How to sabotage a mediation: An impractical guide for lawyers

Mitchell Rose

To: Very junior associate

From: Senior partner

RE: Oil v. Water – mediation

There is a mediation scheduled for this case next week. I believe it is either mandatory under the Rules of Civil Procedure or, in a moment of rare weakness, I reluctantly agreed to it. I would like you to attend at the mediation in my place. I’ll be golfing. Attached is the file comprised of 10 banker’s boxes of documents for you to quickly review.

This case will never settle in a million years. I am absolutely certain. Therefore, I see no point in preparing for and participating in this mediation in earnest. In any event, we all know that, despite the obscene cost, the countless hours, the utter uncertainty of the outcome (not to mention collection difficulties and the prospect of appeals), a trial is the only sane method of resolving each and every civil dispute.

Accordingly, even if the opposing counsel and the mediator we have hired are prepared to undertake the serious work necessary to resolve this case, you must prevent this from happening at all costs. We simply need to get this mediation over with so that we can have our judicial pre-trial conference and then move on to trial.

Fortunately, in case you should accept this assignment (Who’s kidding? It’s not as if you have a choice), I am setting out below some suggestions on how to sabotage a mediation, which were prepared by a colleague of mine who is a litigation lawyer and mediator. Perhaps he was being facetious but I can see no reason why we should not take his “advice” at face value.

1.    Do not bother delivering a statement of issues or a mediation brief in accordance with the Rules or the mediator’s stated policy. However, if you feel you must send something in advance, do not be selective about what you include in your material. Just bombard the mediator and the other side with lots of paper on the day before the mediation. Let them figure out for themselves what your position is and which documents support your case.

2.    Send a lawyer to the mediation who does not have carriage of the file. Ideally, this lawyer should be someone who knows little or nothing about the case and has no prior working relationship with the client. Therefore the client won’t be able to look to the attending lawyer for guidance. (Note: If you haven’t guessed by now, this is the reason why I am sending you to this mediation.).

3.    When you arrive at the mediation inform the mediator of the precise conditions of your participation, such as refusing to engage in a joint session. Better yet, advise the mediator that he or she has one hour to settle the case or else you are walking out! For dramatic effect, tell the mediator that you have a plane to catch so he or she had better hurry up.

4.    Do not come to the mediation with your client. If the other side gets upset about that then simply tell them ] your client will be available by phone or you have already obtained settlement instructions. Do not bother obtaining the other side’s consent or a required court order in advance.

5.    If there is a joint session then kick up a fuss about essential matters like the seating arrangement, the fact there may be more than one lawyer on the other side, or that the opposing party’s spouse wishes to sit in.

6.    If your client does attend along with you, do not let the client say a word. Certainly do not permit the mediator to address the client directly during caucus. After all, this is your case!

7.    When it is your turn to speak during the joint session, viciously attack the opposing party’s character. Better yet, point out all of his or her lawyer’s procedural gaffes to date so as to embarrass the lawyer in front of the client.

8.    Given that our client is a defendant debtor in a collection case, suddenly “cry poor” at the mediation, but offer no evidence to corroborate your claim of impecuniosity.

9.    Should you be relying on case law to support your position, don’t bother to include the cases in your brief or even bring them along to the mediation.

10.    When you think you have heard enough from opposing counsel or the mediator, stand up and start packing up your belongings and tell everyone that you are going to leave, now! Show them you really mean business. However, if the other side should try this tactic first, react by packing your belongings at an even quicker pace. The first one to walk out wins.

I am told if you follow a few or more of these suggestions then the mediation is bound to fail despite the mediator’s best efforts. Good luck and please don’t call me for help while I am on the golf course.

Mitchell Rose is a mediator and lawyer with Stancer Gossin Rose LLP in Toronto. He believes that humour can be one of a mediator’s most effective tools for resolving conflict. Mitchell can be reached at
[email protected].

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