Mediation is a cornerstone of the justice system in this province. The opinion counsel takes of mediation will induce your strategy to the situation in the very first meeting with your customer until the dispute is resolved. Less than a generation ago, litigation attorneys gave guidance on based solely on how the trial judge or the jury and judge were likely to observe the facts and the In retrospect, this was rather surprising since in the last decades of the past century, once the tendency to mediated settlements was in its infancy, over 90 percent of Back then, however, lawyers approached pleadings using a minimalist philosophy.
Good young counsel was educated by their senior principals in the fine art of”skinny pleadings.” The objective was to give away as little of this situation as possible and Senior counsel spoke of”knocking off a Statement of Claim in five minutes” and using as much”boilerplate” language as you can. A pleading, replete with signs and filled with”he said”, “she explained”, was typically the sign of a lawyer who didn’t practice much litigation or of counsel who had been Before the coming of mediation as an omnipresent and extremely effective dispute settlement mechanism, settlements were all too often driven by a call from the Trial Office that the case will be called for trial”next week” and the Trial Scheduling Judge wasn’t tolerating requests for adjournments softly.
A little voice whispered, How about calling the other side to negotiate a settlement? Many cases settled as much to prevent having to prepare for trial than on the basis of the merits of this case. At the end of 2009, we’ve entered the Enlightened Age of Mediation. As Ontario Chief Justice Winkler said 18 months ago, Mediation is the cornerstone of the justice system in this province. Mediated settlements, not trials and appeals, not summary judgment motions, have come to be the most likely means to solve a dispute.
Aha, you say: So, just how much can get for my dusty court robes? And Thank goodness, we won’t need to spend any more money on these expensive CLE programs on written and oral advocacy. At the”Enlightened Age of Mediation, written and oral advocacy skills are more important than ever. Very good advocacy starts with persuasive and excellent pleadings.
Excellent and persuasive pleadings need an insightful appreciation of the litigation process in the context of the new Rules of Civil Procedure which come into effect on January 1, 2010. Persuasive pleadings must, more than ever, be drafted with mediation in your mind.
Wordy, unpersuasive pleadings continue to be the sign of a counselor who has failed to appreciate the significance that a fantastic first impression of your client’s case makes. Unpersuasive pleadings will also be the sign of the litigator who hasn’t identified the target audiences of their customer’s case and might be missing out on significant opportunities to achieve a successful and potentially, early resolution of their dispute.
The subject of Igor Ellyn’s 2003 paper was that because the possibility of attaining trial was less than 5 percent, pleadings should be drafted with target audiences that are most likely to be persuaded by your client’s situation in mind. The target audiences of this statement of claim or statement of defense and counterclaim you draft in the privacy of your workplace will be read by a surprisingly large
O Other attorneys, law clerks and students on your firm
o If the customer is a company, members of the corporation’s management
o If the defendant is a corporation, members of the company’s management
o Opposing party’s counsel and others in her/his firm
o The defendant’s insurance adjuster and insurance claims director
o The case management Master in a movement or case conference
o The master or judge on pleading or details motions
o The master or judge on a motion for summary judgment
o The master or judge in the settlement conference or pre-trial conference
o The judge who conducts the in-trial settlement conference
Lots of the above readers, besides the summary judgment, the trial judge and the judges of the Court of Appeal, will be crucial areas of the process of locating a voluntary, alternative resolution of the dispute by negotiation or mediation. Even if every category of reader represents just a single individual (which is unlikely), there are more than 22 potential leaders of your first public demonstration of your customer’s position in the activity: the Statement of Claim or the Statement of Defense and Counterclaim.
