trial or other proceeding. But of course if the client does say something damaging, even if it cannot be used, it is now ‘out there’ and it will be used in different ways. You want to guard against that.”
It’s helpful to inform the client about basic procedural issues that they will hear from the various parties during the mediation, as well as how long the process could take.
“By informing them in advance about what will generally happen during the mediation, you will engender a lot of confidence in your client — it’s good for relationship building,” she says. “Helping them prepare themselves is important.”
Hall says it’s critical for lawyers to get clear settlement instructions from their clients.
“Make sure you explain your reasoning and be sure to get the instructions from the client in writing,” she says.
Hall says typically the plaintiff gets the opportunity to make the first offer to settle, but if an offer was exchanged prior to the mediation, the party who received the offer is expected to respond first.
“Otherwise, as a plaintiff, it’s efficient to come to the mediation with an offer ready to go with written instructions from the client," she says.
Hall says it’s helpful for a lawyer to know what their client's bottom line is in terms of the lowest amount for which they are prepared to settle.
“But you don’t necessarily want to get instructions from your client on that at the start of the day,” she says. “You are getting written instructions from the client throughout the day and you should be explaining to your client why you are asking for those instructions.”
Further, Hall says lawyers should tell their client as much as they can about what the settlement will translate into the dollar amount they will receive in their pocket.
“If you tell a client that you are settling for $100,000, the client may think they are getting $100,000, but your client may only be getting $50,000 because by the time the fees and disbursements are factored in, the amount is significantly less. You should always speak to them in terms of what they are going to get in their pocket, not the gross amount of the settlement.”
Hall says it’s helpful to know as much about the opposite side.
“It would be beneficial to know whether an insurance company, for example, doesn’t have an appetite for settling,” she says. “Keep the lines of communication open with your opponent before the mediation. It’s not a bad idea to call them up a couple of weeks before the mediation to discuss aspects of the proceeding. It’s a housekeeping phone call to get a sense of the lay of the land in terms of what they may be prepared to settle at.”
Hall says it’s also important to keep an open mind and to continue negotiating for as long as possible in all cases.
“In a typical mediation, unfortunately, the sides will start the negotiation process far apart — it’s not unusual to be even hundreds of thousands of dollars apart in a large case,” she says. “The mediator will also tell the parties not to start at the extremes of their positions and it’s important to remember that.”
Hall stresses the importance of counsel being civil and courteous throughout the process.
“Even though it’s a big center in Toronto, it’s still a small bar and you don’t want to burn bridges,” she says. “You can protect your client and be a very strong advocate but you don’t have to be disrespectful or rude.”
In brief — Tips for mediation