Mediation Is Not a Trial: The Difference Between Advocacy and Argument

By: Simmi Sidhu B.A. Hons., LL.B., Mediator

For lawyers like myself trained in litigation, advocacy often means making the strongest possible case for a client's position. We are trained to identify weaknesses in the opposing case, challenge assumptions, test evidence and respond forcefully when the other side advances an argument with which we disagree. Those skills remain important at mediation. However, mediation is not a trial. The objective is not to establish who is right, persuade a judge that your position should prevail, or win the argument in the room. The objective is to determine whether there is a resolution that both sides can accept as preferable to the risks, costs and uncertainty of continuing the litigation. That distinction can become particularly important when negotiations become difficult.

Advocacy Is Not the Problem

There is sometimes a misconception that effective mediation requires counsel to be passive or conciliatory. It does not. Counsel should advocate for their clients. They should identify weaknesses in the opposing party's case, challenge unsupported damages claims, address liability concerns, explain the evidentiary record and make clear why their client's position is reasonable. The question is not whether counsel should argue. The question is whether the argument is advancing the client's interests.

There is a significant difference between saying:

“The evidence does not support that damages claim, and here is why.”

and saying, in substance:

“Your position is unreasonable and you clearly don't understand the case.”

The first is advocacy. The second may simply be conflict. Once the focus shifts from the merits of the dispute to the people in the room, the negotiation can quickly become about winning the argument rather than resolving the case. When this happens, it is often times imperceptible to the parties involved as rights based and positional arguing is now already ahead of the advocacy.

When Advocacy Becomes Argument

Mediation depends upon movement. Each side needs enough confidence in its own position to negotiate, but also enough recognition of litigation risk to consider moving away from that position. What makes advocacy most effective in a mediation is prior and advanced disclosure of evidence. This is particularly important on the plaintiff side. Without evidentiary support to justify the quantum of the offer made, it will not only challenge reasonability but often times it will frustrate the process. I encourage you to read “Mind the Gap: The Evidence Divide That Derails Personal Injury Cases”[i] by Shawn Patey, Lawyer and Mediator, who highlights the importance of this very issue.

When the process of negotiation becomes frustrated, personal conflict arises and will interfere with success at resolution. When counsel become argumentative with one another, clients can become defensive. Positions become matters of principle rather than matters of risk. A concession that might otherwise have been considered becomes difficult because making it can feel like admitting defeat. This is particularly counterproductive because the mediator is not there to declare a winner.

The mediator's role is to help the parties assess the strengths and weaknesses of their respective positions, identify the barriers to settlement and determine whether there is a path toward resolution. A useful question for counsel throughout the mediation is:

“Is what I am about to say likely to move this negotiation forward, or am I simply trying to prove that I am right?”

If the answer is the latter, it may be time to stop.

Counsel Also Have a Role in Managing Their Own Client

The same principle applies within the lawyer-client relationship. Mediations can be stressful. Clients may be angry, frustrated or disappointed by the opposing party's position. They may also have expectations about the value of their case that do not align with the evidence, applicable law or litigation risk. That is where counsel's role becomes particularly important. A lawyer's job is not simply to communicate the client's preferred number to the other side. Counsel should help the client understand what the evidence supports, what the opposing party is likely to argue, what risks remain and what the litigation may ultimately cost in both financial and personal terms.

The same applies on the defence side. Counsel should be prepared to explain the risks associated with maintaining a particular position, even where the client is strongly committed to that position. An insurer's decision-maker may have legitimate reasons for taking a firm position, but firmness should not become an inability to reassess.

Mediation is an opportunity to test those assumptions.

Reasonableness Does Not Mean Weak Advocacy

There is also an important distinction between being reasonable and being unprepared. A lawyer does not serve a client by making an artificially low or high offer simply because the mediation process calls for compromise. A settlement position should have a foundation. If a plaintiff seeks a particular figure, counsel should be able to explain how it is supported by the evidence. If a defendant maintains that a claim has little or no value, counsel should be able to identify the evidentiary and legal basis for that assessment. The mediator can then work with the parties to test those positions. That process is far more productive than trading increasingly entrenched numbers without explaining what would cause either side to move.

Do Not Waste the Last Opportunity

The closing stages of a mediation can be particularly important. After hours of negotiation, parties may be exhausted and frustrated. Sometimes the gap between the parties remains too large to bridge. That does not mean the mediation has failed as a process. Even where no settlement is reached, the parties should leave with a clearer understanding of the other side's position, the risks that remain and what may need to change before settlement becomes possible.

That is why the mediator's closing is important. It should not become another opportunity for counsel or clients to revisit personal disagreements, deliver parting criticisms or establish who was right about what happened during the day. Once the mediation becomes a forum for one final argument, the participants can leave more entrenched than when they arrived. A constructive closing does something different. It reminds the parties of the unresolved issues, identifies the risks on both sides and leaves the door open to further discussions. A mediation does not have to end with a signed settlement to have been useful.

The Negotiation Does Not End When the Mediation Ends

An unsuccessful mediation should also prompt counsel to return to the litigation strategy. What did the mediation reveal about the opposing party's case? Did the evidence expose weaknesses in the client's own position? Has the assessment of damages changed? Has the litigation risk changed? Also, importantly, should the parties reconsider their formal offers to settle?

Rule 49 of the Ontario Rules of Civil Procedure is an important part of the settlement framework. Its cost consequences can become significant where a party obtains a result at trial that is more favourable than an applicable offer to settle. To this end, we must remember the 2025 Court of Appeal decision in Barry v. Anantharajah[ii]. In this case, the defendant insurer was Aviva whose client was Anantharajah. Aviva maintained throughout the litigation and negotiation stages a zero dollar offer and a dismissal without costs. At trial the judge awarded the plaintiff $16,160.50 in net damages and $300,000.00 in costs. The primary basis for this cost awards rests in the defendant’s rigidity and failure to make a reasonable Rule 49 offer. I encourage you to read “The Price of Hardball: ONCA in Barry v. Anantharajah on Costs and Proportionality”[iii] also by Shawn Patey, who eloquently examines the decision and offers strategies for both plaintiff and defence lawyers when contemplating preparing for negotiations. Ultimately, the courts will consider the circumstances and conduct of the litigants when exercising their discretion in relation to costs.

The lesson is that settlement analysis should continue even after a mediation ends without resolution. A failed mediation is often a signal to reassess the case with the information gained during the process.

Leave the Fight at the Door

Litigation requires lawyers to fight for their clients. Mediation requires lawyers to do something more nuanced: fight for their clients without losing sight of the reason they are in the room. Strong advocacy and constructive negotiation are not opposites. Counsel can challenge the evidence, defend their client's position and negotiate firmly without turning the mediation into a contest of personalities. The best mediation advocacy is not necessarily the argument that wins the room. It is the advocacy that helps the client make an informed decision about whether settlement is preferable to continuing the fight. Sometimes the most effective thing counsel can do is not make another argument at all.

[i] Shawn Patey, “Mind The Gap: The Evidence Divide That Derails Personal Injury Cases,” 30 Sept. 2026 https://shawnpatey.substack.com/p/mind-the-gap-the-evidence-divide?utm_source=publication-search

[ii] 2025 ONCA 603 (CanLII), https://www.canlii.org/en/on/onca/doc/2025/2025onca603/2025onca603.html?resultId=03baf38f1c6e414db39f25a86f7b7cbe&searchId=2026-09-30T11:27:52:239/fbfeb11066b74da3987fb5d2ffb458a5

[iii] Shawn Patey, “The Price of Hardball: ONCA in Barry v. Anantharajah on Costs and Proportionality,” 30 Sept. 2026 https://shawnpatey.substack.com/p/the-price-of-hardball-ontario-ca?utm_source=publication-search#_ftn1