The vast majority of lawyers and mediators in the field appear to believe that mediation leads to more cases settling faster at a lower cost.1 Mandatory mediation was introduced in Ontario on a test basis on January 4, 1999. In part, based on an independent 23-month evaluation of the pilot project, it became permanent. The results of that evaluation are set out in the Hann Report. It suggests that mandatory mediation results in 40% of cases being completely settled earlier in the litigation process.2 This raises questions about the nature of the cases that are still going to trial.
Who the lawyers are is often the key
There is a better chance of reaching a settlement at mediation when both sides’ lawyers are knowledgeable about the law, prepared for the mediation and have trial experience. These lawyers know, more or less, the real litigation risks to their clients and the most likely outcome at a trial. They use this experience to properly advise their clients and establish realistic expectations. Lawyers who feed clients’ fantasies about the exaggerated strength of their cases are less likely to settle and make settlement more difficult to achieve. Avoiding this pitfall is easier said than done, however, as any lawyer with experience will tell you.
Financial Strength of each side
Going to trial costs money. Lots of it. But, if that is not an issue for a party then he/she is going to have less motivation to settle. That means that if a lawyer takes on the file on a contingency basis, their clients, who will only pay their lawyer once the claim is resolved (in their favour), are often less likely to settle. They simply are not worried about the costs and do not feel any financial pain from the matter continuing in court.
In Estate Litigation, Emotion is the X-factor
Professionals examine the law, assess the evidence and determine the likelihood of success at trial. They then weigh the litigation risk to determine the merit of proceeding to trial as opposed to accepting proposals for settlement. Litigants sometimes ignore that advice because of the history involved. I have been involved in mediations where parties were seeking to redress wrongs from their childhood that had nothing to do with the matters in issue in the litigation. Further, the clients sometimes do not care that they lack corroborative evidence for a claim or position, which makes proving their narrative difficult. Sometimes clients also will not care that the law does not support their vision of fairness. Sometimes they just want to fight over who mom loved best. Or they want to punish the rogue in the room next door who cheated the deceased and has to be held accountable. For mediation to result in settlement, either the mediator or the lawyer has to inspire trust in the client that settlement is a better alternative to resolve the dispute.
The adversaries were watching two different videos
Sometimes the same facts lead to different narratives. Settlement requires both parties to abandon those narratives and approach matters from a business perspective. Take this common scenario. One child moves in with the sick parent. The parent dies and that child applies to the court seeking a disproportionate share of the estate. From that child’s point of view, his/her parent promised them this money because that child gave up everything to care for the parent. The child feels that his mom would have had to pay a stranger to perform those tasks in any event so why should they not get that money? To the other children, the applicant has been mooching off of mom for decades. Settlement requires both sides to look at the numbers and not their narrative.
Generosity of Spirit or lack thereof
I was once involved in a mediation where the adversary in the other room despised my clients. Regardless of the strong prospects my clients had for success at trial, the adverse party would rather spend their money fighting as opposed to giving my clients one “undeserved” penny. Sometimes a client’s goals are rooted in their view of redressing past wrongs and seeking to punish the wrongdoer. Decisions are looked at through those lenses. When faced with family members who genuinely despise one another I cannot help but remember the difference in my late mother’s family. There was no litigation or fighting over a dispute, rather there was a recognition of duty and love of family. My mother and her sisters survived Auschwitz. Her late great uncle and aunt wrestled with the government to bring them into Canada. They sponsored my mother and her sisters, took them into their home and treated these strangers like their own children. My mother’s cousins shared their rooms, clothes, and friends. There was a generosity of spirit that inspired them. Family came before comfort or money. Circumstances motivated my mother’s family to act with a generosity of spirit and nobility. Sometimes success can come about by motivating people to access that nobility of spirit and that sense of responsibility to family. And that’s what happened in the above example. Settlement was consummated when the adverse party accepted that my clients’ share of the inheritance would go to my clients’ children as opposed to my clients.
Mediation does not automatically result in settlement. There are many hurdles to overcome. But, in my view the key to having the best prospects to settle are these:
1. Retain the right lawyer
The right lawyer is someone with expertise in the field who is not afraid to go to trial but who will give their clients a realistic assessment of their case. That includes the risk of going to trial against a capable advocate.
2. Choose the right mediator
Sometimes a mediator who has the respect of the lawyers can knock heads and inspire flexibility. Sometimes the empathy a mediator may engender will persuade a party to compromise. Tax issues can also be a thorn in the side of getting a settlement and a knowledgeable mediator can point to innovative solutions.
3. Understand the goals of the clients
For the client who is seeking to redress a wrong, the desire for justice may only be satisfied by going to trial. Settlement prospects may hinge on a recognition by the client that trial may not fulfill that goal. Or possibly, there are more important goals.
I was once involved in a file where a rogue unduly influenced a vulnerable elderly testator to disinherit my client. The case involved many innocent parties who were not involved in the disinheritance scheme, but were nonetheless dragged into the litigation. The business solution involved the innocent parties each foregoing a part of their inheritance, providing monetary compensation to my client for the inheritance he lost and allowing the rogue to keep what she stole. My client initially refused to settle for any price because he found it repugnant that the “evil” person in the room next door would get away with it. My client had to weigh doing the “right thing” over the exorbitant costs of going to trial. Even if he won, it would have been a pyrrhic victory. By refusing an offer to settle and not doing better at trial, my client risked having to pay the legal costs for all the other parties. The matter settled when the client realized,upon reflection, that “justice” was just one of his goals. He also wanted to protect his family and not bankrupt himself. Sometimes settlement will hinge on the lawyer and mediator reminding the litigants of the big picture.3
– Mandatory Mediation in Ontario: Taking Stock After 20 Years, by Jennifer L. Egsgard
– Mandatory Mediation – A Binding Success by De Vries Litigation
– The Impact of Mediation on the Culture of Disputing in Canada: Law Schools, Lawyers and Laws (2013) by Catherine Morris
– Mediation Process by Charles B. Ticker ↵
- See Page 2 of the Hahn Report. Hann, Robert G.; Baar, Carl; Axon, Lee; Binnie, Susan; and Zemans, Frederick H, “Evaluation of the Ontario Mediation Program (Rule 24.1) Final Report: The First 23 Months” (2001). Books. 115. ↵
- See Greg Sidlofsky’s blog Rule 49 Offers: No such thing as a near miss ↵