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com 1
Drafting Pleadings
with Mediation in Mind:
Litigating in the Enlightened Age of Mediation

Igor Ellyn, CS, QC
Evelyn Perez Youssoufian
Ellyn Law LLP, Toronto

www.ellynlaw.com

2009 Igor Ellyn and Evelyn Perez Youssoufian.
May not be reproduced without written permission.
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Our overriding theme

Good advocacy begins with excellent and
persuasive pleadings.
Excellent and persuasive pleadings
require an insightful appreciation of the
litigation process and the new Rules of
Civil Procedure which come in to effect on
January 1, 2010.
Persuasive pleadings must, more than
ever, be drafted with mediation in mind.
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Amendments to the Rules of Civil
Procedure J an. 1, 2010 - #1
Nov. 2007 - Civil Justice Reform Project under
the able chairmanship of former Ontario
Associate Chief Justice Coulter A. Osborne

Recommended better and less expensive access
to the Courts with more mechanisms to promote
early settlement.

Most of the amendments make it easier to take a
case off the litigation track and put it on a
mediation track.
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Amendments to the Rules of Civil
Procedure Mandatory Mediation - #2
All cases in Toronto, Ottawa and Windsor will be
subject to mandatory mediation except R.
24.1.04(2) except for

Estate, Trust and Substituted Decisions Act cases
Insurance Act, s.258.6 mediation cases if mediation took
place less than a year before first defence
Commercial List cases
R. 64 Mortgage Actions
Construction Lien Act action except trust claims
BIA actions

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Amendments to the Rules of Civil
Procedure Mandatory Mediation - #3

All simplified rules cases in Toronto, Ottawa and
Windsor are subject to mandatory mediation.

Ceiling for simplified rule cases increases to
$100,000.00

Flexibility as to timing of mediation: R.24.1.09(1): can
take place up to 120 days after 1st defence

Mediation can also be postponed if necessary.

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Oral and Documentary Discovery
R. 29.01: Counsel must agree and update, a
discovery plan, including when Aff. of Docs will be
exchanged. Failure to agree may result in a costs
penalty.

R. 31.05.1(1): 7-hour time limit per party for oral
discovery.

Simplified Rules cases: 2-hours total discovery
regardless of number of parties.



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You know there will be a mediation,
so plan for it.
Its nearly a certainty that there will be a
mediation in your case unless

The case settles very early
The plaintiff gives up
The defendant becomes insolvent
There is so little at stake that it wasnt worth
suing anyway
The parties have a business or personal reason
to stop litigating

Your pleading is the first step in the preparation
of your mediation memorandum

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The Pre-Trial Conference
Another form of mediation
New R.50 has been revamped.
All R.76 cases require a pre-trial conference
All other cases must all be pre-tried with 90 days after
setting down for trial
Treat the pre-trial conference like a mediation
Most judges are more mediation conscious than they
were a decade ago
Preparation for the pre-trial conference involves a good
pleading; a thoughtful, succinct, well-organized
memorandum and brief
A good pleading is a head start on a good pre-trial memo
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A new approach to litigation

How is your case most likely to end?
Trial? Appeal? - Maybe
Negotiated Settlement? Probably
Negotiated Settlement at Mediation Very
likely.
How you think about mediation will affect
your approach to dispute resolution.
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Pleadings: An important marketing tool
You never get a second chance to make a
first impression: it applies to lawsuits too!
Who is your target audience when drafting
the Claim or Defence?
Trial judge? Yes, but only about 3% of the
time. Court of Appeal, even less.
But there are about 25 or more other people
you should be thinking about . . .
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Important people to persuade
with a good Claim or Defence
Other lawyers, law clerks and students in your firm
Your client
Members of your clients family
Members of your clients corporate management
The clients in-house counsel or corporate solicitor
Your referring lawyer
The opposing party or parties
Members of the opposing partys family
Members of the defendant corporations management
Opposing partys counsel and others in her/his firm
The defendants insurance adjuster and insurance claims manager
But thats not the whole list . . .
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Important people to persuade
with a good Claim or Defence #2
The mandatory mediator at a pre-discovery mediation
The Master at a motion or case conference
The judge or master on pleading or particulars motions
The judge or master on a motion for summary judgment
The master on a post-discovery refusals motion
The settlement conference or pre-trial conference judge
The private mediator at a post-discovery mediation
The judge at in-trial settlement conference
The trial judge 2 to 3% of the time
The judges of the Court of Appeal 1% of the time
24 potential readers even if there is only one per group
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How to persuade people who can be
instrumental to a great result in your case
A marketing approach to pleading
Write well. Succinct sentences. Clear thoughts. Single
thought paragraphs. No passives. Drop that
Follow the Rules of pleading. Read Perell J.s masterful
article on Essentials of Pleading
Dont plead evidence. Dont plead argument.
Know the test you have to meet to prove your case.
Dont overstate your clients case.
Eye appeal. Fonts. Margins. White space. spaces.
Proofread. Edit ruthlessly. Have someone else proof.
Remember, youre not only promoting your clients case,
You are also promoting yourself as advocate.
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Examples of bad pleadings

Lack eye appeal due to fonts, set up, lack of white
space, margins and paragraph space
Too wordy. Contain spelling or grammar errors
Vague, unparticularized and difficult to follow
Contain more than one thought per paragraph
Exaggerate or misstate facts
Fail to disclose a reasonable cause of action
Raise remedies without pleading elements

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More examples of bad pleadings


Allegations just to anger opposing parties (unless true)
Alleges without particulars or unprovable facts
Alleges fraud which makes liability insurance
inapplicable
Claims damages for pie in the sky amounts
Claims punitive damages where there is no
reprehensible conduct
Claims punitive damages for unreasonable amounts


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Your client doesnt want to go to trial
Even client who will never settle doesnt want to go trial

Some cases will still go to trial but not many

A 2008 US study of > 2300 cases found >60% of refused
offers had worse results at trial

Focus on getting best result not on reaching trial

Early preparation (pleadings, law, documents, witnesses,
experts) could mean less compromise at mediation
Intimidate with good advocacy and early preparation

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Preparation and Investigation
before Pleading
You cant knock off a good Claim in 5 minutes
Get the full story in detail from the client
Speak to potential trial witnesses
Hire a private investigator sooner where appropriate
Have your client prepare a chronology of key events
Press your client to provide all documents
Consider what documents are likely to exist
E-discovery is crucial get emails and computer files
Organize and read the documents your client sends
Identify the factual and legal issues in dispute
Do an advocates chronology

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More preparation for pleading
Identify the remedies your client hopes for
Identify what can realistically accomplished
Research applicable issues of law now not before trial
Balance your clients hopes with what is achievable
Identify causes of action and the right test
Identify applicable statutes, rules and maxims
Identify all defences, incl. 2-year limitation periods
Consider Crossclaims, Counterclaims and Third Party
Review precedents - but dont accept them uncritically
Build up your case and weaken the opponents case
Dont forget to adhere to principles of civil advocacy
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Quotable quotes about mediation
Good preparation opens the mind to
possibilities and possibilities are the
lifeblood of mediation. S. Mutch,
Preparing an effective mediation brief
makes sense The Lawyers Weekly, Vol.
22, No. 44, March 28, 2003, p.13

Mediation is a cornerstone of the justice
system in this province. Ontario Chief
Justice Warren Winkler, April 21, 2008.
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Conclusion
Our time is up.
Thank you to Evelyn Perez for enlightening on the new
Rules relating to mediation.
Thank you to Justice Paul Perell for permitting me to
share his article on Essentials of Pleading with you.
Thank you to Master Don Short for his 2003 inspiration
to think about drafting pleadings with mediation in mind.
Thank you for your attention.

Igor Ellyn Evelyn Perez Youssoufian
www.ellynlaw.com
2009 Igor Ellyn and Evelyn Perez Youssoufian