CIVILITY IN PRACTICE AND MEDIATION
BY
JOHN R. CROUCHMAN
LEGAL COUNSEL
MEDIATOR & ARBITRATOR
Rule 4 of the Rules of Professional Conduct as dictated by The Law Society of Upper
Canada sets forth a legislated standard of civility.
Rule 4.01(6) requires us to “be courteous, civil and act in good faith to the tribunal and
with all persons with whom we have dealings in the course of litigation”.
The Rule also asks us to maintain dignity, decorum and courtesy in the courtroom
because, unless order is maintained, rights cannot be protected.
Not only do the Rules provide a standard in the courtroom but also in Discoveries. Legal
actions do not normally proceed to Trial, The first and most important contact between clients
and counsel is at the Examinations for Discovery. In particular, it is noteworthy that the clients
can attend the opposing parties discovery. Rule 4.01(4)(c) of the Rules of Professional Conduct
provides that “A lawyer, when acting as an advocate…shall not make frivolous requests for the
production of documents or make frivolous demands at the Examination for Discovery”.
Furthermore, it is regarded as an uncivil act to answer a question with “I will take that under
advisement” rather than provide a clear undertaking or a clear refusal.
Civil behaviour is not only being courteous and respectful to the tribunal and opposing
counsel but also is not being obstructive, rude and uncooperative in advancing your client’s case.
Unfortunately, uncivil behaviour cannot be legislated as suggested by The Law Society
of Canada but rather it must be learned. Lawyers that are uncivil must be educated and
convinced to change that behaviour to civil behaviour. Why? – Because it is in the best interests
of their clients.
If one cannot change the attitude and behaviour of the uncivil lawyer, then at least you
can use the tools of civility and courtesy strategically.
Good lawyering is a person acting well.
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If you have an opposing lawyer who is belligerent and discourteous, let him be. His
behaviour is not persuasive. Respond to the issues, not the attack. Take the high road at all
times.
Justices and juries find for people they like – people that are likeable.
Uncivil behaviour does not have its rewards. In fact, the harder one argues, the less
persuasive one is.
It is also important to remember the two adages, namely, “What goes around, comes
around” and “If you don’t have anything nice to say, don’t say it”.
The Advocate’s Society has produced a brochure entitled “Principles of Civility for
Advocates”. It talks about cooperation and communication. It talks about solving problems
instead of creating them. The brochure can be found on the web site for the Advocate Society at
www.advocates.ca/civility/principles.html It is recommended reading for all counsel.
In Mediation, the emphasis is on solving problems. The problem is not the lawyers’
problem. The problem is the issue between the clients. In all probability, the issue has arisen
through no one’s deliberate act and that has created the tension, the stress and the legal
proceeding. It is that issue that must be resolved.
It is extremely important to be civil in the Mediation process. Mediation is a negotiation
process, rather than an adversarial process and, as such, counsel must be persuasive. Counsel
cannot be persuasive if they are rude, belligerent, arrogant, non-communicative, non-cooperative
and unprepared.
What makes a successful Mediation are counsel who are well-prepared and have
provided opposing counsel with reports, information and calculations that put forward their
respective client’s position. Too often a Mediation fails because information is not forthcoming
or has been presented at the twelfth hour.
There are two approaches to negotiating a settlement. The first approach is known as
“positional bargaining”. A negotiator cares little about the interests of the other litigant.
Frequently, when adopting this particular approach, the advocate adopts a narrow, one-sided
focus. He or she tries to figure out how to achieve victory at all costs and normally puts forth an
uncompromising stance. Little time is spent in trying to develop options which meet the interests
of both parties. The focus is primarily on the specific interests of the client and there is a failure
to acknowledge what the other side has to say.
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One of the flaws of positional bargaining relates to the focus which is on position instead
of interest. This tends to stifle creativity. Furthermore, it may do harm to the relationship
between the parties as it becomes a contest of wills in which each side becomes entrenched in
their respective positions. No one benefits from this approach. Certainly, the ultimate objective
of the mediation is to resolve the claim in its entirety or, in the alternative, narrow the issues for
trial. The approach adopted by positional bargainers may not accomplish either goal.
The alternative approach is known as problem solving or “interest-based” negotiation.
This approach requires the party to consider the other side’s interest and needs. By doing so, the
focus is on trying to jointly solve the problem by creatively devising mutually beneficial
solutions.
Most Mediations involve finding the magic dollar figure that the plaintiff will accept and
the defendant will pay to finalize the matter. Negotiations involving nothing more than a dollar
solution with no future relationship between the parties to be considered is sometimes called a
“rights-based” negotiation. While positional bargaining comes more into play in a “rights-based”
negotiation, there is still the opportunity to look at the interests of the injured party and be
creative. Assisting an injured party to return to the workplace or to receive a stream of income
through a structured settlement can be used rather than simply paying a lump sum payment.
It is important for counsel to prepare in advance for the Mediation hearing. Not only
should briefs be exchanged well in advance of the Mediation hearing, but also a strategy should
be developed with the assistance of the client. The client should be aware of the “worst and best
case scenarios”. There is nothing more frustrating than working out a solution with the other
counsel and then having difficulties persuading your “uninformed client” that this is the best deal
possible. To avoid this pitfall, good counsel meets with the client ahead of time and sets out the
“good, bad and ugly” of various options available to him or her.
By formalizing your objectives before the Mediation, you are forcing yourself to consider
the possible outcomes, which one(s) you want and what you are willing to give in return. This
assists in making concessions and compromises as the negotiation process proceeds.
You should have, at least, the first settlement position prepared and ready in advance of
the mediation. Good negotiators usually have two or three settlement positions prepared in
advance of the Mediation.
Mediation briefs should be exchanged. These do not need to be lengthy and can follow
the format of a pre-trial conference memorandum. A concise statement of facts with any
admissions should be set forth. One or two medical reports, an economic loss report, and
statements of witnesses where liability is in dispute are important. Hospital records are usually
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not of assistance unless a particular point is to be made. A list of assessable disbursements
should be included by plaintiff’s counsel.
Counsel should ensure that their client has read the opposing counsel’s brief prior to the
Mediation so that the client has an idea of the various issues to be discussed and resolved at the
Mediation.
At the Mediation, it is important that you present your position in a clear and forthright
manner. Be positive and talk directly to the other side. The mediator is not the one to be
convinced, but rather opposing counsel and his or her client are the decision-makers. Put
forward your position in an unthreatening manner. Try to be neutral in your tone of voice,
instead of conveying skepticism about the other party’s position.
When the other side is advancing their position, do not interrupt. It is important to listen
to the other side and appreciate their point of view. You may not agree with it, in fact you may
strongly disagree but it is important that you understand the other side’s position. Agreement is
not necessary to reach a resolution; however, an appreciation of the other side’s position is
important.
You and your client should be open to persuasion. The parties are attending the
Mediation hearing with the expectation that the problem will be resolved and the dispute will end
at the conclusion of the mediation.
The mediator should assist in exploring areas of agreement so that issues can be
narrowed. It is not a sign of weakness by acknowledging the other side’s position, to agree on
side issues and to concentrate on the main issues that are preventing resolution. You can afford
to recognize the other side’s perspective without necessarily adopting it.
Emotions can become intense during Mediation. You should not allow emotions to
dictate the negotiation. Be positive to persuade – being negative is counter-productive. Never
engage in personally attacking your adversary, either directly or indirectly.
It assists in resolving the dispute to put the problem(s) on the wall. This assists in
diffusing strong emotions and shows the other side how you can solve a problem they have.
Make the problem the issue.
It is important to find out what the other side wants, to determine what the problem is and
what their concerns are.
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Most legal proceedings are settled before Trial. Clients do not want to proceed to Trial
and have a stranger or six strangers decide their fate; clients want a say in resolving their dispute.
In the final analysis, by approaching the Mediation with an open mind, unplugged ears
and common sense, the resolution of the dispute is attainable and the interests of both parties are
better served.