When I attended the Harvard mediation course
many years ago, the instructors presented the class with an ethical
problem and asked us for our views. Here it is, modified for a 2015
The plaintiff is suing for the breach of a supply agreement. The
damages are easily $750,000. The equities favour the plaintiff, but
pinning down the cause of action is a challenge. During the first
caucus, plaintiff 's counsel frankly admits that he has a
serious uphill case on the law. The financially strapped client,
who believes the odds are firmly against him, intimates that he
would settle for whatever the defendant was willing to pay.
The mediator then goes into caucus with the defendant, whose
counsel makes a passionate argument that the plaintiff 's case
has no merit. However, the defendant "might" be prepared
to pay a "nuisance" amount.
"But what about Bhasin v. Hrynew?" the
mediator asks. "Doesn't that change the landscape? The
plaintiff isn't arguing it, but the judge could go there. The
court's not going to like those e-mails — doesn't the
other side have a decent bad faith argument?" "They
aren't arguing Bhasin because they don't know
about it yet, and don't you say anything. They came to
The Harvard instructors asked, "What should the mediator
do? He believes that the plaintiff 's case has some merit and
may have a decent settlement value, but suspects that the plaintiff
will jump at a nuisance offer if he thinks this is the best he can
do. If the mediator raised the Bhasin case with the
defendant, should he mention it to the plaintiff? Or should the
mediator consider withdrawing from the mediation?"
Having had attended dozens of mediations as a lawyer up to this
point in my career, I felt the answer was obvious: the mediator had
no business educating plaintiff 's counsel. It was the
lawyer's obligation to know the relevant law, end stop. Others
in the class felt that it would be fundamentally unfair for the
mediator to discuss a relevant case with one side, and not mention
it to the other. Some thought the mediator ought not to have
brought up a case that the sides had not referred to in their
As a mediator who takes a (cautious) evaluative approach, I
believe that it is sometimes appropriate to express a view on the
law when helping the parties assess risk. But I don't believe
the mediator's role is to plant ideas in a party's head
which makes settlement less likely. It is not for the
mediator to be saying: "You know, you could argue
this." So I would not have disclosed Bhasin v
Hrynew to plaintiff 's counsel. But at the same time, I
would alter my approach in the plaintiff 's room by
not emphasizing risk. They were already in danger of
undervaluing their case, so why "pile on?" The defendant
might be bluffing.
Having said this, there are situations where a mediator might
need to level the playing field on a point of law. I recently heard
this example from a family law mediator. She shared an experience
she once had where the wife's lawyer made an offer assuming a
particular — and wrong — tax treatment. The
husband's lawyer knew that if they accepted the wife's
offer, she would be in for a big tax surprise and end up with
significantly less in her pocket. He told the mediator not to rock
the boat by getting into tax issues.
In that case, the mediator refused to continue the mediation
without full disclosure of the tax implications of a settlement,
effectively threatening to withdraw as the mediator. The
husband's lawyer relented and the matter ultimately
I agree with this approach, but why the difference between the
In the first example, the legal "information gap"
pertained to the merits of the case itself. It is up to the lawyers
to know the law, and if one side has an advantage because they know
the law better, good for them. In the second example, the
information gap pertained to the legal and practical effect of the
If I was aware of a statutory provision or legal principle that
would defeat the benefit a party expects to receive from a
settlement, I simply would not be comfortable facilitating the
settlement unless the parties were at least alerted to the
Some mediators may disagree, saying: "We don't give
legal advice." But more and more frequently, we are retained
precisely because of our litigation experience or our expertise in
a particular area of law. Advising the parties of a potential
problem in a settlement is not giving legal advice; it is adding
value to the mediation process.
This article originally appeared in the September 18th, 2015
issue of The Lawyers Weekly.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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In Irwin v. Alberta Veterinary Medical Association, 2015 ABCA 396, the Alberta Court of Appeal found that the "ABVMA" failed to afford procedural fairness to a veterinarian undergoing an incapacity assessment.
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