One of the challenges of mediation is that the parties will often have different views on the law and the strength or value of their case. One of the tools used to bridge the gap and help the parties reach a realistic, fair, and mutually acceptable settlement is case law.

Case law refers to the decisions made by judges in previous cases that are similar or relevant to the current dispute. Case law provides guidance and authority on how the law applies to specific situations and what outcomes are likely if the case goes to trial.

While there is no requirement to introduce case law in mediation, as both counsel and mediator, I have found that the proper use of case law during mediation can substantially increase the likelihood of parties reaching a mutually agreeable settlement. Case law facilitates resolution by:

• • providing a framework for the parties to understand the legal principles that govern their dispute;
  • helping parties to see how a judge or arbitrator might view their case;
  • providing objective and credible evidence to support or challenge the parties’ claims or arguments;
  • helping the parties evaluate their case more realistically and adjust their expectations accordingly (case law can help parties understand their strengths and weaknesses and the risks and uncertainties of litigation);
  • encouraging parties to be more flexible in their negotiations;
  • encouraging the parties to focus on the merits and facts of their case as well as the other side’s case rather than on their emotions or personal feelings;
  • helping the parties avoid unnecessary conflicts and impasses, thereby fostering a more constructive and cooperative dialogue; and
  • demonstrating the parties’ willingness to be reasonable and informed and their respect for the law and the process, which in turn also helps them build trust and rapport with each other and the mediator.

While many mediators have a legal background, it is not their role to provide legal advice or perform legal research. Mediators do not represent either party and do not make decisions for the parties. Instead, mediators help parties identify issues, explore options, and reach mutually acceptable agreements.

The responsibility for conducting legal research, identifying relevant legal precedents, and providing legal advice falls to the lawyers. During mediation, lawyers will use case law to demonstrate the validity of their client’s position and persuade the other party to accept their proposal. Since lawyers for each party will often present conflicting case law, the lawyers’ role will also include analyzing and distinguishing case law relied upon by the opposing counsel. Lawyers will differentiate a case based on the facts, reasoning/policy, or both.

In conclusion, introducing relevant and supportive case law can be a powerful tool in helping parties to settle. By providing a framework for the parties to understand the legal principles that apply to their dispute, case law assists them in assessing their case’s weaknesses and strengths. It makes them more willing to compromise, find common ground, and reach mutually acceptable solutions.

Written by David A. Paul, K.C. (BGS, LLB, LLM, RRM)