Mediation & Pre-trial Conferences

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1 Mediation & Pre-trial Conferences OBA Civil Litigation Section March 6, 2013 Ranjan K. Agarwal, Bennett Jones LLP Shara Roy, Lenczner Slaght Royce Smith Griffin LLP Mediation 2 1

2 The Rules Rule ue 24.1 provides for mandatory mediation in some actions where e a neutral third party facilitates the parties in reaching a mutually acceptable resolution. The Purpose: To reduce cost and delay To facilitate an early and fair resolution Confidentiality: All communication at the mediation, as well as any mediation briefs (statements of issues), the mediator's notes and records, are without prejudice 3 The Rules Mandatory Mediation Applies To: All actions in Toronto, Ottawa and Essex County except: Commercial List actions Mortgage actions (Rule 64) Construction Lien Act actions Bankruptcy and Insolvency Act actions Certified class actions Actions exempt by court order Other matters may yproceed to voluntary or court ordered mediation Timing Mediation session must take place with 180 days after the first defence is filed may be postponed on consent or by court order The mediation must be scheduled or held before the action is set down for trial (rule (5) and Practice Direction for Civil Applications) 4 2

3 Choosing a Mediator: The parties can select a "roster" mediator (goo.gl/f8mse) Roster mediators' fees are capped (e.g., $600 for a two-party, ½ day mediation) The parties can also agree to a mediator who is not on the roster If there is a dispute, a party can ask the mediation coordinator to assign a mediator Consider: The nature of the dispute Experience of the mediator Personalities of the parties / mediator Mediators may be: Specialized arbitrators / mediators Practitioners Former judges Sitting judges 5 Logistics: The parties must file a statement of issues (Form 24.1C) seven business days before the mediation This statement sets out the facts and legal issues in dispute and the party's position and interests Any documents of central importance, as well as the pleadings, are included The parties and their lawyers are required to attend the mediation 10 days after the mediation, the mediator will provide a report to the parties 6 3

4 Some Practical Tips: The Mediator Ask your colleagues for referrals or recommendations. Mediators have different styles and specialties and may be more or less-suited to your action If the claim is for a modest amount, consider a roster mediator, who usually charge less Timing Think about the timing of the mediation Do you need documentary or oral discovery to better your client's settlement position? Do you need further steps in the action to bring the other side to bargaining table in a real way? 7 More Practical Tips: Mediation Brief Include your best evidence and arguments in the mediation brief Do not cut-and-paste your pleadings use the mediation brief to advocate for your client's settlement position The mediation brief assists the mediator in understanding the facts, but your advocacy should be directed at the opposing party Focus on interests, not positions If the mediator and opposing party are familiar with the law, do not waste energy on the legal arguments Consider delivering an expert report or having it available Include the negotiation history in the mediation brief Include all informal and formal offers to settle 8 4

5 More Practical Tips: Preparing for the Mediation Take some time to calculate your client's damages and interest Are there any tax implications? Analyze the costs risk of continuing the action If you win at trial, what is the other side's costs exposure? Think about non-monetary terms Installment payments? Releases? Consent dismissal order or discontinuance? Bring minutes of settlement / releases with you on a USB key or laptop and either bring a printer or plan to have access to one during the mediation DO NOT leave the mediation without all the parties signing minutes of settlement Have the person writing the cheque in the room 9 More Practical Tips: At the Mediation Consider whether to have a plenary session (an all party meeting) to start the mediation or during the mediation. Accept suggestions from your mediator Consider who will / should speak to different issues Often the client is the best person to orient the mediator to the facts and it invests the client in the process Inform your client (and assume yourself) that what you tell the mediator will be communicated to the other party Consider what if anything to tell the mediator in confidence Consider strategically t how to communicate to the mediator your bottom line Prepare your client for the anticipated outcomes and consider your BATNA Take detailed notes of any and all settlement offers, including your own. This may ground later settlement discussions if a resolution is not reached 10 5

6 Pre-trial Conferences 11 The Rules Rule ue 50 provides for a mandatory pre-trial conference e ce in all actions. The Purpose: To promote settlement of some or all issues prior to the hearing To obtain directions or orders from the court to ensure the most expeditious, efficient, orderly, and least expensive disposition of the proceedings Timeframe: Within 180 days after an action is set down for trial, the parties must schedule a date for the pre-trial conference 12 6

7 The Rules Materials: 5 days before the pre-trial each party must file a brief with a statement of the following: The nature of the proceeding The issues raised and the party's position The witnesses that will be called and the length of time their evidence will take The steps that need to be completed before the action is ready for trial Attendance: The lawyers and their parties (unless the court orders otherwise) must appear at the pre-trial conference Someone who has authority to settle should either attend or be available by phone 13 The Rules At the Pre-trial: The following will be considered: Settlement Simplifying the issues Admissions Liability Damages Length of trial Experts and other witnesses Fixing a date for trial Whether to direct a reference Anything else that would make the trial more just, expeditious and less expensive A timetable might be established or a date fixed for trial 14 7

8 The Rules Pre-trial Report: If a trial date is fixed, the judge or case management master will provide the parties with a copy of the pre-trial report The report sets out any steps that need to be completed before trial, the anticipated length of the trial and anything else that would be relevant to scheduling the trial The report becomes part of the trial record Anything outside of the report discussed during the pre-trial conference cannot be disclosed to the judge at trial The judge who presided at the pre-trial conference cannot preside at the trial, unless the parties consent. Costs can be ordered at the pre-trial conference. 15 Some Practical Tips: Use your mediation brief as a starting gguide Be reasonable if a judge says you have a terrible case, it will have more impact than if the mediator had the same view The "decider" needs to be in the room even if it s the President or a foreign client if they can't or won't travel, patch them in by conference call Consider bringing your expert witnesses to explain complex issues Bring draft minutes of settlement or releases that you can edit and print again, don't leave the pre-trial conference without a signed agreement Be prepared to discuss trial management if the case doesn't settle, consider what the trial will look like If you need administrative orders or directions, come prepared to ask for them it can save the trouble of a pre-trial or trial motions 16 8

9 Mediation and Pre-trial Conferences OBA Civil Litigation Section Ranjan K. Agarwal, Bennett Jones LLP Shara Roy, Lenczner Slaght Royce Smith Griffin LLP March 6,

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