ADR - A Second Look

Paul Iacono

In the spring of 1999 after attending a Defense Research Institute seminar on alternate dispute resolution, I returned home to the City of Toronto, Canada, in a state of surprise because I readily recognized a tremendous amount of resistance on the part of our American colleagues to the use of ADR techniques to resolve law suits. At the conclusion of the IADC spring meeting in La Quinta, I have discovered that not much has changed. After a two-year hiatus, I am still left with the impression that our American colleagues are being dragged, kicking and screaming, to the mediation table. The opposite is happening here in the Province of Ontario. In the City of Toronto, we are just about to complete a two-year pilot project on the usefulness of early mediation in civil law suits. The essence of this program has been that one in every four law suits is randomly selected for a mediation. The parties are compelled to attend; it is mandatory. The statistics have demonstrated that 40% of all of these cases have resolved. We are of the view that our Attorney General is going to make the pilot project permanent and will apply it to all civil law suits in due course.

In the Province of Ontario, it was really the insurance Bar that led the way to ADR, particularly when in 1990 legislative changes to the auto policy made mediation an important part of the whole dispute resolution process. Since that time, however, and although there was resistance amongst the rest of the trial bar, that resistance has been broken down. Every member of our bar is now quite familiar with the ADR process and its positive benefits.

My perception is that the main concern of trial lawyers is that mediation is bad for business. This is not so. Getting involved in mediation will help your practice grow. It will provide another dimension or framework in which you can exercise your skills of persuasion. You will have satisfied clients because to them, the best file is a closed file.

Mediation-appropriate files turn over quickly and you will be able to take on a higher volume of cases. Your clients will come to recognize that you have their best interest at heart and will reward you with more business. In our jurisdiction, some lawyers have developed a specialty, acting as counsel at mediations, and of course acting as mediators.

Simply because a lawyer chooses to use the ADR process, does not mean that he or she has abandoned the traditional adversarial style of dispute resolution. On the contrary, probably the most effective presentations at mediation are by those lawyers who are just as comfortable in the courtroom. This is true mainly for two reasons. Firstly, in order to make peace, you must always be able to wage war. Secondly, good trial lawyers are usually good advocates who are capable of persuading judges and juries that their theory of the case is the correct one. Success at mediation is achieved by enhancing your opponents appreciation of the risk of losing at trial in the event settlement is not realized at mediation. Having said all that, it becomes necessary for me to step back a bit merely to point out that an adversarial style of argument at a mediation, usually does not work. Good counsel recognize that mediation requires a different kind of persuasion. It is still advocacy, but it is not necessarily adversarial. It does require, however, different skill sets. Generally speaking, these attributes are at the fingertips of good trial counsel. They just need to be polished and practised. At the risk of being presumptuous, I would like to express my own theories about what makes an ADR session successful.

THE THREE "P'S" OF ALTERNATE DISPUTE RESOLUTION

1. Preparation Generally Like every activity that involves persuasion, ADR requires thorough preparation. In approaching a civil trial, the lawyer would not go to court without having thought about the examination-in-chief or cross-examination. Counsel will undoubtedly spend a great deal of time preparing these aspects of the case. It is the same with mediation.

(A) Preparation of the Mediation Summary A mediation summary, listing all the issues, and the important arguments should be prepared and this should involve the client. This document is required without exception because it becomes the road map for the mediator, the parties and the process itself. The summary should be no more than two pages and I prefer it in letter form simply because it reads easier. You can use sub-headings to highlight the issues, but you should canvass all the issues. The mediation summary is your first opportunity to persuade opposing counsel, the opposing client and, to a certain extent, the mediator. The main advantage of alternate dispute resolution is that you get to talk directly to the opposing client. How many times as a lawyer have you felt that opposing counsel was not getting your message across to his or her own client? ADR gives you the opportunity to deliver the message yourself.

Although the mediator is really a third party neutral and must not take sides in the process itself, convincing the mediator that your point of view is the more reasonable, can ultimately become quite helpful. This is particularly so in a situation where at some point during the mediation, it is necessary to tell opposing counsel that the position or stance that is being taken is untenable.

(B) Preparing for the ADR Session

Just as counsel prepares a witness for court, the client has to be prepared for the ADR session. This preparation includes not only an explanation of the process and how it takes place, but should also include the client's own participation in the presentation of his or her case. At this stage, the informality of the whole process should be stressed. The client should feel comfortable with what will take place and should feel free to speak. It is not advisable for counsel to suggest to the client that they say nothing during the process. That will only frustrate the “catharsis.”

Having the client make a brief opening statement is useful. This can be prepared in advance and can be kept very brief. Sometimes litigants do tend to take too long in making a statement and this is not good either. It should be controlled by counsel who, at various stages can intervene and politely move the client on to the next point. It is also appropriate for counsel to move the opposing client on to the next point by simply intervening in a courteous manner and perhaps suggesting that he or she might like to tell us about another subject that was mentioned in the mediation summary.

2. Participation

The ADR process should be seen as client oriented, and successful ADR will involve the client to the fullest extent. Remember always, it is the client's law suit, not the lawyers'. The parties are in litigation because one of them feels that he or she has been wronged in some way. The ADR process gives each of the litigants a chance to tell their story and to express how they feel they have been wronged by the particular situation that gives rise to the dispute. All they really want is to "have their day in court" so that their story can be told. The ADR process therefore becomes a "catharsis" for the litigants. In order that it be successful, the client should be involved in every step of the process. After counsel has prepared the mediation summary in draft form, it is a good idea to send it to the client and to ask for suggestions. If the case is particularly complicated, it is desirable to have the client in the office and, working from a draft, prepare the final document. The client's participation at every stage of the process promotes a feeling of “buying into” the settlement decision.

(A) The ADR Session

Successful mediation requires that the lawyer and client attend the session together. This is essential. A mediation without the client will not result in settlement. If counsel cannot attend with their client, they should advise the mediator and opposing counsel. They may still agree to have the session but they must feel assured that the lawyer has full authority to settle. Another alternative is to have the client available by telephone to take instructions. If the client is not there, the catharsis does not take place, and you will not have a happy client. The decision to settle the law suit is the client's decision; it is not the lawyer's decision. Without client participation in the process, the client will never be satisfied with the results of the process. A golden rule of ADR is that if you cannot attend with your client at a particular time, re-arrange so that you can.

3. Patience

The final ingredient in successful mediation is patience. You cannot rush a “catharsis.” The late C.F. McMillan, Q.C. once said that "a law suit is like baking a cake. It has to stay in the oven for a precise amount of time". While the accuracy of that statement to a law suit could be disputed, there is no question that it applies precisely to a mediation. You will not resolve the dispute until the catharsis has taken place. You must explain this fully to your client before the process begins. You must also explain to your client that you cannot predict how long it is going to take. Although any party to a mediation can choose to end the process at any time, it is much better to have an agreement that the mediation end. In addition, and I cannot stress this enough, in multi-party mediations, it is essential that all parties and counsel remain until the entire mediation is ended. Even if counsel or their client see that their role in the mediation is at an end, or if they see their role as being minimal, until final issue is mediated, their presence is important.

In multi-party mediations, once a party has been eliminated from the balance of the issues, those individuals now become neutral because they have no axe to grind in the balance of the issues. In some instances, their evaluation of those remaining issues can be persuasive and determinative.

To attend a mediation with a pre-conceived or pre-established time deadline is fatal. Flexibility is the key to success.

CONCLUSION

The purpose of my comments was to convince lawyers who represent insurers on a regular basis that the ADR process is a wonderful way to resolve files. Insurance companies are historically good negotiators and the ADR opportunity simply represents another chance to negotiate directly with the decision maker in the law suit. It does require different skills of persuasion and I can say without hesitation, it is good for business.