By Helen Pelton,
Reprinted with permission from The Hamilton Lawyer magazine, summer, 1998 with permission

I now have a new certificate to go on my wall. It will fit nicely between the one that says I have flown around Everest, and the one that says my dog is registered with the Kennel Club. My newest encomium says I have completed a basic mediation course. This, I am reliably informed, will permit me to apply for membership of any roster of mediators, should mandatory mediation ever make its way to Hamilton.

I took the course because I am a great believer in mediation as the preferred tool for resolving disputes. I have enjoyed watching Jack Shinehoft, the senior lawyer for whom I work, settle the most apparently intractable cases in only one day of intensely concentrated effort. It is apparent to me that mediating well requires an ability to understand the legal issues, understand the client's real needs and hang-ups, detect opposing counsel's strategy, and then to listen, communicate and persuade. While I suspect that any competent lawyer can be taught to be an adequate participant, I believe that excelling at mediating requires a nice balance of intellect and intuition. The mediator, the person who is orchestrating the whole process, needs all these qualities as well as an ability to manage the people and the process with charm, tact and an iron hand. I am keen to try it myself.

I chose one particular course, the one offered by Dr. Barbara Landau of Co-operative Solutions in Toronto, because it came highly recommended by several people in the business. The course took six days, split into two 3 day blocks, two weeks apart. There were twenty registrants, four full-time teachers and four guest lecturers. I enjoyed the course, and I learned a great deal, more than I expected. The most significant thing I learned is that being the mediator is very hard work, much harder than being a participant.

Dr. Landau teaches the course with three other teachers, her husband, son and daughter. They are all good teachers, each with a distinct style, but the family dynamic is fascinating! What happens when this family has a fight? Is anyone unreasonable? Does anyone ever just storm out of the room, slamming doors? I would love to know.

Dr. Landau teaches a form of interest based mediation, essentially that set out by Roger Fisher of the Harvard School of Negotiation in his seminal book, "Getting to Yes". The basic steps involved in a mediation can be set out in a list that will fit on half a page. It therefore seems it would be a simple matter to work through the list, the solution should just pop out at the end, like a rabbit out of a hat. Alas, life is rarely that simple. The first stage will usually involve giving the parties an opportunity to state their views of the problem. Here is where intuition is crucial. At this stage, the mediator is acting as interviewer, encouraging each person to express the perceived issues. At the same time, the mediator must pick up every available cue, such as body language and tone of voice, in order to decipher the sub-text of the message. Many effective mediators gently probe by rephrasing what they believe they are hearing and sending the message right back. For example, "You are telling me that income security is a very important concern for you right now." The party then confirms this guess or points out the error. By this iterative process, many previously unstated sub-issues emerge, any one of which could scuttle a potential settlement if left unaddressed.

Once the mediator feels that most of the issues are on the table, the mediator will then try to formulate a joint problem statement. A well-crafted problem statement is, I suspect, the key to unlocking the solution. Problem statements often take the form, "How can we do x, while at the same time achieve y?" For example, "How can we provide John with income security, while at the same time allow Widget Co. to minimize its costs and preserve a consistent company policy?"

The parties are then invited to brainstorm solutions which focus on the problem statement. The goal is to find a solution that will allow each side to achieve the maximum amount of its own needs, while minimizing frustration of the opponent's needs. The classic example, from Fisher's book, is that of the two people fighting over possession of an orange. Both refuse to let the other person win, it seems as if the only solution will be to cut it in half. However, when each finally talks about their real interests, it emerges that one person wants the juice, the other wants the rind. Thus each can achieve all their needs without frustrating the other.

In real life, solutions are rarely so simple. First of all, most people are not good at brainstorming, the essence of which is to spout a stream of ideas, without internally editing them first. It requires courage. Most people are afraid of appearing stupid. Secondly, most of the problems I deal with as a civil litigator involve only two interests, the plaintiff's interest in receiving money, and the defendant's interest in not paying it. It's hard to be creative around issues like that.

All this has lead me to think about the types of mediations with which I have been involved as a participant, and to see how they fit into the model. I suspect that many of the events billed as mediations in the civil bar are not really mediations. They are simply negotiations, in which each side takes a position and then argues hard to keep it. It is a power based process, and lawyers who adopt a bullying style are often very successful. It is my observation, as a relative newcomer to the practice of law, that bullying is a well entrenched phenomenon in the practice of law. (Definition?) It begins in the lawyer's office where the lawyer tells the client what to do, and then carries on throughout the litigation. It is a paternalistic process, the lawyer as stern parent. Some clients appear to want this. Some lawyers appear to be incapable of behaving in any other way. In this kind of transaction, the power resides with the lawyer, who is regarded as a smart individual who knows all the rules and how to use them to advantage. In any event where opposing counsel meet in the presence of clients, there will be a lot of very tiresome posturing for the client's benefit. Clients who like this type of lawyer seem to adopt the attitude "My lawyer is a pit bull but MY pit bull!"

Negotiations with this type of lawyer are usually rather tedious. I believe you must be aware of the tactics being used, and simply ignore them, relying instead on being very focussed on the true issues and very determined to keep moving forward. There is a distinct possibility that bullies will grasp onto mediation as a forum that provides an opportunity to beat up a weaker opponent in the absence of that super-parent, the judge. It will be a major challenge for the mediator to prevent this happening. If the mediator cannot control it, the side on the receiving end of the bullying is likely to dig in heels and walk out of the mediation.

I have heard it said that mediators can be grouped into distinct types. One group has been disparagingly labeled "touchy-feely" types, who keep asking participants how they feel, but fail to achieve resolution. Another group is the "forceful" mediators, who go from caucus to caucus twisting arms until a solution is achieved, come hell or high water. To me this is just another example of bullies at work. I have no evidence to support my theory, but I am willing to bet that many bullies like this type of mediator. Then there are the retired judges, many who simply run a mediation like a pre-trial, with correspondingly hit or miss results. Finally, there are the truly competent mediators. You will know who these are if you ask around, they are the ones that get hired back.

When a mediation works properly, it is a process that puts the power squarely into the hands of the clients. The lawyer's role will have expanded to include not only advising, informing and crafting possible solutions, but also coaching and encouraging the client to be an active participant in the process. I believe that a well-prepared client in a real mediation is most likely to emerge from the process feeling that some measure of justice was achieved. From my own somewhat limited exposure to the trial process, I can see that a trial can only offer this to one side, and then often in a very imperfect manner. At the risk of sounding trite, isn't justice what it's all about?

Most lawyers recognize that the day of the client who is willing to abdicate control of the legal process to the lawyer is long gone. Clients want to be kept informed and make decisions. Mediation puts the ultimate decision in their hands. Real mediation will promote that process.