"Mediation and Other Stuff"
Dispute Resolution Services
Guímís gach beannacht oraibh, ár gcairde,
beannachtaí na Féile Pádraig.
I wish you, my friends, every blessing this
Saint Patrick's Day.
Welcome to the first
edition of "Mediation and Other Stuff", my monthly newsletter about alternative
dispute resolution from an Ontario perspective.
Each month the newsletter
will have two short articles. One will
be on a general topic and the second focused on a specific situation or case
study. Further information on the topics
will be available by you contacting me.
I plan to cover topics
such as, "whether to mediate or not", "who should suggest mediation", "choosing
your mediator", do you need a specialist mediator for your dispute", "what to
expect in mediation", "confidentiality in mediation" and specific examples or
case studies of different types of disputes including condominium, commercial,
employment, technology and other which lend themselves to resolution by
mediation or other alternative dispute resolution processes.
If you have a topic that you would like covered, please contact me.
"Why do I need a mediator
to help me settle my case?"
This is a question
mediators used to hear a lot. As
mediation has become a more accepted part of the litigation process in Ontario,
this question is less frequently asked, but still remains a live issue.
Although there are many
ways to answer this question, the most useful process-oriented response is that
mediation allows counsel to make the shift between "litigation advocate" to
"settlement advocate", while still preserving the relationship with their
Your client hires you
with the expectation that you will win the case. However in most cases, a time comes when it is
appropriate to make some compromise to settle the dispute. To settle the dispute the lawyer must shift
from a zealous advocate to problem-solver.
It is sometimes difficult for your client to appreciate the necessity of
your shift in emphasis. By using a
mediator, you remain the advocate for the client and the client's case, and the
mediator can be the advocate for settlement.
Much like mediation,
there are stages to litigation. When a
client brings a new case (either plaintiff or defence) to his lawyer,
typically, the first thing the lawyer does before accepting representation is
conduct a detailed analysis of the strengths and weaknesses of the case. The evaluation usually includes an analysis of
the law and facts, the availability and reliability of witnesses, costs and
time likely to be expended on the case and the impact of litigation on both the
lawyer's practice and on the client's life and business.
After the case starts, lawyers
often forget their initial evaluation and jump headfirst into the battle,
litigating the case as zealous advocates of their client's position. By time mediation comes around whether under
the Rules of Civil Procedure or the consent of the parties, both sides are
firmly set in their respective positions and often, although they want to settle,
they do not know how to remove themselves from the case they have so painstakingly
In order for the client
to settle, the lawyer must become an advocate for settlement. Part of the job of the mediator is to help the
lawyers and the parties see beyond the legal case they have built. For a dispute to settle, a negotiated
settlement must meet the legitimate interests and needs of the parties to the
The good news for lawyers
and clients is that in 80% of cases mediated, settlement is achieved on the day
of mediation or shortly afterwards.
For a more complete version of this article,
please contact me at firstname.lastname@example.org
Case of the Month - Mediation
Mediation is not law, but
there are important cases about legal issues in mediation. Many of these cases come from the US and UK
but a relatively recent case is from Ontario.
There is a newly reported
case from the Divisional Court in Ontario dealing with the issue of
settlement/mediator privilege. The case,
Liquor Control Board of Ontario v. Magnotta Winery Corporation was heard in
June 2009 and has just been reported in the Ontario Reports at (2010), 97 O.R.
The case is one of judicial
review of a decision of the Ontario Information and Privacy Commissioner. It stands for the proposition that materials
prepared for mediation of court proceedings are exempt from disclosure by both
common law settlement privilege and under the Freedom of Information and
Protection of Privacy Act. Although now
under appeal to the Court of Appeal, it is a very good overview of the common
law privilege and its application to mediation.
This case is important and should be read by lawyers and mediators alike.
If you have any questions or comments, please contact me.
Colm Brannigan, M.A., LL.B., LL.M. (ADR), C.Med., IMI Cert., Med., ADRIO Cert. Arb.
Mediate Better Solutions