Federal Court Mediation - Personal Experiences
Meeting with the Liaison Committee of the Montreal Bar, Justice Sean Harrington
January 10, 2013
I have conducted about a dozen dispute resolution conferences, all of which were successful. There are two main reasons for this. Prothonotaries who were acting as case managers recommended me specifically to conduct the conferences. All but one dealt with maritime law, the area in which I specialized before being called to the Bench. They were all in the form of neutral evaluations.
Most dispute resolution conferences, usually by way of mediation, take place within the context of case management. They are usuallycarried out by the case management judge, who is almost always a prothonotary. Judges do not often act as case managers. I am currently managing a few c ases and will be conducting my first dispute resolution conference in one later this month.
My involvement has usually been at the suggestion of the prothonotaries. These are cases under special management in which the parties appear to be anxious to settle, but needsome help. These are maritime disputes, often involving several parties who would like a neutral evaluation from someone who had practiced in that field. They want a prediction as to how t he matter may end up should it proceed to trial. There are usually underwriters with sharp pencils involved. These are commercial matters in which personal feelings, and perceived insults, are ata minimum. A t ouchy-feely approach is not necessary, or even particularly welcome.
It must be emphasized that predictions are only that. The judge carrying out a neutral evaluation cannot assess the credibility of witnesses or in the case of expert witnesses determine who will find favour with the trial judge. What the parties are looking for is someone with a good knowledge of the law i nthe area in question. It may be that a particular lawyer or a particular client has been unduly stubborn. It can be real eye opener to have an assessment from someone who is both neutral and knowledgeable.
I have carried out dispute resolution conferences in which there are several defendants. If the matter goes to trial, it may be that none is liable, or that only one is liable. One of the great advantages of settlement conferences is that one may compromise. For instance, the neutral evaluator may assess the plaintiff’s chances atsay 50/50, or 2/3rds/1/3rd, or 1/3rd/2/3rd. The only thing for certain is that the trial judge could not make such a finding. It would be all or nothing. My approach could work in other commercial areas of the law, such as intellectual property, provided, however, that the evaluator has a sound knowledge of the law i n question. It may not work in other areas such as First Nations’ claims.
One technique I have used, depending on the circumstances, is that of sealed bids. The plaintiff tells me privately what it would be willing to accept, and the defendant tells me what it is willing to offer. In the unlikely event that they match perfectly, there is a settlement. If the defendant is willing to offer more than the plaintiff is willing to accept, there is a settlement by splitting the difference. More often than not, there is no settlement as there is a gap, but then the conversations and the shuttle diplomacy become more interesting.
To give a few e xamples, my first neutral evaluation was at the suggestion of Prothonotary Lafrenière. He was dealing with a case concerning general average, a rather esoteric area of maritime law. He had heard that I had once been Chair of the Association of Average Adjusters of Canada. Consequently, I was very familiar with the rules of adjustment and in separate caucuses pointed out to each side the weaknesses of their own case.
A n umber of the conferences involved ship engine failure. There are a number of possible causes and a number of potential culprits. The shipowner’s own crew m ay have failed to maintain the ship properly. There may have been faulty construction. There may have been faulty repairs. There may have been more than one cause. Given the risks inherent in any trial, and the cost of litigation, there is much truth in the saying that the worst settlement is better than the best victory at trial. The parties are usually insured and underwriters are used to assessing risks and putting an end to those risks by a reasonable settlement.
The one non-maritime case I resolved was at the suggestion of Prothonotary Morneau. In essence, it was a landlord/tenant dispute in which it was alleged that the tenant had failed to properly maintain the buildings in question and to redeliver them in the same condition in which they had been let out; fair ware and tear excepted. The same underlying principle applies to the charter of ships, so I actually managed to settle the case by drawing on textbooks such as Scrutton on Charterparties and Bills of Lading, which the parties had never heard of!
Sometimes the parties themselves suggest that a particular judge or prothonotary conduct a settlement conference. The Chief Justice tries to accommodate those requests when feasible.