Prepare Draft Minutes and Releases

Before the day of mediation, you should have a discussion with your client about the first offer your client is prepared to make. Give your client a frank assessment of their case and its strengths and weaknesses. If possible, you should meet with your client in advance of the mediation to have this discussion and to review the mediation briefs.

Prepare ahead of time a shell or skeleton set of Minutes of Settlement and Releases. Having the title of proceeding, court file number, correct parties, recitals etc., will save a substantial amount of time on the date of mediation. Since these mediations tend to go into the evening, advance preparation will assist in making sure necessary protections are set out in the settlement agreement.

Day of Mediation

Ensure all parties will be in attendance. A mediation will be less likely to succeed if the parties who can consent to settlement are not present.

Consider what non-parties, if any, should attend as well, either as support for the parties, or to “approve” the settlement if the actual party will be relying on the non-party’s input, opinion, and advice.

Consider the utility of a social worker if it will help with any non-legal issues that need to be mediated as well.

If possible, agree to the format of the mediation ahead of time with other lawyers and perhaps in consultation in advance with the mediator. A few considerations:

• Should there be a plenary session?;
• Should the Mediator meet any of the parties in advance?;
• Should any of the non-parties be present in plenary, or not?; and,
• Will lawyers be expected to give opening statements?

The format will often depend on the relationships between the parties, number of parties, and lawyer or mediator preferences.

Contact experts or accountants and ensure availability and access via phone on the day in case of questions which may come up. Structuring a settlement may require tax advice. The settlement may have tax consequences and clients may need to understand more precise valuations to understand what they are receiving or paying on settlement. In other words, consider all the tools you need in advance to increase the likelihood of a successful mediation: real estate valuations, business valuations, etc.

If older adults are involved in the mediation and need accessible accommodation, make sure the venue provides what the older adults need and ensure plenty of food and water are available.

The Rules of Professional Conduct

Ontario lawyers should be mindful of their obligations under the Rules of Professional Conduct.

Under the Rules a “tribunal” is defined as including “courts, boards, arbitrators, mediators, administrative agencies, and bodies that resolve disputes, regardless of their function or the informality of their procedures.”

This means the duties owed to a court are similarly owed to a mediator.

For example, Rule 2.1 “Integrity” states that: “A lawyer has a duty to carry on the practice of law and discharge all responsibilities to clients, tribunals, the public and other members of the profession honourably and with integrity.”

Further Rule 5.1-1, “Advocacy”, states: “When acting as an advocate, a lawyer shall represent the client resolutely and honourably within the limits of the law while treating the tribunal with candour, fairness, courtesy, and respect.”

These are just two of the many Rules that govern lawyers’ duties. Lawyers must remember that these duties also apply to mediators and their conduct at mediations.

Documenting the Settlement

It is beneficial to prepare draft or skeleton Minutes of Settlement and Releases before hand and have them available on your laptop, ready to edit and finalize. Be prepared to accommodate the unexpected in the settlement and think outside the box on possible solutions to the dispute at hand.

When coming to a settlement, try to calculate the “real” value the client will be receiving or paying. Include tax consequences, legal fees and expert fees that need to be paid. As lawyers, be prepared to advise on the risks of having/not having such information.

Consider in finalising Minutes of Settlement whether:

• all parties with a financial interest have been given notice;
• independent legal advice is required;
• a certificate of independent legal advice or none is required;
• spouses/former spouses are signatories or have been given notice of the proceedings;
• all parties named in all testamentary documents are signatories or have been given notice of the proceedings;
• all defendants are signatories or have been given notice of the proceedings;
• the estate trustee should be a signatory; and,
• the estate trustee has knowledge of the estate administration and for example, whether the estate trustee has advertised for creditors.[1]

Settlement agreements must be prepared by the parties and their lawyers and should not be prepared by, or witnessed by, the mediator. The mediator will remain neutral, is not an advisor, and cannot become a witness.

Make note if any of the parties are “under disability” pursuant to Rule 7.01(1) of the Rules of Civil Procedure (includes a minor or an individual who is mentally incapable within the meaning of section 6 or 45 of the Substitute Decisions Act, 1992). All claims involving persons under disability require judicial approval of any settlement.

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[1] See Ian Hull and Suzana Popovic-Montag, “Alternative/Creative Resolution in the Context of Incapacity”, at p 26.

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This paper is intended for the purposes of providing information only and is to be used only for the purposes of guidance. This paper is not intended to be relied upon as the giving of legal advice and does not purport to be exhaustive.