Thursday, 9 October 2014

Mediation and the “Good Faith” Game Changer

I have admittedly underestimated the potential that mediation holds in the litigation process.

The importance of mediation and above all the co-operative approach to mediation is impressed upon us tirelessly throughout law school. As a student, however, it’s easy to question the practicality of this, feeling that the approach taken in law school may be a bit too idealistic. After all how realistic could those in-class role play mediations be when it comes to real cases?

As an articling student who is just a month and half into my articles, I (like others before me) have admittedly underestimated the potential that mediation holds in the litigation process. I have attended mediations before and seen their possible benefits as one of many steps in the litigation process. Yet, I realized their true potential this month when I accompanied an associate to a mediation.

I was informed prior to this mediation that there may not be as much excitement as I was hoping for and that this mediation was unlikely to be successful given that the parties weren’t making much progress in reaching a middle ground. However, as a student presented with the opportunity to attend a mediation (and let’s be honest, an excursion out of the office), this did little to deter me.

Throughout preparation for the mediation, I observed that regardless of what was, in the lawyer’s mind, the likely outcome of the mediation, he prepared diligently and above all impressed upon me the need to mediate in good faith (no matter how unlikely settlement may seem). The day started with strong opening statements from both counsel confirming the long road ahead before a settlement was likely to be reached. However, the lawyer I was accompanying made it a point to assure all parties that we were there to mediate in good faith with the hopes of reaching a settlement – even in the face of such a daunting and seemingly impossible task. This small gesture of honest and open good faith was in my mind not only a surprising response to the harsh tone of the opposing parties but had the power to change the tone of the entire mediation. To everyone’s surprise, a few hours later the impossible seemed to have happened – the parties reached a settlement!

Yin Yang" by digitalart - freedigitalphotos.net
Even before this experience, it would seem like a no-brainer for many that mediation is of course an important tool and step in litigation. After all, most cases settle before trial and clients are often happier with this approach as trial is a lengthy and expensive process. However, what I really earned from this experience is the importance of never underestimating how a show of good faith can be a game changer in any mediation, and can turn the possibility of settlement into a reality.

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