Mediation Toolkit for Beginners

At McCague Borlack, students are given a checklist of experiences and tasks that the firm wants us to experience. One item on the list is to attend a mediation.

"We are only six weeks into our summer term and I have already had the chance to attend two mediations!"

The mediations I attended could not have been more different. The simple fact is that one case was ready to reach an agreement, and the other one was not. While the outcomes of these mediations were different, I found myself reaching for similar things. Based on my (limited) experience, here is my mediation toolkit for beginners:

File Material

At the beginning of the mediations I attended, each party had the opportunity to make opening statements. Having all of the file material available allowed the lawyer to check particular facts raised by the opposing party.

Laptop/Pen and Paper

The mediator’s role is to keep parties talking. To do this, they go between parties delivering messages and offers. The offers are often broken down, line by line, and are delivered quickly by the mediator. A laptop or pen and paper are important to take down these numbers and keep track of offers throughout the day.

Calculator/Excel

As a law student, and now a summer student, I spend a lot of time reading, writing and analyzing problems. During mediation, I had to access a skill I have not practiced regularly since high school – math! As mentioned above, offers are often broken down. The addition is simple enough, but once you bring in the post-judgment interest rate, a calculator is necessary. The lawyers I shadowed had sophisticated Excel spreadsheets that did the calculations automatically. I will be sure to include something similar in my intermediate toolkit!


Patience

One of the mediations I attended was scheduled for 10 am to 4 pm. While it did not take the whole day, there was a considerable amount of time waiting for the mediator to return from speaking with the other party. This time is a great opportunity to speak with the lawyer about their strategy and to get to know your client.

An Appetite

When I arrived at my first mediation, I was pleasantly surprised by all of the food! I quickly forgot about the lunch I had packed as I eyed the sandwiches, lasagna, salads, and a mountain of Timbits.

I am looking forward to checking the next item off the experience list and building my next toolkit!

by Sarah D.

Weird Projects, Field Trips & RAAAPTORS!

After orientation, an email that came through for me on the file assignment list was ambiguously phrased,  “Who in Toronto wants to take on a weird project?” A thrill of both anticipation and slight apprehension ran through me. This sounded like a challenge, which only made me more excited as I collected my pen and notebook to discuss the file with the assigning partner. We chatted about the matter, which turned out to be a research assignment pertaining to an overseas John Doe who had fraudulently stolen a client’s funds through online hacking.

I was asked to determine the best way to move forward in order to recover our client’s losses and was given wide latitude in ascertaining what that might be.

This freely given trust and responsibility were exactly why I had admired MB’s student program. Excited, I sped back to my desk. Time to research!

Week 2: Spontaneous Field Trips

My first field trip was a contested motion in Superior Court, where I watched the negotiation process unfold between two lawyers outside the courtroom in a bid to save their client's costs by settling the matter early. In law school, we learn more theoretical and black letter law concepts, and therefore it was interesting to see how the law operates on an everyday, practical basis. Before this, I didn’t realize how much of a legal outcome relies on pragmatic and measured negotiation prior to actually speaking in front of a judge.

Then later an email came in off the list requesting that a student partakes in an examination for discovery. So I spent the next two days observing a multi-faceted examination where various parties were questioned by many different sets of counsel. I was responsible for transcribing all of the evidence and returned to the office with a deepened understanding of effective examination strategies. I also got to prepare undertakings charts based on my notes for all the parties who were examined! In-depth involvement in files such as this allows you to feel like, even as a summer student, you are doing practical and valuable work on a file.

Summer Students 2019: Jennifer and Chelsea 

Week 3: Accomplishments

On Monday, the whole firm celebrated the recent Raptor’s NBA Championship win! We had been told the week before to wear our favourite Raptor’s regalia to work, and a firm-wide email was sent out encouraging everyone to go see the parade. There was also a viewing party complete with pizza in one of our boardrooms, and everyone at the firm came together to enjoy the wave of excitement that was sweeping Canada.

The energy in the city carried me through the rest of the day, and I speedily started preparing motion materials for my previous John Doe assignment. The assigning Partner had wholeheartedly agreed with my recommendations for further action and told me to prepare a novel motion that our firm had never fully brought before. Again, the same familiar frisson of excitement tinged with a sliver of self-doubt; Can I do this? Did I really get my research right earlier?

The answers to the above questions are yes! I have just submitted my draft motion materials, and am looking forward to moving the file along further and keeping up with its future developments. Being involved with strategic decisions and taking charge of the next steps for the forward movement of a file is a heady feeling for a student who has just finished her second year of law school. I am excited for more opportunities to expand my capabilities in the future with MB!

by Chelsea D.

What to expect during orientation week

I was both excited and extremely nervous to begin my first day of work at McCague Borlack.

The night before, the usual first day of school jitters began to start:

"I hope the other students are nice! Should I pack a lunch?
Is it okay if I wear the same outfit as I wore at my interview?"

On Monday morning at 9 a.m., all the students were greeted by our student director, Ashley. Thanks to her smiling face and approachable manner, our nerves began to slowly fade away. At McCague Borlack, the students receive a full week of comprehensive training. Each day consisted of seminars on legal topics and learning skills that would teach us “how to McCague” such as docketing and binding court materials.

Monday

On Monday, we all sat in the boardroom which would become our home for the week. Ashley took time to introduce the summer program and outlined what we could expect for the summer. At lunch, we went on a food court tour of the Toronto building with the Articling students (I guess I didn’t need to pack a lunch after all!). The day ended with learning some legal office skills and a firm tour.

Tuesday

Having had our first day under our belt, on Tuesday morning we all came in a little more relaxed. The morning was spent learning how to docket. This was a task that seemed a little overwhelming at first but turned out to be a very user-friendly system. We also had our first legal seminars covering topics such as subrogation, and how to run a small claims court file. We were lucky to have partners come and give us tips and tricks for dealing with files of this nature.

Wednesday morning was picture day! Having spent Tuesday evening practising their best Zoolander poses, all the students came in looking glamorous and ready for their pictures. In the afternoon we had a representative from Westlaw visit. She taught us tips and tricks for making the most of Westlaw resources. I learned a lot, I had no idea that you could highlight and save information straight into a PDF from Westlaw!

Thursday morning we received a tour of the Great Library at Osgoode Hall. The library facilitates legal research to lawyers, by providing an extensive collection of books and online resources. The library itself is beautiful, walking around we felt as though we might actually be at Hogwarts. Not only does the building have an amazing legal history, but the building is also an active courthouse. It was very exciting to see seasoned lawyers roaming the halls in their robes, hopefully foreshadowing our future as litigators.

Friday - Our last day of training had finally arrived! We had received so much information over the week and yet felt that we still had so much more to learn. We had a visit from Howard Borlack, who officially welcomed us to the firm. He told us stories of his journey from law student to named partner, highlighting that the learning doesn’t stop once you leave the law school classrooms. He also encouraged us from now on to think of McCague Borlack as our firm and to take pride that this is the first step of our legal career.

Orientation week was a great way to settle into the firm. We all cannot wait to get our first assignment once the list starts moving on Monday.

by Olivia

Time-stamped: A true day in the life...

Time to start my workday!

Wait! Don’t worry, I choose to be here this early. One of the biggest advantages of working at McCague Borlack is the work-day flexibility. It goes without saying that students must be present during business hours, but otherwise, our time is not micromanaged by lawyers. As long as we meet our deadlines, we make our own schedule. Some students come in around 9:00 a.m., but I personally prefer early mornings: my head is clearer, the office is quieter, and the line at Starbucks is shorter.

I start my day by checking my “to-do” list. Most students make the habit of recording their assignments in an excel sheet in order to keep track of their deadlines. I skim columns for any limitation periods and client guidelines: there’s a motion that needs to be confirmed by 2:00 p.m. tomorrow and four days left to submit an initial report. These will need to get done first.

Ideally, I’d sit at my desk and focus on one assignment at a time; however, seldom do my days go uninterrupted. Usually, I stop my work for one of two reasons: receipt of a new assignment or correspondence from an external source (such as a client or opposing counsel). I hear my email chime go off, and it’s a conflict check… with an interesting legal problem! In addition to list and walk-in assignments, McCague Borlack encourages its students to pursue their curiosity. I quickly reply to the lawyer to express interest in the file and then go back to my initial report.

The mail has arrived, and I notice that I have a fax from plaintiff’s counsel indicating that they maintain their refusals, and agreed to my undertakings motion for any time in the last two weeks of June. This means I can finally requisition my motion date and make final amendments to the motion record. There is a lot of work involved, but thankfully we have a wonderful support system that helps the students save time (and the clients save money). Without skipping a beat, our assistant requisitions the date and our very own office services prints and binds the motion record.

Today we have a Lunch and Learn seminar. McCague Borlack likes to feed educate their lawyers by providing these information sessions with a nice lunch. I’ve noticed that topics tend to provide updates in the law or provide tidbits for practice. Today’s workshop is about calculating costs and interest, which is a tricky (yet very important) part when drafting pleadings.

Upon returning to my desk, I notice there is an email with a list assignment marked “STATEMENT OF DEFENCE - URGENT”. It’s not my turn on the rotation system, but the student to whom this is assigned does not have the capacity to draft one right this minute. This student isn’t worried though, as she knows the other students have her back.

Although we are all eager to take the assignment, we decide to settle this matter by comparing our “student bucket lists”. Yes, you read right. Although McCague Borlack affords its students a lot of freedom, there is a student coordinator that checks in to ensure we’ve had the best-rounded experience, and this involves keeping track of our work history. According to the bucket list, two students have not yet drafted a statement of defence. This assignment will go to one of them.

My phone rings and it’s a lawyer for whom I drafted a statement of claim. She wants to know if I’m interested in assembling the Affidavit of Documents for the examination of the co-defendant next month. This is a perfect example of how lawyers tend to keep students involved in a file in a significant manner. I inform the lawyer that I’m happy to assist and add the Affidavit of Documents to my to-do list.

At this time, you see people slowly heading for home as the office begins to clear. I don’t have anything pressing at the moment, but I know that I’m attending mediation the following day. As such, I choose to stay a bit longer knowing that I might be out of the office on a field trip. MB Lawyers are big on visual learning and encourage us to go out of the office. In fact, this tendency is so well known, I’ve heard other lawyers comment on it.

It’s the end of the day. Most students are packing up (if they haven’t already left yet). I throw some papers in the shredder, log off my computer, and head home.

by Émilie-Anne P.

These are a Few of Our Favorite Things: MB Articling Class of 2019 Highlights

During articling, you’re constantly learning. In law school, the majority of our education focused on theory, but as students-at-law, we are learning about the practice of law and the application of the theory we studied. As our articles get closer to ending, I have been reflecting on how much I’ve learned and also how much I still don’t know.

In order to highlight the variety of experiences our articling class has been privy to, I’ve polled my fellow students to ask them which of their many experiences so far stood out the most. This is what they said:

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Andrew

Favourite assignment:

• My attendance at a small claims settlement conference.

Why it was my favourite:

• It was a great way to strengthen my negotiation and oral advocacy skills.

What I learned:

• It is important to understand the strengths and weaknesses of your client’s case and to anticipate the arguments of opposing counsel. I also learned that negotiating is an art form and that negotiation styles develop over time with practice.

What I’ll do differently next time:

• Use time more efficiently by trying to narrow the issues with counsel beforehand.

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Émilie-Anne

Favourite assignment:

• It’s hard to pick a “favourite” assignment since I’ve received so much good work during my articles. A really cool assignment that comes to mind is a settlement conference I was asked to attend. The pleadings had closed, and I was asked to help negotiate the settlement. Though I sought approval from a lawyer before taking each step, I was given the freedom to develop the negotiation strategy on my own.

Why it was my favourite:

• The best part was that I could assess damages using any method I wanted, including calling stores across Ontario to ask for their pricing. I was the main contact point with both the client and opposing counsel, which meant I continuously re-evaluated both positions to find a middle ground. The matter eventually settled last year.

What I learned:

• What made this file interesting was that it was very emotionally charged. In addition to strengthening my advocacy skills, this assignment taught me how to interact with parties in sensitive situations. When the opposing party’s position is personal rather than financial, it’s a lot harder to elicit a compromise.

What I’ll do differently next time:

• If I could do it all again, I would rehearse my submissions another a dozen more times. I remember my voice trembling as I was speaking to the deputy judge. Nerves make you seem less prepared and less confident in your position (which couldn’t be farther from the truth).

 

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 Jessica

Favourite assignment:

• Student support on a summary judgement motion. This included conducting research and helping draft the Brief of Authorities and Cost Outline

Why it was my favourite:

• It was super rewarding seeing my research being used in legal documents and discussed in court. I had heard so much about summary judgement motions in law school, so it was such a great experience finally seeing one in action. I also loved seeing the different oral advocacy styles of counsel.

What I learned:

• Real-life litigation is even more exciting than a moot court. Good advocates can have completely different styles.

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Karolina

Favourite assignment:

• I have a few favourites, and one of them is something I’m doing now: helping a lawyer prepare for trial.

Why it was my favourite:

• I helped draft the pre-trial memo for this file, so when it began heading to trial, I was excited to get a glimpse into the process. Putting together the trial brief is a satisfying process on its own, but I enjoy preparing for the performative aspects even more. I mooted competitively in law school, both at the trial and appellate levels. I’ve also taken improv classes for fun. Taking the first crack at drafting the opening/closing and examinations is not only fun, but it’s also incredibly instructive on persuasive advocacy and evidence.

What I learned:

• While we’re still in the midst of things, I’ve already learned to expect nothing but prepare for everything. While I tried to organize my workload around this assignment, I didn’t realize preparing for trial would be this all-encompassing. I have a number of other large projects, including a small claims trial that will take place shortly after this trial. Time-sensitive assignments can and do come up when you least expect them. I will be moving everything forward with these two trials at the forefront. A trial is the “final act” of a file, and as they say, ‘the show must go on’.

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Lee

Favourite assignment:

• Drafting the initial opinion for a subrogated fire loss claim.

Why it was my favourite:

• It’s interesting, challenging, and I learned a lot in the process. Initial opinions to clients are an important step in the litigation process, even though they exist outside of the court process. Initial opinions are the first opportunity we have to demonstrate an early mastery of the facts leading to our client’s loss and chart a way forward for its resolution.

What I learned:

• I found the assignment challenging because I have a long way to go before I master litigation strategy! Luckily, I was able to review some sample plans for similar cases and work closely with the partner in developing the opinion.

What I’ll do differently next time:

• If I knew then what I know now, I would definitely consult more litigation plans, looking at the different strategies we’ve used as a firm to be successful in winning cases like this. I was very happy to draft and revise the entire opinion, discussing it with an Associate and a Partner along the way. Ultimately I got to see a final product that was predominantly my work going to our client, and I learned a ton along the way.

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Priya

Favourite assignment:

• My favourite assignments so far have been drafting mediation briefs.

Why it was my favourite:

•  Drafting a mediation brief gave me the opportunity to exercise written advocacy.

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 Theo

Favourite assignment:

• My favourite assignment during articling was being given my own small claims file.

Why it was my favourite:

• It was my favourite for a number of reasons, not the least of which was that it was completely nerve-wracking. In most other tasks I am assigned, I am not the head point of contact on the file. Having that responsibility was a challenge and an opportunity that I welcomed and only made me better. All of my actions carried a different weight compared to other assignments because it was my name that was being attached to it. It also provided a great foundation from which to build off of and I felt it really took me to another level in terms of my confidence and aptitude.

What I learned:

• Aside from the bigger events like preparing for a settlement conference, I also learned about the finer details such as communicating with the client and other parties. I learned how to manage expectations and confidently give my opinion on the status of the matter. These behind-the-scenes communications are every bit as essential, and they’re not something I was always privy to. Additionally, I learned when it comes to pleadings to ensure that you are thorough and cover all possible angles of your case and leave no stone left unturned.

What I’ll do differently next time:

• The next time I am given my own file I will be better equipped to hit the ground running. I wouldn’t necessarily do things very differently as new cases also come with fresh issues and nuances, but I would definitely have fewer questions regarding the process and how to navigate it. 

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Yousef

Favourite assignment:

• My favourite assignment was to bring an application under the Repair and Storage Liens Act for the return of an article that was improperly seized.

Why it was my favourite:

• It was my favourite assignment because at the time I was unfamiliar with the legislation and it was a chance to explore an area of law that I hadn’t yet experienced.

What I learned:

• I had the opportunity to communicate back and forth with the client and the insured throughout the completion of the application which was a great learning experience.

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Conclusion

Even writing this blog post was a learning experience. What I learned from interviewing my fellow students is that we have all had diverse and varied experiences. I’ve been lucky enough to try some of the “favourite assignments” listed above, but some I still haven’t. There’s still a lot to look forward to. The great thing about this profession is I don’t think we’ll ever stop learning.

by Jessica M.