What If Lawyers Behaved Like the U.S. Presidential Candidates at Mediations?

What If Lawyers Behaved Like the U.S. Presidential Candidates at Mediations?

nov 4

 

The bizarre US 2016 presidential election campaign has been difficult to turn away from for anyone who keeps an eye on the news, and after watching the debates between Hillary Clinton and Donald Trump, it left me wondering how uncivil civil litigation would be if lawyers behaved liked politicians in the US election.

Mediation is a form of Alternative Dispute Resolution that is required in lawsuits that are filed in Toronto, Ottawa and Windsor and is used with great frequency in all Ontario jurisdictions, and in fact in other provinces to try to reach a mutually agreeable settlement of civil lawsuits, such as Disability Insurance claims.

While comments made at mediation can get heated and downright nasty at times, for the most part lawyers understand that the purpose of the mediation is to focus on the merits of the case in an effort to reach a mutually agreeable resolution that both sides can live with, although neither party may be particularly happy with the outcome.

Rather than an environment that requires some degree of mutual respect and sensitivity to the matters involved in the lawsuit, imagine, that both sides come armed with personal insults and innuendo, not only about the parties involved in the litigation, but about the lawyers too.

During an opening at a mediation, imagine an exchange that goes something like this:

Mediator: I am now going to invite the lawyer for the plaintiff to make some opening remarks about their case. If you don’t agree with something that is being said, please make a note and you will be given an opportunity to respond.

Lawyer #1: Thank you for attending this mediation. This case is about a hard-working woman who has been diagnosed with a debilitating illness that has made it very difficult for her to continue her job as a customer service representative…

Lawyer #2 (interrupting): Not true!  She’s a liar!!

Lawyer #1: She has worked at this job for over 10 years at the time that her symptoms developed, causing her to put in a claim…

Lawyer #2 (interrupting): It’s all in her head – what a joke!

Mediator (Moderator):  Now, now, I asked that there be no interruptions….

And so on. This generally doesn’t happen at most mediations, but you can see how chances of moving past insults and disrespectful behaviour make the likelihood of reaching a mutually negotiated settlement that much more difficult.

Some degree of civilized debate is required if our political systems are ever going to be able to accomplish anything in the political sector, the same is very true in the world of civil litigation both in mediation and also in our courts.

 

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