When to Mediate

  • consider offering/agreeing to voluntary mediation pre litigation
  • discovery rarely necessary before mediation
  • documentary discovery may provide all that is needed

Choice of Mediator

  • consider mediator’s style and personality for the facts of the case and
    personalities of clients and counsel
  • working with opposing counsel’s suggestions may be critical to a
    successful mediation

The Brief

  • avoid repeating the pleadings
  • tell the story
  • include key documents and pleadings as appendices
  • medicals to support general damages and disability claims
  • actuarial calculation of pension loss
  • consider whether focussed case law is needed for unusual issues
  • include all elements of losses/damages including salary increases,
    severance pay pursuant to policy or statute, notice period losses,
    wages owing, vacation pay, incentives owing and during notice period,
    stock options and other equity vested and vesting during notice period,
    pension loss
  • charts are an effective snapshot for both damages and the history of
    negotiations prior to mediation


  • ascertain who is attending on the other side
  • consider spouse or other support for plaintiff
  • authority to settle on all sides
  • advance discussion with mediator
  • is a joint session suitable
  • will some issues be “parked” for purposes of mediation (eg. some
    aspects of cause allegations, other polarizing issues)

Preparing the Client

  • explain process and likely timing — joint session and breakouts
  • style of mediator and opposing counsel
  • give the client a voice especially on matters where the client will be more effective
  • not a discovery
  • be ready to address mitigation
  • role of mediator and when to excuse mediator
  • how to handle the presentation of the other side
  • first offer
  • bottom line

During Mediation

  • effective use of joint session
  • clarifying confidentiality of process
  • clarifying confidentiality or otherwise of discussions in caucus
  • conversations with counsel in the absence of clients
  • mediator proposals
  • continuing the mediation effort after the first day


  • cover allocation of proceeds, timing of payment, RSP and other tax considerations, EI repayment and holdbacks for same, mediator’s fees, legal fees, verbal and written references, outplacement counselling, announcements, confidentiality, one-way or mutual release, indemnities, dismissal of action and costs to do so
  • have draft documents
  • finalize documents before adjourning with signatures

Post “Failed” Mediation

  • timetable
  • mediator’s proposal
  • Rule 49 offer
  • further mediation


This content is not intended to provide legal advice or opinion as neither can be given without reference to specific events and situations. © 2021 Nelligan O’Brien Payne LLP.

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