n this month's article, I will describe the role of your lawyer, the  conduct of a mediation, and finalizing a settlement.

Prepare for mediation well in advance of the session, but not too far in advance or too close to the date of the mediation, so any necessary information can still be obtained. A preparation session will serve many purposes:

  • To understand and review the process, the mediator’s role, your role and the role of the other parties
  • To review the strengths and weaknesses of your case and the opposing party
  • To review settlement options; brainstorm; discuss your needs and interests and rank them in order of importance, and to understand the needs and interests of the other party
  • Consider your next best alternatives to a negotiated agreement
  • Consider your worse alternatives to a negotiated agreement

The role of lawyers in a mediation is very different to the role of counsel in court. Lawyers should be less aggressive at a mediation then they would be in other litigation-related hearings. Generally, mediation is not a process over which counsel has control. Counsel can play an invaluable part on observing the communications between the parties; watching for themes and emotional needs on the other side; asses the other party’s strengths and weaknesses as witnesses and obtain vital information. Particularly for corporate parties, there are a number of different roles which may be filled by one or more people. There should be a lead dealmaker with proper authority to settle; a lead spokesperson; a factual resource person with knowledge of the events in question and, possibly, an individual who is prepared to be the "bad guy" – someone prepared to respond to accusations with humility.










By Alan Schapiro


Typically, the plaintiff will be asked to give the first opening statement. Be prepared to suspend and adversarial approach. Emphasize your needs, interests and why matters are important. Be flexible and accommodating, without giving up ground. Some other helpful tips include:

  • Ask questions of the other side to elicit useful information
  • Convey an interest in settlement, while remaining willing to litigate
  • Tailor your communication to the opposing party and not to the mediator or their lawyer

Decide ahead of time whether you will be making the first offer. Often, the party who makes the first offer gets the raw end of the deal. Making the first offer may be too generous and it may establish your acceptable minimum. On the other hand an unreasonably low offer may offend and could lead the other side to belie that you are not serious about settling. The advantage of making the first offer, particularly if it is a credible one, is that it will set a positive tone for future negotiating.

Assessing the party’s negotiating style in a mediation is extremely important. If their style is cooperative, the party is more likely to negotiate effectively. If they are aggressive, which is characterized by taking rigid positions like "take it or leave it," unreasonable opening demands, or bullying behavior, then cooperative behavior will not be effective. Every option you create will be seized by the other side as a condition for settlement. You will either have to counter with extremely aggressive behavior or end the mediation. Always bear in mind your best alternative to a negotiated settlement and know when to end the process if it appears that you will be falling below that option.


Discuss and agree on how to implement the settlement. Identify the process, the timetable, the reporting and the verification process. Identify and apply objective criteria such as applicable laws, standards, accepted business practices, priorities and implement these in finalizing the settlement. Of you reach an agreement in principal, draft a written settlement agreement at the mediation. Keep in mind the following common forms of settlement agreement clauses:

  • Payment schedules
  • Deadlines for implementation
  • Acceleration of payment if a single payment is missed
  • Releases
  • Avoid the premature dismissal of the action until it is clear that the settlement is being implemented
  • Compliance incentives
  • Procedure to be used to resolve re-maining outstanding issues in dispute.

The opportunity to mediate presents itself at least a few times during the course of litigation. If you are alive to the possibilities of mediation and understand how it can be used effectively, you will be able to maximize your gains and settle what you can cost-effectively, quickly and without the necessity to submit to protracted litigation.




This article appeared in the October 1998 edition of Canadian Property Management Magazine (BC Edition)

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