Michael Silver Mediator & Arbitrator

Mediation and Negotiation: Preface

A critic cannot be fair in the ordinary sense of the word. It is only about things that do not interest one that one can give a really unbiased opinion, which is no doubt the reason why an unbiased opinion is always absolutely valueless. [1]

Why write this book? The objective reason is as follows: alternative dispute resolution (ADR) and specifically mediation are fast becoming integrated into traditional litigation practice and into the resolving of disputes in society generally. Apart from mandatory government programs and Law Society rules requiring solicitor-client discussion of ADR, it is a process about which lawyers, especially litigators, now have to know something.

It would be as ridiculous to say to a client or to another lawyer, “I don’t like to mediate” or “I don’t believe in ADR” as it would to advertise that you do not believe in cross-examination, do not like to do discoveries, or do not feel comfortable with legal research!

The skills involved in a good representation of a client have come to include negotiation and mediation skills, which are as much a part of the litigator’s toolbox as anything a litigator may normally be called upon to do. Learning and practicing these skills is, therefore, important to the well-trained litigator.

But an appreciation of negotiation and mediation skills is also useful to the layperson, who will have to be directly involved in the process if he or she is embroiled in a dispute. Whether he or she works to resolve a dispute on his or her own or with the aid of a lawyer, the nuts and bolts and ins and outs of it all are highly relevant and important to achieving a good outcome.

This book is, therefore, meant to serve as a teaching tool to both lawyer and layperson alike. It is hoped that you will gain a greater understanding of and respect for mediation and the role it can play in resolving civil disputes.

Because mediation is the most widely used and talked about means of alternative dispute resolution, because it is so flexible and effective in dealing with the greatest variety of disputes, and because within its boundaries it can encompass so many different techniques, the terms “alternative” and “ADR” used throughout this book shall refer specifically to mediation. These terms may, therefore, also be used interchangeably.

Furthermore, the discussions in this book will primarily focus on the civil dispute (i.e. one in which there is a legal cause of action, though not necessarily one in which litigation has commenced). Apart from being the type of dispute with which most of us will be embroiled [2], it is one area of disputation in which mediation is now being made mandatory through government-sponsored and enacted rules requiring parties to a lawsuit to have a mediation at an early stage in the litigation. In a very real sense, the world of civil litigation is now leading the way in ADR by institutionalizing mediation and demonstrating its effectiveness at resolving the most varied and complex of society’s disputes – those in which the conduct is actionable and which form the subject of litigation before the courts.

The subjective reason for writing this book, however, was no less relevant to me. Indeed, it culminates something of a personal journey. Once upon a time, I was a litigator at a downtown Toronto firm. My practice was a mixed bag of commercial, personal injury, medical malpractice, environmental and administrative litigation. The people at our firm worked hard and were very proud of their work. Being a litigator was in essence my entire life. It kept me very busy and was all-consuming. In law school, not a word about ADR had ever been uttered. Settlement was not a part of our legal education, and, though settlement did occur in practice, achieving them was not a part of our firm culture and certainly not something we as associates received any training to accomplish.

Notwithstanding, as I took more mediation/negotiation courses, I came to agree with the statement attributed to Mahatma Gandhi, himself a lawyer, that “the best thing a lawyer can do for his clients is to get them to settle”. [3]

As the years went on, I became increasingly disenchanted with what I was doing with my career. And since litigating was not just my dream career, but my life, I was growing disenchanted with my whole life’s direction. I began to notice that though we billed a lot of money (more than even I on an associate’s salary could afford), we often did not get good results for the client, even worse sometimes we did not ever get results of any kind at all . The cases just kept dragging on for years. They would get mired in interlocutory motions or never-ending discoveries, or they would sometimes essentially be shelved and put in abeyance (due to a client not paying promptly, the “dog’s breakfast” nature of the file, or inaction on the part of the plaintiff).

However, as with many things in life, a general dissatisfaction was insufficient to provoke a response; it took a number of seminal events to get me to adjust my thinking. Some of these involved some bizarre and unfair adjudication. Others illustrated the inefficiencies of the litigation process. I will mention just three examples though there were quite a few more. Anyone who has litigated is likely to have examples of their own; thus it is hoped that the litigator reader can relate to these career changing episodes.

One of these cases proved to be a quintessential lesson on discoveries. We had been retained to do the trial, but the discoveries (two weeks’ worth) had been done by another firm. The case involved a husband and wife together going to a solicitor, and the husband providing instructions for his will to leave everything to the wife. When he died, it turned out that he had left much of his estate to others; consequently, the wife sued the lawyer for breach of fiduciary duty allegedly owed to her. The lawyer, however, claimed he owed her no duty because he was only the husband’s solicitor, not hers. A day before the trial, I was asked to find anything of relevance in the columinous discovery transcripts (over one foot high). I had no idea what to look for and thought I might as well begin at the beginning. At page 2 (of thousands) and about one minute into the first examination, the lawyer was asked, “Are you Ms._____’s friend?” Most likely annoyed by her lawsuit and feeling a certain amount of personal betrayal, he replied, “No, no, I was not her friend; I was more like her lawyer!” The rest of the transcript was superfluous – the key answer was right there on page 2! If he was her lawyer, then he owed her the fiduciary duty. The rest of the discoveries were just window dressing. The case was tried for a few days after which settlement discussions finally took place. After hundreds of thousands of dollars in fees, the dispute was settled with an apology from the lawyer, one dollar and the return of a desk. [4]

In a dispute over an agreement of purchase and sale for industrial condominium units, the opposing lawyer seemingly became obsessed against our client and our firm. The case was at best a dispute over $25,000, but that amount was spent on fees many times over, since we were in motions court almost weekly. The opposing lawyer lost most of the motions, and as a result, a number of cost and other orders against his client and himself personally were registered. However, none of these was paid. With each new motion, more orders would accumulate. Outrageous things happened. The lawyer proceeded to read my own notes – while they were upside down – during a discovery, resulting in my cancelling the discovery. He infuriated a judge by implying that the judge had an off-the-record substantive discussion with me in his absence. Finally, a judge on one of the motions, upon hearing the litany of proceedings, orders and alleged unbecoming conduct, took it upon himself to refer this lawyer to the Law Society. When I finally met the other parties for the first time at a cross-examination (they were, by this time, represented by different counsel), I initiated a settlement discussion that successfully concluded later that day.

Finally, in a major and novel case involving constitutional and administrative law arguments, which took months at trial, the judge who rendered the decision had ignored most of our arguments and even some of our witnesses. The decision bore little resemblance to the record and to the law submitted, was internally inconsistent and was brief in its treatment of the important issues. A respected law professor who later reviewed the decision thought that if the trial had been a law school course, and the reasons for judgement were given as an answer on an examination, the judge would have failed.

Event such as these convinced me that a strict reliance on adjudication was flawed. Each of these clients paid hundreds of thousands of dollars in legal fees. None of them had bad cases – in fact, their cases were strong. And contrary to what the reader maybe thinking right now, our legal services were competent. There were real needs behind the bringing of these cases, and, of course, these needs and interests were never addressed. How could they be? The workings of the system did not facilitate that. Or, at least, they did not do so until far too late in the process.

And so it was with a certain sense of personal missions that I left legal practice and took a job as one of the two full-time mediators (we were called Dispute Resolution Officers) and with the Toronto ADR Centre, which was the first pilot project (between the Ministry of the Attorney General and the Ontario Court of Justice) to test and evaluate the efficacy of mandatory mediation of civil disputes. Below is a quote from one of the promotional communiques:

The ADR Centre is the court system’s response to the public’s desire “to have conflicts resolved, but not necessarily tried.” It will provide institutional supports to lawyers who hitherto have been left on their own to negotiate settlements. The ADR Centre is a free of charge, court provided facilitation of the crucial settlement efforts of the profession.

The new ADR Centre is a tremendous opportunity for litigants and counsel, being the vehicle by which the Ontario Court will help the parties to achieve a tailor-made solution which is more likely to satisfy the parties’ essential interests. The ADR process occurs at a stage in the proceeding before much time and money have been expended. The Centre will facilitate what statistics show is likely to happen anyway, namely a settlement of the action, but at a time, for a cost and in a manner which is likely to be more efficient and satisfying.

ADR is not just another hurdle to be overcome in the litigation process. It is the court sponsored mechanism by which the already present hurdles in the litigation process can be avoided through early settlement.

The ADR Centre is in effect a “New Justice Product”, allowing lawyers to offer their clients an important and accessible service from an adjunct of the Ontario Court. In this era of cutbacks, it is a remarkable step towards a multi-door courthouse in which counsel and litigants can choose the door appropriate for their case and in which a trial (and the litigation leading up to trial) is but one of the available options for dispute resolution.

In short, it is hoped that the ADR Centre will prove itself an invaluable part of a well managed court system. [5]“

The Toronto ADR Centre proved that mediation could work and could do so on a mandatory basis [6]. In fact, the mandatory nature of the process was a distinct advantage. Parties did not feel that they had anything to lose by suggesting a settlement discussion. Through mediating nearly a thousand cases of all descriptions at the Centre, I realized that ADR made real sense and did some wonderful things to help people deal with their pressing problems.

Sometimes it is as important to undo what has been done as it was to have intially done it. Because of ADR’s popularity and current mandating in some jurisdictions (specifically mediation), some parts of the old adversarial system may currently be in the process of realignment. I make no apologies for this: we may very well be dismantling that which was carefully constructed over the last few centuries. But as a new millennium has begun, perhaps the time is ripe for such a sea change. The maxim, “if it ain’t broke, don’t fix it” does not apply. The traditional litigious adversary system is broken in some important respects, and it does need to be fixed, ADR is the needed repair.

It finally became clear to me that bringing people together and helping them to resolve problems was a noble task to which to devote one’s career. There is so much conflict, so much strife in society. If we all make a little bit of a contribution towards making things better for each other, then maybe we will survive this tumultuous period in our history.

As people, we are different, think differently, emote differently and have different goals and interests. We also live in a world where there are fixed or limited resources. That is fundamentally why there Is conflict amongst the human race. However, the following statement by John F. Kennedy is probably the best articulation of what we do have in common – and why we need to find way to get along:

For in the final analysis, our most basic common link is that we all inhabit this small planet. We all breathe the same air. We all cherish our children’s future. And we are all mortal. [7]“

While ADR is not a panacea for all of society’s ills, it is a useful tool to help resolve even the most difficult of disputes more efficiently and with greater regard to the needs of the disputants. That is why it is worth knowing something about.

Michael P. Silver

April 2001

Footnotes:

1. Oscar Wilde, The Critic as Artist, Part II
2. The chances are that most people will be involved as a party in a litigious dispute during the course of their lives. It may be a family law dispute (e.g. marriage breakdown), commercial dispute (e.g. breach of contract, failure to honour a debt, a shareholder or partnership dispute), a personal injury case (e.g. motor vehicle collision), perhaps a wrongful dismissal from employment (layoff or firing), estates case (contestations under a will) or even professional negligence (i.e. actions against professionals such as doctors, lawyers, contractors, engineers, etc.).
3. G Ohsawa, Gandhi: The Eternal Youth, trans. K.G. Burns (Oroville, Calif.: George Ohsawa Macrobiotic Foundation, 1986) at 111.
4. These items were provided in part because they mattered to the wife, but also because the assets (various businesses and shareholdings) not left to the wife had plummeted in value since the husband’s death.
5. This communique was written by the author as part of the material given to counsel and to the parties upon a case’s random selection for a mediation within the program.
6. During the evaluation period (the first 10 months of 1995), about half the cases that were referred to the Centre at random settled, with a further 17 per cent settling on their own before the ADR session. The mean time to achieve a settlement occuring at the Centre was 124-129 days. The mean time for case disposition for non-mediated cases in the General Division, including case managed cases, is at least twice as long and sometimes much longer. Satisfaction levels were very high. Over 95 per cent of lawyers and clients said that they would use the Centre again, and over 96 per cent of lawyers found the mediations to be fair. More than 70 per cent of lawyers and 75 per cent of parties believed that their case would have settled at a higher cost if it had not been referred to the Centre; in fact 14 per cent of lawyers estimated these savings to the client to be over $100,000. Even with cases that did not settle, 71.5 per cent of lawyers agreed that the mediation had, nonetheless, provided an important settlement opportunity. There was no significant dissatisfaction among lawyers or litigants with mandatory referral to ADR in the pilot project, nor with the timing of the referral after the close of pleadings and before discoveries. The evaluation also showed that settlement was successful over a wider range of case types, with varying complexities and dollar values. Over half of lawyers and parties cited the skill of the mediator as the key reason settlement was reached. The evaluators, therefore, recommended mandatory referral of cases at the close of pleadings without any institutional screening (J. Macfarlane, “Court-Based Mediation for Civil Cases: An Evaluation of the Ontario Court (General Division) ADR Centre”, Faculty of Law, University of Windsor, November 1995; and the Executive Summary of the Evaluation of the ADR Centre, prepared by Christine Hart).
7. J.F. Kennedy, commencement address (American University, Washington, D.C., 10 June 1963).