MEET OUR MEDIATORS:
ERIC GOSSIN: Civil & family law mediator & arbitrator, Vice-Chair of the Ontario Bar Association’s ADR section executive.
MITCHELL ROSE: Chartered Mediator for civil disputes, including employment, commercial, estates & personal injury matters.
RAYMOND STANCER: Mediator, veteran litigator, retired Small Claims Court Deputy Judge. Currently charging roster rates.
SPRING 2016 – MEDIATION NEWSLETTER
clients and newsletter readers
and if we did not ask you yet, or
did not make it this time around,
we promise there will be a
sequel):
\
THE #1 REASON WHY
REASON OVER
PASSION:
A CASE SETTLES AT
MEDIATION --ACCORDING TO YOU
Instead of pontificating about
what we think works and doesn’t
work at mediation, we asked
many of you, our mediation
clients and newsletter readers,
to tell us what you thought what
was “the #1 reason why a
case settles at mediation –
in 20 words or less”. As
mediators, we were prepared to
compromise (somewhat) on the
20 word maximum.
We were overwhelmed by the
quantity and quality of (and, at
times, the humour contained in)
the responses we received.
Thank you!
Here then are the best answers
from
the
many
lawyers,
insurance adjusters, human
resource
managers,
fellow
mediators
and
other
professionals whom we are
honoured to count among our
Many of you wrote passionately
about the power of a cool,
calculated, cost-benefit analysis
as the #1 reason for settlement:
According to Daniel Pugen
with the labour and employment
group at Torkin Manes LLP,
“simply put, the reason is that
the costs of moving forward
often
dwarf
(sometimes
significantly) the delta between
the parties.”
Sharon Silbert, family lawyer
and mediator in St. Catharines
told us that “the participants
have had enough of uncertainty
and conflict, and are ready to
settle things so they can move
on.”
Reason as the reason for
settlement was also endorsed by
Jonquille Pak of Whitten &
Lublin, Employment Lawyers:
“People are inherently risk
averse. Most cases are not clear
cut. A guaranteed outcome at
mediation often outweighs the
chance of a better outcome in
court.”
Cédric Lamarche of Singh,
Lamarche LLP, Workplace
Advocates, noted that “the client
puts on business lenses, parks
all emotions at the door and
takes a hard look at the benefits
of an early settlement.”
Jay Josefo, counsel with
Ricketts Harris LLP, added a
new dimension: “The parties,
with a strong mediator’s help,
consider a ‘cost-benefit’ analysis,
removing
emotion
from
consideration as much as
possible.”
A STRONG
MEDIATOR:
The last quote segues into
another prime reason for
settlement: The idea of a “strong”
or “evaluative” mediator.
According to Alan Freedman,
labour lawyer at Hicks Morley,
“A sound cost-benefit analysis”
is the reason cases settle. “That
THIS NEWSLETTER IS NOT INTENDED AS LEGAL ADVICE.
Stancer Gossin Rose LLP / ADR@SGR
1210 Sheppard Avenue East, Suite 310● Toronto, Ontario M2K 1E3 ● 416-224-1996 ● www.sgrllp.com
MEET OUR MEDIATORS:
ERIC GOSSIN: Civil & family law mediator & arbitrator, Vice-Chair of the Ontario Bar Association’s ADR section executive.
MITCHELL ROSE: Chartered Mediator for civil disputes, including employment, commercial, estates & personal injury matters.
RAYMOND STANCER: Mediator, veteran litigator, retired Small Claims Court Deputy Judge. Currently charging roster rates.
and how well the mediator
understands the concept of
torque.”
Jonathan Rosenstein, civil
litigator, wrote that the #1
reason why a case settles at
mediation is that “hearing it
from the mediator allows both
sides to settle on reasonable
terms without losing face.”
Continuing on the same theme,
Stephanie Pope of Persaud
Employment Law added that
“when each side understands a
case’s strengths and weaknesses,
that case will settle. The
mediator helps get them there.”
“Parties realize their money is
better spent on productive tasks
than fighting a battle” added
Daniel Chodos, employment
lawyer with Whitten and
Lublin. “Sometimes it takes a
sobering third party to realize
that.”
This may explain why strong
mediators often drink lots of
coffee on the job.
THE CHANCE TO BE
HEARD:
Many of you wrote about the
importance of the party having a
day in “court” without having to
actually go to court as a reason
for settlement.
“The #1 reason a case settles at
mediation is because both sides
want to find a compromise to
put the situation behind then
and move on as quickly as
possible,” says Méline Van
Slyke, Director of Human
Resources at CBRE Limited.
Sam Sasso, litigator (and app
creator) with Ricketts Harris
LLP, advocates for mediation
because “the client has control of
the result – settle and have
certainty – and has the chance
to be heard.” We’re listening.
Put another way “from the
pessimist’s chair,” family lawyer
Sina Hariri of Hariri Law
observed “the parties have
become
emotionally
or
financially exhausted and just
want it to end.”
Oscar
Strawczynski,
a
commercial
litigator
with
Feldman Lawyers, added that
“mediation is the first chance in
the lawsuit for the parties to
hear their story told – and also
to really listen.” Thus, we have
two ears, but one mouth.
A BLUNT
ASSESSMENT
Yet seeing is also important:
Mana
Khami,
litigation
associate with Harrison Pensa
LLP in London, wrote that cases
settle when “reasonable parties
are involved in the negotiation
process
and
have
the
opportunity to face the other
side and be heard.”
MOVE ON, ALREADY!!
When it comes to the reason
cases settle at mediation, some
don’t mince words. According
to L. Brian Swartz, Executive
V.P., Legal & Commercial
Services at Aecon Group Inc.,
“money talks….B.S walks. A bad
settlement beats great litigation
every time.” Well put.
THE POETLITIGATOR:
Toronto litigator Alan Davis
demonstrated artistic flair in
explaining mediated settlements:
THIS NEWSLETTER IS NOT INTENDED AS LEGAL ADVICE.
Stancer Gossin Rose LLP / ADR@SGR
1210 Sheppard Avenue East, Suite 310● Toronto, Ontario M2K 1E3 ● 416-224-1996 ● www.sgrllp.com
MEET OUR MEDIATORS:
ERIC GOSSIN: Civil & family law mediator & arbitrator, Vice-Chair of the Ontario Bar Association’s ADR section executive.
MITCHELL ROSE: Chartered Mediator for civil disputes, including employment, commercial, estates & personal injury matters.
RAYMOND STANCER: Mediator, veteran litigator, retired Small Claims Court Deputy Judge. Currently charging roster rates.
“Vulnerabilities create
Risk, given
Costs and
Passage of time
understand all positions and the
basis for those positions.”
imposed – and the snacks are
better than courthouse food.”
You mean it isn’t all up to
mediator?
That assumes, of course, that
there are snacks at mediation
(as there are at our offices,
which you can use at no extra
charge).
Hena
Singh,
employment lawyer with Singh
Lamarche LLP believes cases
settle at mediation due to a
“combination of exhaustion,
hunger and fear of the unknown.”
R-E-S-P-E-C-T
Through an
Independent Facilitator is an
Opportunity to resolve with
Certainty.”
AN EDUCATED PARTY
IS YOUR BEST
CUSTOMER:
While creativity is vital for both
a lawyer and a mediator, you
can’t diminish the value of
educating your own client
beforehand in order to lay the
groundwork for accommodation.
This is why Sisi Pan, Claims
Specialist with Zurich Canada,
believes “that the #1 reason why
a case settles at mediation is that
both parties are well prepared
and agree to compromise on
certain things.”
Similarly,
Vito
Scalisi,
Barrister, in Concord, Ontario
wrote that “cases settle when
counsel perform the requisite
work to ensure that clients
The answer is “no” and, in fact,
settlement often has a lot to do
with how the lawyers view one
another. The number one reason
a case settles at mediation,
according to plaintiff/defence
litigator Natasha Skupsky of
Thompson, Tooze, McLean
& Elkin, is that “lawyers respect
one
another’s
skills
and
experience. Otherwise, more
experienced counsel simply size
of the opposition and then settle
later.” Settling later only results
in the clients incurring more
time, money and risk. So give
your opponent their props at
your next mediation.
FEAST OR FAMINE:
Some of you mentioned the role
of food (or lack thereof) as
motivation.
Whitby
litigator
Edward
Spong told us that cases settle
because “the parties craft the
result as opposed to having one
BRUTAL HONESTY:
Finally, we thank Rosanna
Breitman, family lawyer and
mediator with Rechtshaffen
Breitman for this closer: “The
most common, most powerful
reason family law cases settle at
mediation: People don’t want to
wreck their kids’ childhoods.”
June 7: Join Mitchell Rose for an
OBA Breakfast CPD on Joint
Sessions and Opening Statements
at Mediation. Mitch will chair a
lively panel discussion between
mediators and litigators. Whether
you love or loathe joint sessions,
this brief seminar is for you.
THIS NEWSLETTER IS NOT INTENDED AS LEGAL ADVICE.
Stancer Gossin Rose LLP / ADR@SGR
1210 Sheppard Avenue East, Suite 310● Toronto, Ontario M2K 1E3 ● 416-224-1996 ● www.sgrllp.com