884 THE ADVOCATE
VOL. 79 PART 6 NOVEMBER 2021
It includes basic information about the case
It is helpful to the mediator to include basic information about the status of
the litigation and the details of any settlement discussions to date.
Preparing Your Client for Mediation
Here are my thoughts about preparing your client for a mediation, based on
my experience as a mediator and as counsel:
The client should understand the brief you have prepared on their behalf
Make sure that your client reads and understands the brief you have prepared
on their behalf. In many cases, they will have insights into the dispute
that you will not.
As well, use your client as a resource when drafting the brief. This is particularly
important in any case where there is important technical evidence
that your client may understand better than you do.
The client should understand the opposing party’s brief
The client should also be provided with, and asked to review, the other
party’s brief. In my view, it is helpful for a party to hear, unvarnished, what
the opposing party says about various issues in the case. This will also avoid
the client hearing about an issue for the first time at the mediation itself.
The client’s expectations need to be realistic and flexible
Before the mediation, the client should be encouraged to remain open to
possibility. I think one of the jobs of counsel and the mediator is to get the
best positions possible out of the parties. It is then up to the client, with
counsel’s assistance, to determine whether they wish to settle the case on
Many things go into determining what is an acceptable outcome to the
case, and the amount of money involved is only one of them. The client will
be open to possibility only if they do not have fixed expectations. Expectations
are resentments waiting to happen, and never more so than at a mediation.
If your client has unrealistic expectations, advise the mediator of this,
and seek their assistance.
There are often a range of options available to satisfy the needs that
underlie a party’s position. This is particularly true in cases where the parties
can resolve a case in ways that a court cannot. Such matters include, for
example, estate litigation, shareholder proceedings, family business disputes
and long-term disability insurance claims. If your client is dead set on
resolving the dispute in a particular way, other options will not be considered,
and an opportunity to resolve the case might be lost.