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 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.

​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.  
 
WHAT MINDFULNESS LOOKS LIKE
 
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. 
 
IN THE MOMENT, TAKE A MOMENT
 
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.

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.
 
EXPECT EXPECTATIONS
 
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.
 
THE RIGHT DOSAGE
 
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.
 
RECOGNIZE THE RISKS
 
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.
 
KNOW YOUR ROLE
 
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.
 
FINAL THOUGHTS
 
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). 

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

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?

WHEN THE SCALES ARE TIPPED
​
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!
 
THE ART OF REBALANCING

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.    
 
SUMMARY

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.

​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 สมัครคาสิโนออนไลน์ฟรีAlan 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. 

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 Intelligence, recently 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.  

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 Jeff Morris. 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!  

Advances in technology have revolutionized the way we communicate and, to a large extent, relegated face-time to the virtual world. We rely on our devices – computers, tablets, smartphones – to communicate. Texting, emailing and posting content to social media is the norm for day-to-day communication in our personal and professional lives. But, while technology offers us the ability to connect with people faster and, perhaps, more efficiently, do these benefits come at a significant cost?
 
I was intrigued by Jonathan Franzen’s recent review of a book titled Reclaiming Conversation: The Power of Talk in the Digital Age written by MIT professor Sherry Turkle. The review explores Turkle’s thesis: “Our rapturous submission to digital technology has led to an atrophying of human capacities like empathy and self-reflection.” Turkle proposes that the current generation, with its over-dependence on communicating through electronic devices, is losing the ability to engage in meaningful human interaction. The review cites a recent study that shows a steep decline in empathy, as measured by standard psychological tests, among college students of the smartphone generation.
 
My last post highlighted some benefits of in-person mediation, with one of the greatest being the opportunity for parties to interact on a human level, to solve fundamentally human conflicts. Success at the mediation table depends on good communication, and the ability to empathize is a critical communication tool. Disputants that can walk a mile in their counterpart’s shoes will be far more inclined to engage in meaningful dialogue that addresses underlying needs and forms the foundation for a responsive resolution. 
 
We often hear that in western society more than 80% of communication occurs through body language and other non-verbal cues, including eye contact, facial expression, inflexion and tone. And, Turkle suggests that in-person conversation helps us recognize the full human reality of others, which is the starting point for empathy. But, with our increased reliance on digital technology to communicate, are we losing the ability to empathize and read non-verbal cues? Might this reliance lead to apprehension to engage in face-to-face dialogue? Will we even have the needed skills to engage in meaningful conversation when the opportunity presents?
 
Turkle declares that “the time has come to reassert ourselves, behave like adults and put technology in its place.” I embrace this challenge, and believe we could all benefit from taking even a small step back from technology. It is our responsibility to reclaim conversation and make the most of opportunities to connect. Human communication is ultimately about engagement. This means making the time to put our smartphones away, and practicing the art of conversation, as it is meant to be. I have no doubt this practice can help us in our day-to-day lives, and at the mediation table.
 
Hopefully, I’ve given you something to start talking about.

With the help of technology, we demand increasingly quick, predictable and easy access to products and services. But can our desire for convenience, speed and efficiency lead to less meaningful human interactions and lower-quality outcomes? Call me old-fashioned, but I still prefer to buy my clothes in a bricks and mortar store where I can ask for help, feel the fabric and the check the fit.   
 
Our fixation with convenience, speed and efficiency has crept into the dispute resolution field, with a dramatic move away from joint sessions in mediation and increased interest in telephone mediation and online dispute resolution (ODR). I’m not suggesting that all mediations lend themselves to a joint session (see my blog titled The Joint Session: Help or Hindrance?) or that there isn’t a place for innovation in dispute resolution that offers convenience, increases efficiency and reduces cost (check out my blog titled What’s There to Lose?: Communication Risks of ODR), but there is an important place for in-person mediation that is too often overlooked and under-valued. 
 
The mediation process offers disputants a cost and time-efficient approach to resolving conflict. The Ontario Mandatory Mediation Program, started in 1999, was designed to bring parties together - in-person - to encourage early settlement and minimize costs, while at the same time reducing pressure on the courts. Pursuant to Rule 24.1 of the Rules of Civil Procedure, most civil actions in Toronto, Windsor and Ottawa are subject to mandatory mediation. While it’s a required step in the litigation process, most litigants and their counsel embrace the opportunity to mediate in person. But, recently, I’ve fielded some interesting requests for what I’ll call "fly-by" telephone mediation.
 
I was recently approached to mediate a Toronto action. Mediation was, therefore, mandatory. Counsel requested an over-the-phone mediation. Counsel had pre-determined that mediation had no chance of bringing the parties to resolution. They wanted a quick mediation that allowed them to tick the mandatory mediation box and move on to the next stage in the litigation process. The parties proposed not involving the parties in the phone call.  This is not the first time I’ve been asked to conduct a perfunctory fly-by  mediation. I see it as a sham, which raises ethical and professional issues about attendance and good faith in the mediation process.
 
ATTENDANCE
 
Rule 24.1 mandates that parties and their lawyers “are required to attend [emphasis added] the mediation session.” While the rule does not expressly dictate physical attendance, I'd argue it's implied. There may be reasonable exceptions to this requirement where, for example, a party lives far away. In those cases, accommodations can be made to involve that party by phone or through video-conferencing.
 
Rules and ethics aside, there are so many benefits beyond settlement that can come from meeting in person.  These include:

• defining and narrowing issues
• exchanging information and assessing the relative strength of evidence
• assessing the credibility of the parties and other potential witnesses
• obtaining a reality check from an independent and impartial third party (i.e. a mediator)

 
Over the phone, many of these benefits may be diluted, or even lost, for the sake of convenience. And, time and again, parties initially resistant to mediation often arrive at an unexpected place: resolution. 
 
GOOD FAITH
 
Good faith participation at mediation requires the presence in body and mind of key decision-makers, and it feeds off their willingness and ability to engage in meaningful settlement discussions. When parties request an over-the-phone mediation simply to “tick a box” on the way to the courtroom, it’s fair to question whether they have satisfied their duty to participate in good faith.
 
TAKE AWAY
 
I have yet to participate in an in-person mediation that didn’t offer some benefit.  While not all disputes are ripe for resolution, there are collateral benefits to meeting in person, including the opportunity to define and narrow issues, weigh the strengths and weaknesses of a case and assess the credibility of the key players in the dispute.
 
Time is precious.  Efficiency is a worthy goal. I also understand the desire for convenience. But, all disputes, even those about money, involve people.  When you bring people together and put a human face on the conflict, magic often happens.