THE ADVOCATE 885
VOL. 79 PART 6 NOVEMBER 2021
The client should be prepared to take an active role at the mediation
It is helpful to prepare your client to answer questions, or to talk about their
case. If there are people involved in decision making at the mediation who
were not involved in the dispute, it will often be their first opportunity to
meet and assess your client. If there are gaps in the evidence, your client
may be called upon to fill them in.
As well, use the decision maker you have at the mediation as a resource
at the mediation to explain why certain positions are being taken. In my
experience, it is often more compelling to hear from the decision maker, as
opposed to the lawyer.
The representative of the client in attendance at the mediation should have the
necessary authority to settle the case
If the representative of your client present at the mediation needs the
authority of someone else to settle the case, make sure you know that
before the mediation starts, and how to deal with it. If the issue is problematic,
involve the mediator before the mediation. You should also involve the
mediator if you think that there may be authority issues with the other
party or parties to the mediation.
In summary, the three main things that I would encourage counsel to do to
advocate effectively at a mediation and resolve the case are as follows:
1. develop a mediation strategy, and specifically consider the needs
that might underlie a party’s stated position;
2. draft the mediation brief with a view to encouraging discussion
regarding risk; and
3. counsel the client to remain open and flexible as to how the dispute
might be resolved.
The Vancouver International Arbitration Centre (“VanIAC”) maintains a
panel of qualified mediators. It is able to assist the parties to a dispute in
selecting a mediator or appointing a mediator if the parties cannot agree on
one. Visit <vaniac.org> for further information, including VanIAC’s Mediation
Rules of Procedure.
1. Stuart Diamond, Getting More: How You Can Negotiate
to Succeed in Work and Life (Three Rivers Press,
2012) at 19.
2. BC Reg 4/2001.