Preparing for Mediation

Contrary to popular belief, trials don’t happen every day. However, trials are not the only opportunity to flex your litigious muscles. Another forum is mediation. I have been fortunate enough to attend two mediations so far during my articling term and assist in the preparation of two mediation briefs.

In practice, a mediation begins with both sides sitting across from each other at a boardroom table. Counsel for each side is given the opportunity to make opening statements. This is potentially the first and last time a lawyer presents the strengths of their case while highlighting the weaknesses of the other side.

The two sides then move to separate rooms which the mediator
will bounce between carrying messages such as offers or concerns.

One thing I learned in preparing for mediation is the compounding nature of a case. Everything in the practice of law builds off of the previous step. Information from the pleadings informs what will be asked at the examination for discovery while the answers and undertakings given at discovery lay the foundation for potential motions and documentary production, and so on and so forth. Preparing a mediation brief gives you the chance to get to know a file in depth and use what is in there to outline the facts and tackle key points at issue. One of the purposes of mediation, especially in Kitchener where mediation is not mandatory, is to try and settle, therefore, it represents a pivotal point in the progression of a matter.

In season 2 of the television show Ozark, the lawyer character had a clever response when being asked why she couldn’t do a certain task. The main character Marty Byrde says “I’m an accountant, I move money around” and the lawyer responded, “I’m a lawyer, I move words around.” Now, is that all there is to one being a lawyer? Of course not. But at a basic level, when trying to be persuasive and convincing, that is sometimes what you are doing. I relished the opportunity the ‘move words around’ when preparing the mediation brief and further develop my ability to frame arguments, which is a learned skill.

As for advice, what should come as no surprise is that my second mediation brief was much better than my first. That is a recurring theme as an articling student. In a general sense, after every task or assignment you complete, you learn something. You may not even realize it right away but the next time you are assigned that task, you will do it better. Even a 1% improvement makes a massive difference in the long run.

It will seem difficult at first but you have to welcome any challenge and treat it as the learning experience it will eventually be.






To quote Bojack Horseman:

It gets easier.
Every day it gets a little easier
But you gotta do it every day – that’s the hard part.
But it does get easier.

by Theomarcus G.

Through the Looking Glass: The Reality of Working at a Litigation Law Firm

Almost any lawyer or summer law student will tell you that practicing law is very different than studying the law. I developed an interest in advocacy from my experiences in law school – among them, participating in moots and working in a legal clinic – but the truth is that I, like most law students, only had a vague idea of what the litigation process is really like. So, as I finish my fifth week at McCague Borlack, I find myself reflecting on the similarities and differences between theory and practice:

At one of the mediations I attended, I had the pleasure of hearing my research mentioned briefly.

Field Trips

In law school, you spend most of your time either in class or at the library poring over books. But this summer I have had the opportunity to attend examinations for discovery, mediations, motions, and other pre-trial appointments, which has easily been one of the most exciting aspects of being a summer student. Not only do you get a front-row seat to watch brilliant lawyers advocate for their respective clients, you also get to witness different strategies, techniques and styles of the different lawyers you have worked with – all of which is a huge learning opportunity as an aspiring litigator.

At one of the mediations I attended, I had the pleasure of hearing my research mentioned briefly. It was a very small part of the case, but a huge moment for me as a summer student!

The Human Element

In school, it can be easy to detach yourself when reading cases in class - especially when it’s an ancient tort case about ginger beer and a snail. At a law firm, however, it is very engaging to know that the file you are working on will have real-life implications for a number of people. Nowhere has this been more apparent than at my first mediation where I heard our client and the opposing side speak passionately about their positions – something that a law textbook cannot offer.

This “human element” is a motivating factor that has helped all of us summer students do our best work.

Substantive Work

In law school, students focus on theory – but at a law firm, you have the chance to actually create legal documents. This summer has already been a huge learning experience. I could never have imagined that I, as a summer student, would have the opportunity to draft affidavits, pleadings, motions, and other documents that are part of the litigation process. Even more surprising is how much autonomy the firm gives us while working. This, paired with the guidance and feedback provided to the summer students, has allowed us to learn at an astounding pace.

Collegiality

In law school the first year is a real bonding experience – after the blood, sweat, and tears of 1L, it’s hard not to feel close to those who have shared the same experience. Luckily, as a summer student, I’ve experienced the same comradery through the joint excitement, and even uncertainty, that I’ve shared with my fellow summer students.

by Jessica M.

Survey Says...

For this week’s blog, I thought I would switch things up a bit. I thought it would be fun to show you the faces that I have the pleasure of seeing every day.

After devising this survey  >   >   >


I then asked (ok -forced) the MB Students to share a bit more about themselves and about their favourite parts of articling at a civil litigation firm.


I have put together below some of their best (in my humble opinion) answers.




   

	Q2: Settlement conference – It makes me feel like the lawyer, I thought I would be. Q3: The Bancroft Court of Justice - Because of the beautiful countryside drive. Q5: Harvey's– in two words: Original Burger
Q2: Motion all the way Q4: Mediations – You generally get to hear the whole story from the beginning and really get a sense of the issues in the case. Q5: IQ– Quinoa, the superfood.
	Q1: Rule 49 - Offer to Settle - Because why can't everyone just get along? Q3: The Oshawa Court of Justice - Because it reminds me of 'Gringotts Wizarding Bank' (from Harry Potter, for those that don't indulge in wizardry). Q5: Aroma– FREE chocolate, need I say more.
Q1: Rule 37 – Motions! Q3: The Orillia Court of Justice – My first Settlement Conference. Q5: IQ – healthy and delicious!
	Q1: Rule 49 – It promotes a resolution of the issues and "punishes" those who are not willing to cooperate or be an effective lawyer. Q4: Mediations - Another opportunity to resolve the claim and make the client happy. Q5: Chinese noodle soup place at the Sheraton Hotel -when I visit my colleagues in Toronto.
Q2: Settlement Conference - I like the opportunity to meet opposing counsel face to face. Q4: Examinations for Discovery - Network Reporting has great food! Q5: Thai Express – Not exactly "express" but worth the wait!
	Q2: Motions - I think it's a good opportunity to practice oral advocacy and to have to think quickly on your feet. Q4: Mediations - I haven't been to a lot of them and it is interesting to watch different lawyers' negotiation strategies. Q5: Freshii – I collect points on my phone and get free meals.
Q3: The Cobourg Court of Justice - I took the train there at 6:50 am in the middle of a snowstorm! Q4: Mediations - I like to see how different mediators engage both sides. Q5: Sandwich Box is my favourite lunch spot – 'you don't make friends with salad' (-Bart and Homer Simpson) (This is mine :)  Wishing you a Happy Easter & Long Weekend! RS