legal words
■■ Provide an honest, direct and
consistent opinion about the merits of
each parties’ claim or defense
■■ Offer creative solutions, particularly
where positions become hardened or
where the settlement is heading for the
proverbial ditch
■■ Push a settlement, but know when to
call it a day
UNDERSTANDING THE
PROCESS
Mediation is a confidential and non-binding
process designed to resolve disputes short
of adjudication with the assistance of an
impartial third party. Mediation provides
a venue for:
■■ Presenting your arguments
■■ Understanding the other side’s case
■■ Being heard
■■ Testing and assessing the merits of
your case and that of the other party
■■ Obtaining the benefit of an impartial
third party’s views of your case
■■ Negotiating a comprehensive, final and
conclusive settlement of the dispute
There are many advantages to mediation,
including:
■■ Speed
■■ Informality
■■ Cost containment
■■ Confidentiality
■■ Reality check
■■ Having a hand in the settlement
Entering mediation with an attitude of,
“I will convince them that they are wrong
and I am right,” will certainly be met with
disappointment and, ultimately, dissatisfaction
with the process. What’s required
is flexibility and a problem solving mindset
that looks past “who is right, and who is
wrong,” and gets to the heart of the dispute.
The process also requires patience, persistence,
broad-shoulders and a capacity
to accept and respond to honest feedback
about the case. It is also important to accept
that mediation is a process that will
meander at its own pace. Rushing or forcing
the process, though tempting, can
prove detrimental to a settlement. Be patient
and trust the mediator.
PREPARING FOR MEDIATION
Mediation requires a strategic mindset.
Everything that is said, shared or disclosed
prior to and during the mediation will frame
the discussion and, ultimately, the settlement.
It is therefore important to gather all
relevant information and documents and
prepare a theory of the case that can be presented
and returned to during mediation.
Questions will be asked of the parties
during the mediation by the mediator and
by the other party, and it is crucial that
these be anticipated by honestly and dispassionately
assessing the strengths and
weaknesses of the case and developing
a theory of the case that is balanced and
stands up to challenge. Reasonable answers
to the hard questions are what will
fuel the mediation and give the mediator
something to say to the other side.
Consider, as well, who should attend
the mediation. It can be fruitless to make a
phone call at the end of a long day of mediation
to someone who has none of the
context of the day’s discussions, but who
has ultimate authority to settle or not. If
the decision maker is not at the mediation,
frequent updates should be provided as
the day progresses so that, when the call is
made, there will be fewer surprises.
The employer should also prepare and
rank a range of acceptable outcomes in advance
of the mediation, but also be ready
to deviate from the plan through creativity
and open mindedness.
CONCLUSION
Mediation makes business sense in most
employment cases, but mediation is not
appropriate in all cases. Where either or
both parties attend the mediation with an
expectation of “hitting a home run,” they
will usually leave disappointed. Mediation,
by definition, requires compromising your
best-case legal position in the hope of
achieving a settlement that is equally dissatisfying
to both parties. Mediation with
the right mediator, the correct mindset
and a willingness to be flexible and creative
can achieve amazing outcomes, even
in cases where settlement was thought to
be impossible. n
Michael P. Fitzgibbon is a founding partner
of Watershed LLP, Management Labour &
Employment Lawyers.
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MEDIATION REQUIRES A STRATEGIC MINDSET.
EVERYTHING THAT IS SAID, SHARED OR
DISCLOSED PRIOR TO AND DURING THE
MEDIATION WILL FRAME THE DISCUSSION
AND, ULTIMATELY, THE SETTLEMENT.
HRPATODAY.CA ❚ MARCH/APRIL 2016 ❚ 17