Building Consensus

Experienced. Principled. Fair.

Mediation

As a mediator I strive to move the conversation away from fixed positions towards a sharing and understanding of people’s real interests. By encouraging each party to understand their own and the others’ legitimate interests, I work together with the parties and their counsel to build consensus. This creates opportunities to conceive of solutions that generate value for all parties and resolve disputes in timely and cost-effective ways.

About David

I am a mediator by nature – an attentive listener who enjoys connecting with people to build consensus. I bring a calm but rigorous perspective to my role as mediator and work collaboratively to uncover practical and impactful solutions that make a meaningful difference to people’s lives. I dig deep to uncover the causes of conflict and to understand the whole story, respecting every individual’s narrative and a diversity of perspectives.

Experience

25 years in corporate/commercial litigation

Over 25 years, I have developed extensive experience and expertise litigating complex corporate and commercial cases at both trial and appellate levels. I have acted for both plaintiffs and defendants, families and individuals, and corporations large and small. I understand how the litigation process works – and how it doesn’t. As a mediator this experience and knowledge enables me to identify opportunities for resolution and credibly promote settlement opportunities that make sense.

Specialization

Specialized Training in Mediation

In addition to my practical hands-on experience, I have taken specialized training in mediation, including the Mediating Disputes program at the Harvard Law School and The Mediation Process program at CDR Associates.

Professional Education

Law/MBA

I am a graduate of the Law/MBA program at the University of Toronto (1994). Coupled with 25 years of hands-on experience as a litigator, this formal training has given me insight and understanding into the corporate and commercial cases I deal with.

Expertise

Shareholder / Oppression Actions

Shareholder disputes, especially in closely held and family businesses, can frequently benefit from mediation. These disputes can be both financially costly and emotionally charged, making court-imposed solutions less than satisfying for all concerned. Often what is most… helpful is for everyone to feel heard, without judgement, and to reframe issues from a forward-looking perspective. Through this process, constructive solutions can be developed to create value for all stakeholders.

Partnership & Joint Venture Disputes

Disputes among partners and co-venturers are common and can range from differences about income allocation in professional partnerships to performance of complex cost-sharing agreements between land developers. Partnerships of all kinds often face… deadlocks, calling for skillful guidance to avoid value depletion and dissolution. Mediation can assist the most sophisticated of parties in reorganizing relationships, thereby preserving established goodwill and averting more drastic consequences.

Directors & Officers Liability Claims

Corporate conflict can result in claims against corporate directors and officers alleging breaches of fiduciary and other duties. Such claims require a careful consideration of the particular facts and circumstances, to determine whether a proper foundation for… personal liability can be established. Frequently, claims against directors and officers are appended to broader based actions against corporations, resulting in complexity and delays as motions are brought to determine the viability of these individual claims. Mediation can help litigants in such cases to streamline the issues and resolve threshold questions with greater efficiency than a series of costly interlocutory motions and appeals. Mediation can also serve as a less risky and costly way to resolve expensive stakeholder actions against corporate directors and officers.

Contract Disputes

Contract disputes frequently involve issues about interpretation, with parties ascribing markedly different meanings to contractual terms and objectives. Mediation can assist by providing a low cost forum for neutral evaluation of competing contractual… interpretations. A mediation process can reframe discussions about ‘fault’ towards principled considerations of risk allocation and reasonable expectations of costs and benefits. Mediation can also create value by refocusing parties on realistic assessments of damages and exploring options for mitigation and, where appropriate, relationship mending.

Commercial Torts

Commercial torts claims often raise reputational issues that parties may prefer to have resolved out of court. Liability for torts such as negligence, fraud, or breach of trust can have lasting and serious impact on a defendant’s reputation and… standing in the business community. Similarly, plaintiffs pursuing such claims will face potentially onerous costs consequences if they fail to meet the burden of proof. Mediation offers parties in commercial tort cases a low cost/low risk opportunity to negotiate resolutions outside of court, to their mutual benefit. Even where trial is ultimately pursued, mediation can provide both sides with a neutral evaluation and potentially narrow some of the issues for trial thereby reducing the cost and risk of adverse outcomes.

Professional Negligence Claims

Professionals can be called to account for their conduct where it is alleged to fall below the standard of care. Frequently, both plaintiffs and defendants in these cases feel very strongly about historic events and have markedly different perspectives about the facts as well as… the legal implications. Mediation can provide these parties with an opportunity to be heard and this can reduce tensions, allowing for a more focused dialogue and, ultimately, a more productive conflict resolution process. Complex issues of law relating to causation and damages can also be explored without the pressures of a formal hearing, and this too can facilitate principled and constructive negotiations.

Approach

My approach to mediation is eclectic, tailored to the unique circumstances and dynamics of each case. There is no one-size-fits-all formula. Every case is different and must be approached with a fresh perspective. That is why I spend time up front, before the mediation session, to learn about the parties, carefully review their mediation briefs, and speak with their lawyers. I think carefully about each case.

I strive to understand who is at the table, and what their driving motivations and interests are. Where appropriate, I will provide a neutral evaluation of a party’s case, and work with them and their lawyers to identify both risks and opportunities. Even where settlement may not yet be possible, mediation can be a valuable process which increases understanding and sets a foundation for principled resolution.

The Mediation Process

Mediation is a process that facilitates dispute resolution through open dialogue, problem-solving, and principled negotiation. The role of the mediator is to help the parties develop greater understanding so they can identify opportunities, assess risks, and find consensus to develop meaningful solutions to problems. Through this process, parties can take control of their own disputes and resolve issues fairly and efficiently without the need for court intervention.

A Flexible Framework

While every mediation is unique, there is a general framework that can be used, and adapted as appropriate, during the process to facilitate understanding, principled dialogue, and constructive problem solving:

Understanding the facts and issues in dispute

This involves a discussion with the parties and their counsel to learn their perspectives about what has given rise to the conflict and what is important to them. This can take place in a group or plenary session or privately in caucus. The goal is to develop a common understanding of the relevant facts and issues.

Identifying and assessing strengths, weaknesses, opportunities, and risks

This typically occurs in private caucuses. I meet with the parties and their counsel to probe their narratives and legal arguments and challenge assumptions and perspectives that may distort perceptions of strengths, weaknesses, costs and risks. The goal is to develop clear and forward-looking perspectives that will, in turn, support a principled negotiation process focused on maximizing value and satisfying underlying interests.

Identifying and articulating interests

Beyond their legal positions, parties always have interests – what they really value and want to realize. Identifying and articulating these interests is integral to the mediation process. This can be done privately in caucus as well as in a group or plenary session. The goal is for the parties to recognize what is really driving them and what they are fundamentally looking to satisfy.

Exploring options

Once interests have been identified and articulated, options can be explored. Parties are encouraged to explore a range of potential options. The goal at this stage of the process is to identify what is possible and broaden the universe of feasible solutions. This sets the next stage of the process – principled negotiation.

Principled Negotiation

With all of the groundwork done, the parties are now ready to negotiate. I may ask one party to make an offer; or I may propose a solution and gage the parties’ responses. Ultimately, I work with the parties and their counsel to arrive at a principled settlement that maximizes value and satisfies their underlying interests.

Settlement agreement or debrief

Where agreement can be reached, the lawyers will reduce it to writing for the parties to review, approve, and sign. Where no agreement is reached, I may bring the parties back together to identify what progress has been made – such as narrowing of issues – and consider how remaining gaps might be bridged in further discussions.

Fees

Because every mediation is unique, I have an open and flexible approach to fees. I aim to set a fee that is fair and reasonable, having regard to the particular circumstances of the mediation, including the complexity of the issues, the number of parties, the history and dynamics of the case, and proportionality between the cost of the mediation and the values at stake. Block fees as well as fees based on hourly rates are available.

FAQs

Are mediation sessions in-person or virtual?

Both in-person and virtual mediations are available. I believe that in-person offers a better opportunity to connect and negotiate; but if all parties prefer to conduct the mediation on-line, we can do so. I encourage parties and their lawyers to thoughtfully consider whether the same momentum and outcomes are as likely using virtual platforms. In my experience, people tend to connect better and feel more comfortable making important decisions when they are face-to-face.

When is the best time to mediate?

There is no rigid rule or one-size-fits-all answer to this question. Some cases are only ripe for mediation after the parties have had an opportunity to conduct examinations for discovery and get a better sense of the evidence. In other cases, it can make good sense to mediate even before a statement of claim has issued, to explore timely and cost effective ways to resolve a dispute before it takes on a life of its own. In every case, I aim to have an initial discussion with counsel so I can understand the context in which the mediation process is taking place, to ensure that mediation is appropriate.

Are opening statements permitted?

I generally try to avoid opening statements. There is a real risk that such statements will inflame emotions and set an adversarial tone. I do encourage gathering in a plenary or group session to begin the mediation, however, to set an appropriate atmosphere and engage the parties in the process. In my experience, a ‘hybrid’ process in which both plenary/group sessions and caucuses are used are most effective.

What if we run out of time?

It is always best to block off more than enough time for a mediation session; but it can be very challenging sometimes to predict just how much time will be required. If a mediation is going well but more time is needed, it is ideal to extend the session, so as not to lose momentum. If everyone is unable to do so, however, a follow up session can and generally should be scheduled for as soon as possible thereafter. My commitment is to work with the parties and their lawyers to reach a deal; and if more time is required to get there, I encourage the parties to invest in that.

Difference between mediation and arbitration

Mediation is a voluntary process. No party is compelled to attend. Moreover, the mediator has no authority to impose any solutions on the parties or make any orders. The aim of mediation is for the parties to craft a solution to their own problems, through creative problem solving and negotiation. The mediator’s role is to guide them through that process and help them find consensus.

Arbitration on the other hand is an adjudicative process which generally flows from a contractual obligation. The arbitrator has authority to hear evidence, find facts, and impose solutions and make awards and orders that are legally binding.

Are settlements made in mediation binding?

The mediation process itself is not mandatory (except where directed by Court order). The parties may thus choose to terminate the mediation session at any time; though it is expected that they will make a good faith effort to explore settlement through the process and not end it arbitrarily. When mediation results in a deal – negotiated by the parties, with the assistance of the mediator – the parties and their lawyers will reduce the terms of the agreement to writing, and the parties will sign off. Any such agreement is generally a legally binding contract between the parties. In this sense, mediation can produce binding results.

Contact

For mediation enquiries, please choose a service option and provide your email so we can connect with you.

EMAIL:

david@steinbergadr.com

CALL:

416-315-0404