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!

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!

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 15^th, 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. 

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.

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.

Who Does CORE Help?

As an LSLAP clinician I have witnessed first hand the toll that a legal issue can take on an individual. Most, if not all of the clients I have dealt with have given detailed accounts of the deleterious effects induced by the stress and agony of navigating the legal system. Thus, my belief in mediation and other dispute resolution procedures outside of the courts has been strongly reinforced.  Recognizing circumstances that lend themselves to successful mediation remain an obstacle to widespread adoption. Therefore, this week’s blog posting will explore what kinds of situations readily lend themselves to mediation and under which circumstances CORE will become involved.

Core’s mandate is to provide low cost mediation services for both the surrounding community, and for the student body here at the University. Several students have come to our office to inquire whether it is a conflict of interest for CORE to mediate between two students attending UBC. Provided we are able to arrange a student mediator who feels comfortable enough to proceed, CORE will move forward with mediation proceedings.

As an overview the following represent popular categories of disputes that CORE handles:

• Neighbour disputes
• Small business and partnership disputes
• Student housing
• Strata disputes
• Construction
• Small Claims cases
• Employer / Employee
• Landlord / Tenant
• Debt
• Contract

This list is not exhaustive and there may be other circumstances that lend themselves to mediation. For instance, when a relationship is ongoing there will be a strong incentive to agree to conditions that maximize the benefit for both parties. Avoiding a protracted legal battle increases the likelihood that parties can work past their issues without causing irrevocable damage.

Another factor that may affect mediation is the content at the heart of the issue. Disputes centering on tangible or monetary considerations are often much easier to mediate. Issues that encompass personal beliefs or values tend to be very polarizing and can lead to both sides becoming entrenched in a given position.

Additionally, people are often discouraged from mediation when they feel as though there is a strong power imbalance. Though this can present a number of difficulties, mediators are trained to meet these challenges with intervention designed to balance the proceedings.

If you suspect that you have a conflict in your life that could be solved with mediation, we encourage you to drop by our office in Allard Hall on UBC campus! Or email the clinic at coreclinic@hotmail.com.  

CoRe Speaker Series – Recap of “Exemplary Leadership: How Dispute Resolution Professionals Can Change Cultures” with Professor Michelle LeBaron

Professor LeBaron hosted an interactive talk on October 25 as part of the three-part CoRe Fall Speaker Series that called participants to critically think about their role as leaders when engaging in dispute resolution. Drawing on a wide variety of quotes, metaphors, and even poetry, Professor LeBaron creatively presented the critical message that dispute resolution professionals have a profound leadership power.

The underlying theme of her discussion called mediators to constantly be aware of the fact that humans are naturally partial, and mediators natural partiality is a fundamental aspect of their role as leaders. She wisely observed, “Even though we say we’re neutral, the micro-communications that we are a part of still come through and have an effect on the participants and the outcome.” The “micro-communications” she referred to could even be as minute as a slight difference in body language the mediator directs towards the participants or even the way in which the mediator amplifies certain things and mutes others during the course of the mediation. She encouraged mediators not to try and suppress this natural partiality, but rather to manage it in a way that welcomes the different and guides the participants through the mediation.

To illustrate this concept further, Professor LeBaron creatively looked to the four natural elements as metaphors for four dimensions of leadership mediators can exercise. She first looked to earth – a solid, grounding element representing commitment to clients. Mediators have the ability to use their leadership to ground people; they can guide people who are at their most vulnerable through established processes, and use their expertise to find constructive remains in the midst of conflict. Professor LeBaron called on participants in the session to come up with their own metaphors for how they help people to find their solid ground – as shaman, as conductor, as stuntman were only a few creative ideas that were posed.

Professor LeBaron next turned to the element of air, which she equated with beauty and collaboration. The ability of mediators to appreciate the strengths and resilience of the parties and to weave them into the mediation allows for small moments of beauty to be realized in the midst of difficult conflicts. Mediators can also control the sensory parts of the mediation to provide small moments of beauty, even as through small touches like the aesthetics of the room. Connections occur between parties during these moments of beauty.

The third element Professor LeBaron looked to was water, which served as a metaphor for cultural fluency. She provided participants with a vivid image of water weaving around the various “rocks” or barriers parties face in recognizing and coping with cultural difference. She pointed out that mediators must take a tailored approach by asking questions and by recognizing alternative logic systems, values, and social stigmas. Mediators must tread carefully around these issues since each person has their own uniqueness, and be able to be comfortable with ambiguity.

Finally, Professor LeBaron discussed the element of fire, which represented creativity. When parties are in the midst of difficult conflict, they do not naturally act in creative ways and therefore need the leadership of mediators to foster creativity and collaboration. Professor LeBaron told a captivating story at this point about the deepening colours and richness of clay pots when subjected to fires. She encouraged mediators themselves to “stand in the fire”, and take innovative risks to find creative solutions. She also asked participants to articulate where their wellspring of creativity comes from, and reflect on how it could be applied to their work.

Professor Lebaron guided participants at this Speaker Series session through a rich exploration of their leadership capacity in dispute resolution. She thoroughly impressed upon everyone the importance of this leadership capacity, the natural partial nature of it, and four core elements of its expression.

The next two Speaker Series Events take place this month. On November 15, from 4:30=6:00 PM, is John Wade’s “How to be an Effective Hard Bargainer – 10 Lessons”, and on November 30, 4:30-6:30 PM Lee Turnbull will be giving an Ethics Workshop. Both events are at the KPMG offices downtown at 777 Dunsmuir Street and cost $20 for non-CoRe members. RSVP to coreclinic1@gmail.com to reserve a seat!