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Sunday, March 11, 2012

Journey To Empathy: CoRe Speaker Series Event with Martin Golder


A good mediator must have empathy. When Martin Golder, M.A.I.B.C., first started mediating initially he felt that he didn’t truly have this. His journey to find empathy included a three-month hike in the Himalayas and multiple meditation intensives in Katmandu. On his journey, he learned the ancient practice of Metta Bhavana, the conscious projection of goodwill. When he returned, he was able to incorporate Metta Bhavana into his mediation strategy and that is what he shared with participants in the CoRe Speaker Series event on February 15.

The attainment of Metta Bhavana begins with meditation, and the focusing of one’s energy. Martin Golder guided participants through a fifteen-minute meditation session to practice this careful focusing first on the breath on one’s top lip, and then through various points in the body. Once everyone was relaxed and focused, he guided participants through the five steps of Metta Bhavana: first, to think positive thoughts towards oneself, second, towards someone you know and like, thirdly, towards someone you feel neutral about, fourth, to someone you dislike or find bothersome, and finally, expanding the goodwill out towards all living, sentient beings.

Martin then showed participants how to apply this practice to a mediation. He explained that an energy field existed in any room and the mediator has the power to influence the nature of that field. As an example, he shared an experience of a time when he was interacting with a difficult, negative lawyer and he found that projecting his positive thoughts on her actually changed the energy of the room and she actually began to interact better with the others in the room.

His overarching counsel was to listen, and say something kind. He encouraged participants to remove all process thinking and planning what to do or say when the other party stops talking, but rather to truly listen to what they are saying. Then saying something genuinely kind, which flows spontaneously from your positive energy, will quite often put people on the track of an exploring mechanism that ultimately will lead to problem-solving and constructive discussion. Kindness also creates a model of a respectful type of interaction that will help set the mood of the mediation. Empathy, attention, and respect to a bully, for example, often throws them off track momentarily, which creates a space to cast a new mood into the mediation.

Martin helped participants apply these ideas by leading a hypothetical situation. He had two volunteers role-play a conflict, and other participants were encouraged to project their goodwill towards them by truly listening to their arguments and spontaneously saying something kind when it came to them. The group discussion afterwards analyzing the kind statements made was very fruitful and engaging, and the session went overtime because participants were so eager to share their thoughts and ideas.

Martin Golder is an architect in Victoria. In 1996 with the encouragement and mentoring of Patricia Lane he started a practice of conflict management. In addition to his private practice, Martin is a mediator and mentor in the Provincial Court Mediation Program.

The next CoRe Speaker Series event takes place on March 13th, 4:30-6:00 at KPMG, and is a discussion of mediation on television with Sharon Sutherland entitled “Does Justice Look Like This?” Free for members, $20 for others. RSVP to coreclinic1@gmail.com.

Monday, February 27, 2012

Mandatory Mediation: Making Court the Alternative


A high likelihood of reaching an agreed settlement is inherent in most voluntary mediations. Parties that have agreed to mediate have taken the first step towards resolution by agreeing to discuss and to mutually work towards a settlement. One of the major challenges experienced by the CORE clinic is raising awareness of the services offered by our organization. Litigation remains the preferred dispute resolution mechanism, and parties often fail to voluntarily consider any alternative.

In an attempt to cut down on the congestion in the courts governments in Ontario, Alberta, and British-Columbia have implemented a mandatory mediation process in certain dispute areas, before matters can progress to trial. There has been much debate as to whether mandatory mediation actually contributes to expedient resolution of disputes, and if it in fact eases the overwhelming burdens placed upon our courts. Critics of mandatory mediation have labelled it as an unnecessary hurdle on matters destined for trial, claiming that most disputes settle themselves before trial. Others submit that mandatory mediation will be beneficial only in certain circumstances.

It is argued that only situations in which both parties agree to mediate can benefit from mandatory mediation, as both sides are forced to participate. As a result, neither party’s interests are weakened by having to introduce the option. A bias is introduced however, when one side is unwilling to undergo mediation. A mediator’s neutral position will be compromised from the outset because they will be an advocate of a process in which only one party believes. Additionally, in cases where neither party is willing to undergo mediation, it is less likely that participants will come to an agreement. They will instead work towards returning to litigation. Once the atmosphere of the mediation is perceived as negative, it is argued that the parties are irrevocably compromised, and any dialogue will be met with scepticism or distrust. An aggravating factor in this dilemma is that in most jurisdictions the only mandatory component of mediation is attendance. Parties are free to show up to mediation and engage in no serious dialogue.

The results of mandatory mediation programs however have been encouraging. Angela Mallard is the Court Mediation Program Manager of Mediate BC. She deals extensively with small claims mediation. Her statistics demonstrate a high degree of approval from parties that have been through mandatory mediation with an average satisfaction rating of 4.33 on a 5-point scale. Over 90% of participants indicated a willingness to use mediation again if they found themselves in another conflict.

Similar findings were published in an evaluation of Ontario’s Mandatory Mediation program. The findings in the report show significant reductions in the time taken to dispose of cases, decreased costs to litigants, and a higher proportion of cases being completely settled earlier in the litigation process. There is also a growing body of evidence showing that mediation is less stressful for litigants, and 'process satisfaction' levels for parties in mediation tend to be very high.

Voluntary settlement should always be the primary objective when dealing with disputes. It is the responsibility of lawyers, as well as their clients to exhaust all available options before burdening courts with their disputes. Mediation provides a more structure approach to reaching these settlements. Ms. Mallard believes that mandatory mediation can be a catalyst towards changing a culturally entrenched reliance on imposed remedies. Ms. Mallard is not the sole advocate for an increased emphasis on mediation. I had the privilege of attending a lecture recently given by Supreme Court Justice Morris Fish at the University. He was asked how the overwhelming demands on Canadian courts could be alleviated. His response was a greater dedication and reliance on alternative forms of dispute resolution such as mediation. By providing a positive experience to parties who undergo mandatory mediation, it is hoped public consciousness of its advantages will grow and increase the willingness to mediate at a macro level. Forcing mediation brings it to the forefront of public consciousness and encourages a shift towards more collaborative resolution of civil disagreements. 

Monday, February 13, 2012

Ethics in Mediation

It’s Law in Context Week for first year law students at the University of British-Columbia. The objective of this course is to provide an introduction to legal ethics and professionalism. Though many parallels exists between the ethical requirements of a lawyer and mediator, I wanted to explore the field of ethics specifically in the context of mediation.

Instances of clear cut ethical dilemmas tend to be scarce and even then, don’t require much thought or contemplation as to which path is right and which is obviously wrong. There are few lawyers that would not classify stealing from clients, or hiding evidence as unethical conduct. In mediation and other fields of law, issues are more intricate and subtle, making ethical decisions a tough choice between right or wrong that aren’t as clearly defined. Certain ethical concerns often arise in the course of mediation, for instance, at what point is the ability of an individual to mediate comprised by a conflicting interest, or what degree of consideration should be afforded a third party affected by the outcome of mediation.

Professor Ellen Waldman discusses the ethical obstacles facing mediators as they pursue successful mediation in her book, Mediation Ethics: Cases and Commentary. Professor Waldman submits that there are underlying principles likely to be in tension when mediators confront cases challenging their individual ethics. These principles include an attempt to ensure procedural fairness used to reach the result, the right of the disputant to make choices based on personal beliefs free of coercion or constraint, and the substantive fairness of the mediated outcome.  

Mediation, unlike litigation assumes that parties should retain control over how their conflicts are presented, discussed, and resolved. Unfortunately, situations can arise where it is questionable whether one party can be said to actually be exercising their autonomy. Professor Waldman cites both internal threats, such as blinding rage that subvert the decision making ability of the individual and situational threats that can coerce behaviour. If one party due to their frailties is manipulated by the other side, can it be said that their behaviour is autonomous and at what point should a mediator be compelled to intervene?

Furthermore, at what point does the fairness of the result matter? Some practitioners and scholars submit that questions of fairness remain only a consideration in evaluating the procedural, rather the substantive result. Mediators tend to be uncomfortable with the role of justice arbiter, but what happens where a weaker party due to their frailty is willing to accept substantially less than what they could receive otherwise in court? Is there not a point at which the autonomy and procedural fairness underlying mediation gives rise to the substantial fairness of the parties?

These are difficult questions that lack a definite and widely accepted answer. The context of each mediation is an inherently important factor to consider before arriving at a final decision. Reflective practitioners describe conflicts in ethical norms and propose solutions that are different in different contexts. For practitioners, it remains vitally important to take account of the context and engage in a thoughtful consideration of neutrality, impartiality, conflict of interest, as well as many other ethical concerns when conducting mediations. 


 As always if you feel that you have an issue that could benefit from mediation contact the CORE clinic at UBC either by email at coreclinic@hotmail.com or give us a call at 604-827-5024. Have a great week!

Wednesday, February 1, 2012

Making Mediation Work in Employment Law


            Recently as a volunteer for the Law Students Legal Advice Program, I met with an individual who claimed he’d been wrongfully dismissed. In describing the facts of the case, I was struck by the nature of the remedy sought. This individual was not overtly interested in financial remuneration; instead they were primarily interested in an acknowledgement that the dismissal was unjustified, an opportunity to discuss the dismissal and strangely enough a letter of reference. The case eventually was resolved without the need for a legal intervention, something that is frequently recognized as the most efficient outcome for both parties.

            In conflicts between employees and employers the impacts of litigation can be readily apparent. We have repeatedly talked about the exorbitant costs of litigation and the time required to reach a resolution. The expense is even higher when considered in a commercial context, in light of the disruption of normal day-to-day activities and the time that must be devoted time to help prepare a case.

            In addition, litigation risks detrimental affecting the culture of an organization. Word of mouth is often cited as critical for successful employee recruitment. The stigma of a company’s involvement in protracted legal battles with an employee or employees, can cause irreparable damage to its reputation. A company embroiled in fierce legal battles will not be a choice destination for top talent. In addition to damaging the company’s image in the eyes of potential employees, a legal dispute with an employee leads to an adversarial atmosphere. A dispute can divide an organization into distinct camps siding either with management or the employee, which reduces morale among existing workers. It fosters more of a normative relationship between employees and their employer, rather than a more effective emotional attachment or identification with the organization. 

            As a result more and more companies are instituting employment policies that include dispute resolution mechanisms, which may start with an internal complaint and investigation, peer review, non-binding mediation and then arbitration. Often the line between right and wrong is not clearly identifiable and resolving the issue combatively through litigation can lead to all or nothing solutions. When one side denies culpability, the other typically will respond with an unwillingness to enter into any type of settlement.

            Mediating employment disputes offers several benefits, for instance mediation covers a broader range of issues. Existing dispute resolution mechanisms simply aren’t equipped to address the full range of issues and conflicts that arise. Employment disputes are fundamentally conflicts in a relationship. Mediation allows for the necessary expression of the emotional aspects of the conflict and provides a framework for creative problem solving. Mediation will often conclude without any lingering animosity, as both parties will have contributed to the outcome. The parties are encouraged to consider creative remedies such as training, job modification, letters of reference, letters of apology, or new open channels of communication in resolving these complaints, especially when they involve currently employed co-workers.

            As always if you feel that you have an issue that could benefit from mediation contact the CORE clinic at UBC either by email at coreclinic@hotmail.com or give us a call at 604-827-5024. Have a great week!

Monday, January 23, 2012

CoRe Speaker Series – January 18, 2012: Conflict Resolution Within Faith Communities

On Wednesday, January 18, CoRe members and others were treated to an interesting joint discussion by accomplished mediators Leanne Harder and Fazal Bhimji on conflict resolution within faith communities.
Leanne was the first to speak, and her presentation was made from a perspective within the Christian tradition. The thrust of Leanne’s presentation was providing mediators with strategies when one or more of the parties in a dispute resolution identify as practicing Christian. She first provided participants with some touchstone values of Christianity that overlap with conflict resolution, such as forgiveness, loving your neighbor, and desiring to honour God with one’s actions. She drew our attention to some key passages in the Holy Bible that reflected these values. She then expanded on some strategies, which included asking the participants in a mediation exploratory questions regarding faith and values, asking whether they have a spiritual advisior, and possibly involving the spiritual advisor in the mediation process. She also provided participants with some faith-related questions that could be asked during a mediation, and explained each of them according to the level of risk they involved. Riskier questions included “What have you prayed for regarding this dispute?” and “What would forgiveness look like for you in this situation?” She concluded by providing us with some useful online links to Christian conflict resolution ministries: http://www.alban.org http://www.hispeace.org.

Fazal then took the podium with a presentation on culture and faith based considerations in conflict resolution from the perspective of the Islam tradition. He first drew our attention to the difference between generalizing and stereotyping cultures – generalizing may be useful to predict future behavior and unlike stereotyping it is open to reformulation. Stereotyping can be rigid and unhelpful because each individual’s own understanding of their culture can be very unique. Fazal then drew in the Islamic tradition to the discussion by focusing on Islamic teachings and events that intersect with dispute resolution, and critically analyzed some key passages from the Holy Quran. Next he focused in on Ismailism, a branch of the Shia sect of Islam. Fazal explained the Ismaili national and international Conciliation and Arbitration Boards (CABs), a free service to the congregation consisting of volunteers whose primary function is to resolve disputes equitably, quickly, economically, constructively and with an eye to cultural sensitivity. The CABs operate subject to the modern legal system in each jurisdiction, but are rooted in Islamic tradition. Fazal’s presentation then moved to how mediators must face the constant challenges of cultural disconnects and he raised some key differences between eastern and western cultural traditions relating to dispute resolution and communication. He made some useful suggestions for overcoming these barriers, such as cultivating patience, avoiding quick judgments and stereotypes, and paying close attention to both verbal and non-verbal communication.

Leanne Harder, BSW, RSW, M. Ad. Ed. (C), is the founder and chief consultant at Olive Branch Consulting. Leanne has worked extensively with children and families in both government and non-government agencies and her professional experience includes family mediation, employment issues, complaints management, community development, and child welfare. She identifies as a practicing Christian.

Fazal Bhimji is a mediator and founder of MAIN Solution – Mediation Arbitration Investigation Negotiation, and is chair of the Delta Property Assessment Panel. He also coaches conflict resolution and negotiation courses and teaches management and leadership courses at the Justice Institute of British Columbia. His main area of focus is workplace and labour matters.

The next CoRe Speaker Series event takes place on February 15th, 4:30-6:00 at KPMG, and is an exploration of the use of Metta Bhavana as a tool in mediation with Martin Golder. Free for members, $20 for others. RSVP to coreclinic1@gmail.com

Monday, January 16, 2012

Walking Along the Career Path


            The December break has come and gone as another semester of UBC law is beginning to roll along. The holidays were a welcome break from the grind of law school and have hopefully proved rejuvenating for all. In this week’s blog posting, I’d like to discuss some advice I’ve received recently from a number of practitioners in the field of mediation. This post will briefly explore their advice and my reflection on how to turn it into an actionable plan.

            What area of law are you thinking of practicing? Throughout my experience in law school this question has been consistently asked by everyone; friends, family, classmates, legal professionals, professors and of course career counsellors. When addressing this question before I began law school, I would hesitantly reply that the field of mediation held a lot of interest. As my legal education continues to unfold I have become more and more convinced that this is the right field for me.

            Before beginning school, I’d done some research on my own but had very little practical exposure to the field. I decided to conduct some informational interviews with mediators on the front lines. Consistently, each person I spoke strongly highly of the experiential learning they acquired as they progressed in their legal careers. Many of the mediators that I spoke with stated that the most valuable experiences that contributed to building successful mediation practices, was their time spent litigating or practicing the law outside of mediation. The foundations of a successful mediation practice, according to these individuals, are built through an intimate knowledge of the law and its principles.

            In addition to enhancing their legal knowledge, their day-to-day activities included negotiating settlements and learning to read people’s emotion. Both have proved to be essential as they transitioned towards full-time mediation work. Therefore, it is important to realize that as a new graduate or student, it may be slightly unrealistic to expect to start out in mediation.

            There are however, a number of opportunities to gain exposure to mediation, while still simultaneously pursuing a legal education. UBC is offering a mediation clinic in which students are given an opportunity to co-mediate four disputes in small claims court. The clinic is spread out across two semesters, one of which provides the theoretical background for mediation and the other involves a practicum providing a more hands on experience. This fusion of the practical and theoretical provides exactly the kind of experience that practitioners were advocating for.

            Another common piece of advice that I received was that there are inherent traits that make a successful mediator. An ability to facilitate discussion, relate with people, and an ability to understand complex human emotion were all mentioned as valuable traits for any mediator. It is important for somebody contemplating mediation to undergo serious reflection and to decide whether your inherent qualities suit the profession. In drawing from my own personal experiences, even as the youngest of four siblings I was often the one to resolve matters and to help restore harmony in my family. I acted as a bridge between some of the more polarized figures within the familial unit. In order to maintain credibility and to avoid a pummeling at the hands of my larger siblings, I tried to maintain an impression of impartiality. I would consistently try to frame issues and dilemmas in a different manner so as to bring about a sense of resolution to them.

            If you’re struggling to map out your career path or are simply seeking guidance, I highly recommended talking with practitioners. If you are able to network and find mediators who are willing to sit down and speak with you they are an invaluable source of information. The CORE speaker series events provide excellent opportunities to mix and mingle with exactly these types of people. For more information on these events you can visit http://tiny.cc/ifwhv or contact us directly at 604-827-5024 or coreclinic@hotmail.com.

Monday, November 21, 2011

The Recipe for Rapport

This week, the core psychology series is summarizing research on the existence and effect of rapport between individuals. The following information has come from Chapter Two of psychologist Daniel Goleman’s book “Social Intelligence: The New Science of Human Relationships”, published by Random House Digital. In “A Recipe for Rapport”, Goleman outlines current research on rapport that indicates it is associated with feelings of engagement and positivity during an interaction. Understanding the current research could provide mediators with useful insight into effective communication.

Goleman indicates that rapport is correlated with a physiology pattern. Notably, there is a sweat response that can be observed when two individuals are enjoying their interactions or feel understood by each other. While the concept of rapport is correlated with a physiological response, Goleman states that individuals perceived to have a rapport also report or demonstrate creative and efficient decision making, strengthened bonds, and feelings of warmth, friendliness, understanding, and genuineness.

Goleman outlines three key elements of rapport: shared attention, shared positive feelings and coordination of non-verbal behaviours. These elements are related to positivity and engagement in interactions.

Shared Intention

Shared Intention involves individuals being jointly attentive to the same stimuli. Having joint attention can fuel mutual empathy between individuals. For example, a scientific study was conducted where researchers observed participants that witnessed a confederate reinjuring a small cut on their hand. Participants looking at the confederate winced and displayed a pained expression. Participants not looking at the confederate knew the confederate was in pain, but did not display the pained facial expression.

Shared Positive Feelings

Shared positive feelings are facilitated by non-verbal messages during conversation, such as tone of voice or facial expressions. In a study, confederates provided negative feedback to study participants, with different accompanying facial expressions. Participants that were given negative feedback while still receiving warm facial expressions reported higher feelings of overall positivity about the interaction.

Coordination of Non-verbal Behaviours

Coordination between individuals’ non-verbal behaviours can fuel feelings of rapport. One of the most notable examples of this is mimicry. Mimicry refers to instances where individuals mimic each other’s non-verbal behaviours, such as tapping ones foot. Mimicry, when not forced, is correlated with increased positive feelings towards an individual. For example, students whose postures where similar to their teachers in a class room reported feeling more involved in the classroom. Be wary though, people can notice when someone is trying to mimic their behaviours, which can lead to negative impressions. Daniel’s article indicates when individuals lack this coordination, conversations can make participants feel uncomfortable.

Although there would not be much use in trying to coordinate our non-verbal behaviours with participants in mediation, it seems being cognizant of how we focus our attention and of how we express ourselves would be useful. It does seem obvious that trying to stay positive and focused as a mediator would improve the moods and engagement levels of participants, but sometimes it is hard to know if such efforts have any impact. As seen in the studies outlined previously, it seems like putting in an effort to maintain our own positivity and focus in mediation may have a tangible effect on participants in mediation, especially if negativity may persist between the parties themselves.