คาสิโนออนไลน์ ฟรีเงิน_ไปคาสิโนปอยเปต_คาสิโนประเทศกัมพูชาhttps://www.google.com/Fri, 02 Nov 2018 14:58:24 -0700Weebly<![CDATA[THE KIDS ARE ALRIGHT*]]>https://www.google.com/Wed, 27 Dec 2017 01:10:18 GMT/859/blog/the-kids-are-alrightPicture
 End of year. Time to reflect and take stock. Time to recharge and reset.
What single work-related event or experience stood out for you in 2017? A colleague posed that question at a recent holiday party. I could have mentioned any number of challenging files I mediated, the thought-provoking programs I attended or the many interesting personalities I encountered through my work.
But, what immediately came to mind was a late winter day in March when I addressed a group of law students at the Western University Law School.
Many months before, I had received an email from Nathalie Gondek, a second-year law student and Student Coordinator of its Dispute Resolution Centre (DRC). Nathalie explained in her note that every year the DRC hosts a series of speaker events on alternative dispute resolution (ADR) to enable students to gain a practitioner's perspective and, due to my expertise in mediation, they were hoping I’d agree to speak at their Spring Lunch and Learn about my more interesting mediation experiences, particularly in the field of complex commercial disputes.
March in London, Ontario? I imagined driving through white outs and snow drifts along the 401.
A quick search of the law school’s website provided the following information about the DRC:

  • Established in 1993 by two law school professors to provide training to student mediators and free mediation services for the London-Middlesex County
  • Eight trained student interns assist two coordinators with mediations and other programming
  • Intern positions are filled through a competitive application process in the fall of each year
  • Student interns mediate a wide range of disputes including breach of contract, debt, roommate and landlord-tenant conflicts, neighbour disagreements and employment issues
  • In partnership with local youth and employment groups, the DRC delivers conflict resolution training workshops 
  • In 2014, the DRC launched the 810 Court Project, with DRC interns attending the London courthouse to offer mediation as an alternative to parties seeking or defending peace bonds
  • In 2016, the internship program was expanded to include training and community practice in negotiation on behalf of clients, making it the most intensive ADR clinic offered by an Ontario law school
This was a program with a robust history making a meaningful contribution to the London community. I was intrigued. I relished the opportunity to share my passion for ADR with a group of law students. I accepted the invitation.
I’m a Western Law grad (BA, 1982; LL.B., 1985) and it had been years since I’d been back to campus. Aside from a work-related visit to London in 2015, where I didn’t have time to visit the law school, it had probably been 25 years since I last visited the law school. So, fittingly, I treated the visit as a proper pilgrimage. I took the train and eschewed a cab for my feet for the 5.5 kilometer distance from the station to the law school, savouring old haunts along Richmond Street (The Ceeps, Joe Kools) and taking in old and new buildings on campus, all sharing the distinctive limestone construction that defines Western’s look.
I made my way to the DRC office located in a new wing of the law school where I was greeted by Nathalie and the program’s Assistant Student Coordinator, Craig Gilchrist, and introduced to Co-Directors, Margaret Capes and Doug Ferguson.  After lunch at a campus pub, generously covered by my hosts, it was time for my presentation.
The many promotional posters plastered around the school left no doubt that my presentation would be delivered in Room 51. The last time I was in Room 51 was to write my labour law final in 1985.
The questions from the students kept me on my toes, ranging from the challenges of dealing with self-represented litigants, to managing power imbalances to the state of mandatory mediation under the Ontario Mandatory Mediation Program. But, one student’s questions gave me pause: “What aspects of your law school experience inspired you to pursue a career in ADR?” And then, the clincher: “What courses in ADR were offered back then?”
My inner voice spoke to me: There was nothing about my law school experience that prepared me or led me towards a career in ADR. I took a moment to gather myself. And then, I described the law school learning landscape that I was exposed to in the early to mid-1980’s, which certainly didn’t include any mention of “interest-based negotiation,” “Alternative Dispute Resolution” and “ADR”. There were no courses offered in “mediation” and no clinical opportunities to conduct mediation. The closest reference to ADR that I could recall were the large number of Western law professors who served as labour arbitrators to supplement their income. That was it! I explained that my interest in ADR grew organically out of my early days as a litigation lawyer and my disillusionment with the adversarial civil litigation system, particularly its costly, inefficient and uncertain outcomes, and a commitment to helping clients find solutions to their disputes that were cost-effective, timely and responsive to their interests. There was silence. On one hand, I felt much like a pioneering explorer; on the other hand, I felt old.
I took my first 40 hour courses in mediation in 1994 and I began mediating before the year was out. Back then the field of ADR felt new, fresh and wide open. There were few of us in Ontario who dared to embark on a career in the field, offering training, consulting and mediation services. But, for those of us that had the passion, vision and determination, this was the start of a new movement and these were exciting times.
More than 20 years later, hardly a week goes by without an inquiry about how to go about starting a mediation practice. I take the time to respond to each inquiry, often over coffee. I am thrilled with the growth of the field of ADR, and mediation in particular, and I am happy to share my experience, interest and passion in the same way that a few others did with me when I was finding my way in the field.
I was recently interviewed by Advocate Daily to share my thoughts and tips on starting a mediation practice. While I acknowledge in the article that the field is now crowded, I’m optimistic that opportunities abound for the passionate and creative.
Why the optimism? Two things: ADR is now part of our everyday lexicon and today’s youth are being immersed in its principles and values. We talk naturally about “interests” when we negotiate and most of us strive for “win/win” solutions to our disputes. Our kids are growing up in a world that has embraced the vocabulary of collaborative problem solving. My teenage kids are being taught “conflict resolution skills” in school and entire schools take “mindful moment” breaks together to get centred, present and in-tune with their feelings and needs and those of their peers. Many Canadian institutions of higher learning offer training and academic programs in negotiation and dispute resolution, from continuing education programs at local community colleges (see, for example, Seneca College, Durham College and Centennial College) and universities (see, for example,  York University, University of Toronto  and University of Waterloo), to masters programs in conflict management (Royal Roads University) and ADR (Osgoode Hall), to a multitude of options in Ontario law schools ranging from specialized options (University of Ottawa and Osgoode Hall) and electives in ADR (Queens University), to grass roots student clubs (University of Toronto) and mediation clinics that serve the community (Osgoode Hall and Western University).
As one year closes and another opens, it is my pleasure and practice to make a charitable donation in honour of clients, colleagues and friends. This year I have expanded the net and made a generous donation to Western Law School, to be applied towards ADR related initiatives, to honour the next generation of mediators and dispute resolvers.
Happy New Year!

* With a nod to the seminal song by The Who (copyright 1965), written by Pete Townshend as a tribute to the Mods, a fashion trend-sending and rebellious British youth movement that started in London, England in 1958.

<![CDATA[JOINT SESSION: A TALE OF TWO MEDIATIONS]]>https://www.google.com/Sat, 31 Dec 2016 05:46:01 GMT/859/blog/joint-session-a-tale-of-two-mediationsPicture
It’s the season for story-telling, when we get together with friends and family, sit around the fire and share reflections of the past year.  

In this my last post of 2016, I share a tale of two wrongful dismissal mediations conducted weeks’ apart. While both ended in settlement, the road to resolution was very different. In one, the mediation was conducted completely in caucus. In the second, we started and ended the mediation with a joint session.
While study results point to the value of the joint session, mediation is not a one size fits all proposition. Ultimately, the needs and comfort level of the participants should guide the mediation process.

In the first mediation, two factors – timing and the parties’ needs – led me to the conclusion that a joint session would hinder rather than help the negotiation process.
I generally like to introduce the mediation process in a joint session. Even those that are resistant to a joint session are amenable to my introduction, recognizing its efficiency and value in establishing a collaborative tone and purpose. It’s during this opening session that I outline my role, the unique opportunity for self-determination that mediation presents and the ground rules for discussion (notably, confidentiality). That portion of the session concludes with the signing of the Agreement to Mediate.
Unfortunately, on this day the employee (let’s call him “Jim”) arrived thirty minutes late. As we awaited Jim’s arrival, I took stock of the situation. Having worked with the employer’s counsel previously, I knew he was not a proponent of the joint session. As well, the employer (we’ll call him “Bob”) was becoming increasingly agitated about Jim’s tardiness; if Bob had any inclination to sit through my introduction in the Jim’s presence, his patience was wearing thin with each passing minute. Both Bob and his counsel were anxious to use the waiting time productively. After consulting Jim’s counsel (who was also in waiting mode), I delivered my introduction privately to Bob and his counsel.
The waiting time had been used productively to introduce the mediation process and to allow Bob to do some needed venting regarding his reasons for terminating Jim. Just as importantly, it proved to be an effective means of deflecting the Bob’s attention away from the Jim’s lateness and refocusing him on the purpose of the day and the issues to be discussed.
When the Jim arrived, I caucused with him and his counsel to review the process. He offered a sincere apology for his lateness, which I subsequently conveyed to Bob and his counsel. In caucus, Jim shared concerns about how he was terminated. I asked him whether he’d value an opportunity to share his feelings with Bob. Jim was clear, he had no interest in addressing the Bob face-to-face.  
I will confess that despite the parties’ resistance, whispers of “joint session” wafted in my ears. Perhaps, I thought optimistically, a joint session would help purge and address underlying process and psychological needs that each party had shared in caucus regarding the termination, leading to a more satisfying outcome. While this may have been the right call on another occasion where, for example, the parties had expressed some interest in meeting or there was the potential for an ongoing relationship, it wasn’t the case here. The late start combined with the parties’ clear desire to avoid direct dialogue convinced me that, despite what I thought might be best for them, the parties’ needs would be better served without a joint session.
The second mediation took place two weeks later.  In reviewing each party’s mediation brief in preparation, I learned that they had worked together for 20 years in a small community and had enjoyed a close friendship. Their wives had also shared a personal relationship. The two families had grown together, sharing milestone events. People in the community had been gossiping about the dispute. There was a convergence of strong emotions (including anger, resentment and hurt feelings) and a damaged friendship . I began thinking about how a joint session might help to restore elements of a relationship and lead us to settlement.
I arrived at the mediation early and invited counsel to a private meeting. I shared with them the impressions I had gleaned from the parties’ briefs. Counsel were comfortable with me doing my introduction in a joint session, subject to client approval. But, they preferred to dispense with opening statements, fearing they might harden positions. They were also comfortable with me using the joint session to seek clarification on key information (including the value of the plaintiff’s compensation package and his efforts to mitigate by seeking alternative employment).
Counsel conferred with their clients and gave me the thumbs-up for my process plans. But, before delivering my introduction in joint session, I took a few minutes to meet separately with each party, together with their respective spouse and counsel.  I explained how I planned to use the joint session.  With each group, I detected pangs of uncertainty about the mediation process and concern about the awkwardness of having to sit across the table from estranged friends. However, the knowledge that each side shared this reticence helped to put everyone at ease. I could also sense a strong bond between these families buried beneath the conflict and a mutual desire to put this event behind them.
When we got together for the joint session, the parties and their spouses greeted each other cautiously but warmly. A good start! I delivered my introduction, clarified a few factual discrepancies and invited questions and comments. There was an awkward silence before the employer (we’ll call him “Alan”) remarked that he “appreciated the opportunity for the meeting and was hopeful that a resolution could be achieved so everyone could move forward.” The employee (we’ll call him “Bert”) and his wife nodded approvingly; and, Bert responded that he was looking forward to “putting this all behind him.” While the exchange could be construed as innocuous, I believe it helped set a positive tone and pave the way for a productive mediation.
After five hours of mediation, we emerged with signed Minutes of Settlement. As we prepared to say our goodbyes, I encouraged the parties to exchange handshakes. What I witnessed next was a first for me in twenty years of mediating. The parties and their spouses exchanged hugs! There was also a misty eye or two. It was a special mediation moment!  
There is no process template for a successful mediation. A skillful mediator possesses the skills, tact and experience to guide a process that is best suited to the participants’ needs and comfort level.
In reflecting on these two success stories, careful forethought and preparation went into deciding whether to use a joint session and, in the case of the second mediation, how to best use it.
While I value the use of the joint session, it’s not always the best fit. Its appropriateness will depend on several factors including the nature of the relationship between the parties (length, history and future prospects), the value of hearing directly from a party to assess credibility and how that person might perform as a witness at trial, and information exchange practicalities (for example, the value of exchanging large amounts of data or building consensus in real-time). Whether carried out through joint or caucus sessions, or a combination of the two, the objective of any mediation process should be to ensure it addresses the unique needs of the participants. 

<![CDATA[THE MINDFUL MEDIATOR]]>https://www.google.com/Tue, 18 Oct 2016 07:00:00 GMT/859/blog/the-mindful-mediatorPicture

​This past July my wife and I had the opportunity to hike a portion of the Camino de Santiago in Spain. For eight days we walked an average of 25 km per day in 40-degree Celsius heat. While the experience was physically challenging, it was spiritually rejuvenating and rewarding.
On our way out of Torres Del Rio we passed a rock garden where fellow “perigrinos” (“perigrino” is the Spanish word for “pilgrim”) had left messages on scraps of paper wedged under stones. One note caught my attention: “In the moment, take a moment.”
Disconnected from work, my iPhone and the frenetic pace of Toronto, I was immersed fully in the moment.
I have written in the past about how “being present” (or, in the moment) is the single-most important ingredient I bring to a mediation. Pre-mediation planning and a thorough review of the parties’ materials should be central to every mediator’s preparation. What separates good mediators from the great ones is the ability to be fully engaged, focused, connected and responsive to the fluid needs of the participants.  Accomplishing that requires mindfulness.
In this piece, I explore what it means to be mindful and the important role it plays in my mediation practice.  
Jon Kabat-Zinn defines mindfulness as “[…] awareness that arises through paying attention, on purpose, in the present moment and non-judgementally.”
In their book Restorative Justice Dialogue: An Essential Guide for Research and Practice, Dr. Mark Umbreit and Dr. Marilyn Armour comment on the four qualities that therapist and mediator Lois Gold identified to describe the mindful mediator.
Being centred
Umbreit and Armour suggest that mediators need to “clean away the clutter” from their minds before they can listen and connect fully. Joel Lee, a law professor at the University of Singapore, suggests in his article, Mindfulness and Mediation, that parties can sense when a mediator is emotionally unbalanced or stressed.
Mediators are no different than anyone else. We struggle with managing work/life balance. But, when parties arrive at mediation they deserve and expect a mediator who is fully attentive and focused on their needs.
When I lose my “centre”, I try to take time out to reflect, recharge and re-set so I’m equipped to deliver my best self at the mediation table. A brisk walk, a favourite yoga pose or meditative deep breathing help bring me back to my centre.
Being connected to one’s governing values, beliefs and highest purpose
During my time as a litigator, I often thought that my best qualities were underutilized. While I enjoyed the challenge of being an advocate, I had discovered that my problem solving skills and passion for helping others through conflict was the perfect fit for mediation practice.
A common trait amongst mediators is a commitment to helping others and making the world a better place, one dispute at a time. The fulfillment I derive from empowering those in conflict to work towards resolution energizes and sustains me and I strive to bring that positive energy and authenticity to every mediation process I manage.
Making contact with the humanity of the participants
The late Dr. Stephen Covey, author of The 7 Habits of Highly Effective People, once wrote, “[…] most people listen with the intent to reply, not to understand.” However, in order to “deeply understand another human being,” Covey suggests we must “seek first to understand, then to be understood.”
The mindful mediator values the power of active and empathetic listening to establish a human connection with the participants. It is only through establishing this connection that the mediator can gain the participants’ trust and acquire insight into and a deeper understanding of their hopes and concerns arising out of the conflict.
Being congruent
Umbreit and Armour define “congruence” as being emotionally honest with yourself so “there is a consistency in your words, feelings, body and facial expressions and actions.” Consistency can only be achieved when your ideal self is congruent with your actual behaviour. A mediator who promotes the importance of active listening but doesn’t model that behaviour through their own actions is not practicing mindfully. 
Jumping from moment to moment has become the new normal. The most popular apps on our phones are those that let us scroll through snapshots of moments quickly and without much thought. But, can we truly be in the moment if we allow ourselves to be distracted by the incessant beeps and buzzes of cell phones and competing priorities?
My experience on the Camino reminded me of the importance of dialing back and experiencing each moment – both as a means of recharging and recalibrating and as the basis for affirming that a commitment to mindfulness rests at the core of my mediation practice. I don’t have it all figured out yet, but I continue to mindfully work at it.

* Photo credit: Jason Crystal catches me mindfully taking in the sunset on Lake David, Killarney Provincial Park, Ontario, September 2016.

<![CDATA[REALITY TESTING: THE RIGHT DOSE AT THE RIGHT TIME]]>https://www.google.com/Wed, 31 Aug 2016 14:42:50 GMT/859/blog/reality-testing-the-right-dose-at-the-right-timePictureสมัครคาสิโนออนไลน์ฟรี
No one begins a dispute thinking they might be wrong. This sense of moral and legal certainty is usually coupled with high expectations. As a result, parties can arrive at mediation inherently entrenched in their beliefs about the strength of their case, aiming for outcomes that are unrealistic and often unachievable. This mindset can present a significant obstacle to productive negotiation.
Reality testing can be used by a mediator to deal with this obstacle by subtly adapting expectations to reality. However, there are challenges to using this tool effectively, particularly when the beliefs and expectations of parties are deeply entrenched.
In this blog I explore the challenges of reality testing and discuss how this tool can be used effectively to encourage parties to adapt their expectations and meet on more reasonable ground.
It is a given that parties will arrive at mediation with expectations. What's important is being able to identify and understand the source of an expectation in order to respond to it productively.

Amy Lieberman, experienced mediator and Executive Director of Insight Mediation Group, has created two non-exhaustive lists of possible sources of influence, from the perspective of both the plaintiff and defendant in litigation.
For the Plaintiff
  • legal counsel’s analysis
  • information on the Internet
  • statutory damage limits
  • pressure from significant others
  • amount in a demand letter
  • pre-mediation offers
For the Defendant
  • legal counsel’s analysis
  • past experience resolving or litigating similar claims
  • actuarial information about jury verdicts and settlements of similar claims
  • costs of defence
  • past experience with plaintiff’s counsel
  • pre-mediation offers
With the amount of information available online, particularly through research and social media, parties are better informed than ever before. In my mediator role, I am mindful of this new reality and equipped to debunk a party’s attachment to someone else’s story that might be contextually different or completely unrelated to their circumstances.
From my experience, expectations formed through legal counsel’s analysis can present the most sensitive challenge to reality testing. A party justifiably places their trust in the experience and expertise of counsel in valuing the strength of their case, forecasting their chances of success, outlining the costs of litigation and reviewing the implications of losing. Any conversation between counsel and client about their likelihood of success can create unrealistic expectations, even if unintended. And, while not all counsel are equal when it comes to doing a risk analysis, leading a party and their counsel through a reality testing exercise that leaves counsel looking foolish and their client questioning their judgement is of no value to anyone. The key to any effective reality testing is proceeding tactfully and measuredly to enhance - rather than detract - from the negotiation process.
Fairness and neutrality are integral to the mediator’s role. Before the mediation begins, parties must trust that the mediator possesses these qualities. If done inappropriately, a reality test can cause a party to perceive the mediator as lacking both. Dave Rudy, a mediator with over 25 years of experience, writes that a perceived lack of neutrality can equate to an actual lack of neutrality if not diffused. In his article, Mediator Techniques Abused: Avoid These at All Costs, Rudy notes how the mediator can be perceived by one party as an advocate for their opponent during reality testing. This is especially so when the reality testing occurs in caucus (as is often the case), as parties may feel singled out by the mediator. It is important for the mediator to explain that the “devil’s advocacy” component of the reality test happens in the other room as well. When done fairly, a reality test shows each side the challenges in the theory of their case and opens parties up to the idea of reframing their expectations.
Not every party is receptive to reality testing. In some circumstances, I would agree with Peter Phillips, Director of the ADR program at New York Law School, when he describes the position of the mediator providing a reality test as an “unwelcome and vulnerable posture.” Phillips points out the following risks of reality testing:
Being Perceived as Rhetorical
A mediator can come across as rhetorical if they do not explore the answers given during reality testing. A rhetorical question will fail to elicit information about the party’s expectations. This can be avoided by listening to the answers provided so that they can be explored further in a way that is tactful but also effective for gathering information and challenging each party's theory of the case.
Causing a Party to Feel Coerced
A mediator must maintain trust with all parties; overzealousness can compromise neutrality. Phillips points out that even a “tone of voice or an arch of a brow” can suggest that there are right and wrong answers. Remember: Reality testing is an exercise in listening, clarifying and reframing to allow each party to self-identify the risks and weaknesses in their case.
A reality test is not an opportunity for the mediator to simply offer their own evaluation of the case (unless that is what the parties want and ask for expressly). As Phillips reminds us, parties already have legal counsel for that job. The goal is to provoke a change in the parties’ assessments and assumptions by offering fresh perspectives and information. The mediator must avoid interfering with the lawyer’s role during a reality test. Before beginning, I will often discuss with counsel the types of reality testing questions I will be asking to ensure they are comfortable with my approach and intentions.
Deflating high expectations at the mediation table is critical to creating a negotiation landscape that is conducive to settlement. When reality testing is done right, the mediator can temper expectations and reveal to parties the flaws or weaknesses in their positions and light the road to resolution.

Photo credit: "Expectations vs. Reality" (CC BY-SA 2.0) by Kristian Bjornard (bjornmeansbear). 

<![CDATA[STUDY: RESULTS POINT TO VALUE OF JOINT SESSION]]>https://www.google.com/Sun, 19 Jun 2016 04:22:21 GMT/859/blog/study-results-point-to-value-of-joint-sessionPicture
The use of the joint session in mediation has been a hot topic of study and debate in recent years. I have weighed in on the discussion. In June 2015, I questioned whether the joint session was a help or a hindrance and then in December 2015 I revisited the debate to offer my thoughts on why the joint session remains an important part of the mediation process. In November 2015, I was interviewed by the Law Times for a piece on the use of the joint session.

On June 7, 2016 I had the pleasure of participating in a program titled Joint Sessions and Opening Statements in the Mediation of Civil Disputes. The program was hosted by the Ontario Bar Association (OBA) at their Toronto Conference Centre. The format for the program was a panel discussion. Mitchell Rose did a great job chairing the program and moderating the panel discussion. Joining me on the panel were Alicia Kuin, Barry Fisher and Suzana Popovic-Montag. The panel discussion focused on the following topics: the use (or non-use) of the joint session in our mediation practices and why; whether the amount of time budgeted for a mediation impacts our decision to hold a joint session; the value of opening statements from counsel and the qualities of an effective opening; and, in order to satisfy the always popular “professionalism component,” the types of behaviour that could be construed as unethical during a joint session. We had a lively discussion and many excellent questions from attendees. It became abundantly clear that while mediation style influences the decision to conduct a joint session, cultural norms in various practice areas play a significant role in determining the extent to which joint sessions are conducted.

​Over the past year, I have been studying the use of the joint session in my mediation practice and the OBA program offered a perfect platform to present my preliminary observations and findings.

​In conducting the study, I set out to examine and measure the following:
  • frequency of use of the joint session
  • how the joint session is utilized
  • how type of dispute impacts the use of a joint session
  • to what extent the use of a joint session impacts the duration and outcome of mediation

I have reported my preliminary observations and findings in a paper titled Opening Impressions: Study of the Use of the Joint Session in Mediation, which I shared with those attending the program.

While I encourage you to read the full report, the following are my key observations and findings:
  • The duration of mediation is not affected by the use of a joint session.
  • Mediations that had some form of joint session and lasted longer than four hours enjoyed a much higher settlement rate (90.9%) than those mediated strictly through caucus and shuttle negotiation (57.4%).
  • Overall, mediations that had some form of joint session settled at a higher rate (72.7%) than those that did not have a joint session (69.2%).
  • Cultural norms do, in fact, play a significant role in determining the extent to which a joint session is used.

The presentation of my study at the OBA program has sparked interest from within the legal and mediation communities and some activity on Twitter.

I intend to continue monitoring my mediation practice using the criteria established for the study while, at the same time, exploring ways to enrich the study by refining the methodology and/or expanding the categories for data collection. I welcome your input and encourage further debate!

<![CDATA[HOW DOES YOUR MEDIATOR ADD VALUE?]]>https://www.google.com/Tue, 31 May 2016 03:01:35 GMT/859/blog/how-does-your-mediator-add-valuePicture

Most of us don’t go to the symphony to watch the conductor or to a sporting event to see the referees in action, but imagine the chaos without their participation. In the same vein, you’re unlikely to have a productive mediation without an effective mediator. So, how can a mediator add value to your settlement discussions? Here are five ways, based on practice experience and feedback received from disputants and counsel over 20 years of mediating.

1. Setting the Stage
Years ago my wife and I hired a painter to paint our house. The job took a week. The painter spent the first three days scraping, filling and sanding. On day four the house was ready to be painted. An effective mediator invests time before mediation getting to know the file – the players, the personality dynamics, the key pieces of evidence needed to determine the strengths of each party’s case. Whenever possible, I use pre-mediation discussions to learn about the dispute and the perceived challenges of achieving a resolution. I request mediation briefs well in advance to familiarize myself with each side’s view of the facts and issues and to allow time for follow-up with counsel on key pieces of information that may be unclear or missing.
2. The Consummate Host
Many disputants arrive at mediation unfamiliar with the process, apprehensive about their participation in it and fearful of confrontation with the other side. The mediator must quickly gain their trust, by creating an environment that is welcoming, safe, accessible and inclusive, and deliver a process that gives everyone a chance to be heard. Humanity, humility, empathy, humour and lots of healthy snacks help me keep participants engaged, focused and positive during even the most difficult mediations.
3. Seeing the Same Landscape Through Different Eyes
As Marcel Proust said, “The real voyage of discovery consists not in seeking new lands. but seeing with new eyes.” Disputants and their counsel often come to mediation entrenched in positions and pessimistic about settlement.  A mediator should bring a fresh set of eyes and a new perspective, injecting positive energy and optimism into the dialogue, unearthing interests and concerns that have been missed, and offering novel ideas or options for resolution that have not been previously considered.
4. Practicing Patient Persistence
Disputing parties expend a great deal of time, energy and resources on their dispute, often leaving them emotionally raw, fatigued or frustrated (or all of the above) by the time they get to mediation. Even good counsel can succumb to litigation battle fatigue. A mediator that practices “patient persistence” stays the course, offering an endless supply of encouragement, resilience and stamina that keeps the parties on track, engaged and communicating, particularly at those critical points in the process when it would be easy for everyone to pack up and and pack it in. Even if a resolution isn’t achieved during mediation, I remain hopeful. Counsel and their clients may need some time to digest what’s been discussed at mediation before revisiting resolution. I, generally, follow-up with counsel by phone or email after the mediation to see if I can help in moving the parties forward. Counsel and their clients appreciate this gesture and I find that a simple follow-up often sets the wheels in motion for a settlement in the days or weeks following mediation.
5. Resourcefulness
A local diet doctor promotes his weight loss program with the following tag line: “If you could do it alone, you would have done it already.” The same could be said about the resolution of conflict. If disputants could resolve their disputes on their own, they wouldn’t need mediators. Good mediators are resourceful, armed with an array of communication tools, creative savvy, substantive knowledge and process skills, and the ability to develop a road map to resolution and the dexterity to modify it on the fly as circumstances change. A resourceful mediator adapts their approach to the parties, drawing on their facilitation skills and, when requested, employing reality testing techniques – with sensitivity, tact and balance – to help the participants assess the relative strengths and weaknesses of their case and litigation risk, ever mindful of the delicate professional relationship that exists between counsel and client.
Much like the role of a conductor or referee, a mediator’s role can be subtle, perhaps even unseen. I’ve suggested five ways a mediator can add significant value to a mediation process. Do you have thoughts of your own? I’d like to hear from you.

Photo credit: Got Credit

<![CDATA[POWER IMBALANCE: THE CHALLENGE OF LEVELLING THE PLAYING FIELD]]>https://www.google.com/Thu, 31 Mar 2016 14:35:58 GMT/859/blog/power-imbalance-in-mediation-the-challenge-of-levelling-the-playing-fieldPicture
In a recent blog post I focused on ten signs that your mediation may be headed for trouble. One of those indicators was power imbalance.

As a mediator, I am often faced with imbalances caused by a variety of factors: relationship dynamics between the disputing parties, a lawyer having more experience, expertise or knowledge than opposing counsel, or a party being better prepared or more knowledgeable about the facts of the case than another. Unchecked imbalances can have a significant impact on the outcome of a mediation. But, how much can a mediator do to redress an imbalance without compromising their neutrality?


The following exercise exemplifies how power imbalances can negatively influence the outcome of a mediation. Participants form groups and are tasked with depicting on a poster what dispute resolution means to them. Each group is given resources to complete the exercise including pens and pencils, coloured markers, magazines and scissors. Without informing the participants, the facilitator provides certain groups with more resources than others.

Peter Coleman describes the common outcomes of the exercise in The Handbook of Conflict Resolution: Theory and Practice. He discovered that high-resource groups tend to be unaware of the resource disparity until it is pointed out and the low-resource groups tend to notice their disadvantage immediately. While the high-resource groups are enjoying the exercise and being creative with the tools available to them, the low-resource groups are left to look around the room frustrated. More often than not, the low-resource groups convey a negative portrayal of dispute resolution on their poster, while the high-resource groups tend to depict dispute resolution in a positive and optimistic light.

Coleman also noted a negative response to the resource disparity that flows directly from the actions of the facilitator. During the exercise, the facilitator provides the high-resource groups with ideas and encourages them to be creative. Not only do the low-resource groups witness this but the facilitator makes a conscious effort to ignore the low-resource groups and their requests for additional resources. It is this aspect of the exercise that creates the most angst amongst the low-resource groups. It comes as no surprise that by the end of the exercise the facilitator is not very popular amongst the low-resource groups!

What can we take from from this exercise and experiences at the mediation table and how can we apply these lessons in practice?

1. Proactive Preparation for a Positive Mindset

The feeling of being at a power advantage or disadvantage can significantly impact a participant’s mindset at mediation and their level of engagement in and satisfaction with the process. Tip: Foresight and preparation help the mediator identify the possible existence of a power imbalance at mediation. Early detection of a power imbalance, preferably in advance of a mediation session, allows the mediator to work with the parties to identify the sources of the imbalance and develop appropriate strategies for dealing with them. Taking these proactive steps can help participants arrive for mediation in a positive frame of mind, ready to engage in meaningful negotiations.

2. Keep It Neutral

A mediator wields considerable power, with the ability to worsen an imbalance through their response to it. Tip: The mediator must remain neutral in dealing with an imbalance to maintain the trust and confidence of all mediation participants. A power imbalance can be made worse by a mediator who recognizes its existence but oversteps with a solution. Often overlooked is the impact overzealousness can have on the weaker party, even when the mediator has good intentions. As Phyllis Bernard reminds us in Power, Powerlessness, and Process (published in The Negotiator's Fieldbook), “by veering too much to one side, we invoke condescension and paternalism towards the powerless.” Conversely, the more powerful party can be impacted by overzealousness as well. A sense that the mediator is “teaming up” with the perceived weaker side can quickly lead the mediation into troubled waters, leading one or more of the parties to question the merits of the process and the mediator’s neutrality. Encouraging counsel to share information with the other side is a powerful tool the mediator can use to restore balance without appearing to be playing favourites.

3. Participants Often Know Best

The mediation participants (the parties and their counsel) are often in the best position to identify what they need to address a power imbalance. Tip: The mediator should listen for cues from participants to identify solutions for addressing the imbalance that are appropriate and responsive to the parties needs. To illustrate, while I value the use of the joint session, if a party is uncomfortable negotiating directly with the other side due to a perceived power imbalance in their relationship, I will separate the parties during the course of mediation to neutralize the imbalance.    

Power rebalancing in mediation is a delicate art.  A skilled mediator should have the foresight to identify an imbalance and the flexibility and dexterity to implement a plan that will help redress it without compromising their neutrality.

<![CDATA[THE CASE HAS SETTLED: WHO DRAFTS THE MINUTES OF SETTLEMENT?]]>https://www.google.com/Mon, 29 Feb 2016 12:20:34 GMT/859/blog/the-case-has-settled-who-drafts-the-minutes-of-settlementPicture
​After a long and, at times, challenging day at the mediation table, the parties have been rewarded with a resolution. But, the work is not done. As Samuel Goldwyn once said: “An oral contract is as good as the paper it's written on.”

Without a signed agreement that confirms the settlement terms, the parties may be inviting more conflict over what they’ve agreed to. I’m not prepared to call it a day until everyone has signed on the dotted line. But, when this penultimate moment in the mediation process is reached, who drafts the minutes of settlement? 
At a recent mediation one of the counsel involved asked if I would mind drafting the minutes. I’m not often asked to draft the minutes, but when the question comes up, I’m clear. As a general rule, it’s counsel’s role to draft the minutes. Thankfully, most lawyers are mindful of this responsibility. Very occasionally, I am asked to act as scribe, and I’m fine with that so long as it’s clear that the words on the page are the parties’.
Why my reluctance to draft the minutes after helping the parties reach the agreement they now want to document? I offer two reasons:
1.  This is not the mediator’s agreement
At its core, my role as a mediator involves facilitating a negotiation process. I encourage, prod and cajole the parties to engage in focused and effective discussion and I strive to guide them towards a resolution of all issues in dispute. A mediation that leads to a resolution requires clear settlement terms. But, ultimately, these are the parties’ terms – not the mediator’s – to document and enforce. Accordingly, the parties (and their counsel) have the onus of ensuring that the mutually agreed upon terms are documented to their satisfaction. During the drafting process I will point out substantive terms that were agreed to and are missing from the minutes. I may also discuss language or phrasing, or act as a scribe if asked, but the parties make the final decision on wording. Bottom line: the parties are accountable to enforce the settlement agreement, so they are obliged to draft it.
2. Mediators put themselves in harms way by authoring the minutes
There is a real possibility that if a mediator drafts the minutes, their words may become contentious. That puts the mediator on the hook should issues of interpretation arise. As mediator Alan Stitt discusses in his book, Mediation: A Practical Guide, it is dangerous if the mediator drafts what he or she believes has been agreed upon. If a key point is omitted, or the language is arbitrary, it could cause further conflict down the road.
Two cases about mediation confidentiality highlight potential problems for mediators who undertake the drafting of minutes. An Ontario Divisional Court decision in Rudd v. Trossacs Investments Inc., 2006 CanLII 7034 (ON SCDC) upheld the confidentiality of settlement discussions by refusing to compel a mediator to testify about mediation communications. The mediator in this case had the parties sign a mediation agreement, which contained a confidentiality provision. However, this mediator had also helped draft the minutes and when the settlement fell apart, one party sought to compel the mediator to testify about communication at the mediation despite the existence of the confidentiality provision. Although the court did not address mediator compellability directly, in a future case on different facts a mediator who is heavily involved in drafting minutes may be required to give evidence. In Union Carbide Canada Inc. v. Bombardier, 2014 SCC 35, a dispute about a mediation’s terms of settlement led the Supreme Court of Canada to hold that a standard confidentiality clause in a mediation agreement does not preclude producing communications made during the mediation process to prove the scope of the settlement. Both cases suggest that there may be instances when a mediator will be compelled to testify about communications during the mediation. This would be particularly problematic if the parties are disputing the terms of settlement, and the mediator has drafted the minutes of settlement.
At first glance, the complications that can arise from a mediator’s involvement in drafting the minutes of settlement may be difficult to perceive. But considering the potential consequences, I err on the side of caution to avoid potential trouble down the road. To preserve and protect the confidentiality of the mediation process and my neutrality and independence as a mediator, I leave the drafting of the minutes of settlement to the parties and their counsel. 

<![CDATA[FINDING FLOW AT WORK]]>https://www.google.com/Mon, 01 Feb 2016 03:25:29 GMT/859/blog/finding-flow-at-work Picture
Have you experienced the feeling of being so caught up and engrossed in a task that you’re not thinking about what you're doing and everything else seems to fade away?  It’s in moments like these that time appears to stand still and becomes irrelevant.  If you’ve experienced this sensation while playing a sport, an instrument or, if you’re lucky, at work, there’s nothing quite like it.  
While conducting research at the University of Chicago, Professor Mihaly Csikszentmihalyi coined the term “flow” to describe this state. Flow can be described as “the state where we feel in command of what we do, do it effortlessly, and perform at our best.” Being absorbed in this state not only feels great, but it helps us work at our peak ability. But flow can only be achieved once we become unconsciously competent at a task, no longer having to think about the steps or process involved in completing it. Like a pianist sitting down to play a piece perfectly from memory, flow can only be reached with dedication and practice over time.
Daniel Goleman, psychologist, blogger, and author of the bestseller Emotional Intelligencerecently wrote a post about achieving flow at work. Reaching a state of flow at work can be understandably challenging, with distractions, repetitiveness or unfulfilling tasks breaking focus. But, if we are able to find flow in the workplace, even some of the time, we are more likely to be productive and satisfied.
Goleman suggests three pathways by which you can achieve flow while working:
  1. Match your tasks to your skillset
  2. Find work that you love
  3. Fully concentrate and focus on the task at hand
As Goleman points out, the first two pathways, finding meaningful and challenging work, involve external factors. The third pathway, however, challenges internal focus and inner strength to remain absorbed in the task. This is increasingly difficult in the workplace where disruptions, such as buzzing phones and email notifications can fill our days. But Goleman suggests that strong focus can lead to flow, no matter what the task is. He recommends techniques such as mindfulness and “focusing on the breath” to strengthen our ability to focus at work.
I am continually striving to find flow, and to remain present and focused in all aspects of my life. Gratefully, I find myself most engaged and comfortable when I'm mediating. With dedication, practice and love for what I do, I feel competent and at ease during the mediation process. Even during challenging and stressful moments, being immersed and absorbed enables me to effectively flow with the process, adapt to the needs of the parties and apply just the right tool or technique to move us forward. Now if I could only bottle that feeling and apply it to everything I do, I'd really be on to something!

A year ago, I wrote about the importance of being present. The ability to remain focused and absorbed in the moment takes practice, and some days it comes more easily than on others. With a new year upon us, staying present and finding flow is something I have recommitted to working on.  So, whether you want to increase your focus at work, or elsewhere, I hope you will join me – not to go with the flow, but to find it and run with it.  

<![CDATA[THE JOINT SESSION: THE DEBATE CONTINUES]]>https://www.google.com/Tue, 29 Dec 2015 16:27:52 GMT/859/blog/the-joint-session-the-debate-continuesPicture
Is there a more polarizing topic in mediation practice today than the use of the joint session?
Some might say that joint sessions are a waste of time. I don’t share that view. While I would never push anyone to use a joint session, I encourage its use.
I was recently interviewed for an article in the Law Times along with fellow mediators, Allan Stitt, Mitchell Rose and สมัครคาสิโนออนไลน์ฟรี. The focus of the article was on the benefits of an opening statement delivered in joint session. 
Some lawyers and mediators argue that opening statements are unnecessary and potentially inflammatory. Their view is that each side’s position has been set out in advance in their mediation brief, so they consider it a redundancy to restate their position in an opening statement that serves only to create further distance between the parties. 
I prefer to see the opening statement as an opportunity to convey to the other side a positive tone and to set a collaborative intention for the day. It also presents a chance to persuade the other side of the strengths of your case. It may also be the first opportunity to hear directly from the opposing party, offering insight into their credibility and how they might perform as a witness at trial.

While there may be valid reasons for not delivering an opening statement in a particular case (a history of strong and destructive emotions, the existence of a power imbalance where, for example, one party is self-represented and the other is represented by counsel), in my view, these occasions are rare. 

Typically, I will ask counsel and the parties privately prior to the start of a mediation if they would like a joint session to begin the session. If I sense through those discussions that there would be some value in opening statements or, alternatively, a mediator summary of the key elements of the dispute, followed by a focused joint discussion on key issues and/or evidence, I will encourage the joint session and coach the parties and counsel so that they can make the best use of the opportunity. If I encounter resistance, I back off.
The value of a joint session doesn’t begin and end with the opening statement. Information sharing, that can help each side better assess the relative strength of their case, can often occur more efficiently in real-time in a joint session. Where there is the potential for an ongoing relationship between the parties, working through issues in joint session may help to begin to heal wounds that are blocking settlement discussions. And, some of the most creative options for resolution can often be found in brainstorming sessions conducted in joint session. In a recent partnership dispute I mediated, the parties arrived reluctant to sit in the same room and left with a new agreement on a future business relationship. The use of the joint session in that case was critical to achieving success.
I am not suggesting that a joint session is the best fit in all cases. Whether or not the joint session can be useful and when and how to use it effectively will depend on the circumstances. I discuss the benefits of the joint session, and how it can be utilized to save time and money, in my recent blog, The Joint Session: Help or Hindrance?.
The mediation table is not the courtroom and the mediation process is not a trial. In mediation, settlement decisions are not made by the lawyers or the mediator. There is no judge to decide the outcome of the dispute.  Decisions are made by the parties. Accordingly, the advocacy skills lawyers draw upon in a mediation are very different from those needed in the courtroom.
The joint session is a hallmark of mediation practice, woven into fabric of the mediation process. Its use dates back to biblical times. It's an integral part of the native healing circle process. The joint session represents one of many tools that a mediator can call upon when mediating.
Over the past eight months I have been tracking the use of joint sessions in my mediations. I look forward to assessing and reporting back on the findings of my study in the new year. But, whatever the results may show, I am confident we have not seen the end of the joint session.

​In the meantime, let the debate rage on!