THE ADVOCATE 881
VOL. 79 PART 6 NOVEMBER 2021
A VIEW FROM
THE CENTRE
By Mark Tweedy, C. Med., C. Arb.*
MEDIATION ADVOCACY
A mediation frequently takes place once litigation has been commenced. It
is perhaps for this reason that counsel usually advocate at a mediation in
the same way that they might if they were appearing before a court or tribunal.
In my opinion, mediation calls for a different form of advocacy.
When counsel are appearing before a judge or tribunal, they are usually
trying to persuade the trier of fact that the positions they are advancing on
behalf of their client are correct, or that the positions being advanced by the
other party are wrong. In my experience, cases seldom settle at a mediation
because one party convinces the other that they are correct, or one party
acknowledges that they are wrong. More often, cases settle because one
party demonstrates to the other party the risks they face in proceeding further
with the litigation.
In my view, counsel should adjust their approach at mediation accordingly.
This includes, in particular, when developing a mediation strategy,
drafting the mediation brief and preparing the client for the mediation. I
will deal with each of these matters in turn.
Developing a Mediation Strategy
Mediations benefit from the use of a strategy. A mediation strategy should
focus on both process and content. Process is how we mediate, and content
is what we mediate. Lawyers tend to be better at dealing with content than
they are at dealing with process. This is likely because of their training.
Skilled counsel will consider both process and content when determining
the strategy that they will employ at the mediation.
Process includes:
* Mark Tweedy is a mediator, arbitrator and adjudicator who is based in Vancouver and works throughout Canada.