Perspectives from a Mediator/Arbitrator

Wednesday, May 31, 2006

Perspectives from a Mediator/Arbitrator goes live!!

A chance to get these perspectives live will occur on Monday, June 12, 2006 at the Imperial PUBlic Library, 54 Dundas Street East at 6 pm as I and my arbitrator colleagues - Jane Devlin, Paula Knopf and Bill Kaplan are the guest speakers at "A Beer and a Chat with the Arbitrators". Come out if you can. The session is hosted by the Labour Law section of the Ontario Bar Association. It is quite a friendly group and I think the evening will be interesting who wants to know the answer to the question "what is the arbitrator thinking right now?" For registration information click here.

Raymond United

Raymond United took to the field last night! I am sponsoring my daughter's soccer team in the beaches community soccer league. It is a wonderfully-run community-based league. The kids looked splendid in their red and black uniforms. Tonight - my son's team will take the field as well for its first tilt. That team is also named - Raymond United. If you might be interested in signing up a kid for the league (I am afraid it is quite full for this year) click here.

Saturday, May 27, 2006


My daughter no longer wants to be a superhero. She wants to be a nurse. I asked her if she wanted to be a doctor. She said, "no, only boys can be doctors". I, of course, corrected her - "I go to a female doctor". She still thinks that she can only be a nurse and I know that between now and any binding occupational decision I will be able to satisfy her that in our society girls can do anything that they want (okay there may be a few things like certain professional sports that may not be available (we will see). If when she is an adult, she wants to be a nurse - that would be great.
I just saw a commerical on television for an arthritis drug - I think it is Cerebrex or something like that. In the commerical you see a whole series of active people smiling and doing things and they keep saying over and over "ask your doctor!" The last frame the smiling person says "Ask your doctor, HE knows" Why could they not have had the person say something progressive like "SHE knows" or at least something that did not fuel the stereotype like "Ask your doctor, your doctor knows!"
We must all fight stereotypes and this was just the latest example that I have seen and it is reflected in my little girl's mind. I know that I do it and I see it all the time in my professional life but if we talk about it then we might slowly push the ball a little further down the field and sometime soon little girls will not have a preconceived notions about their future vocations.

Friday, May 26, 2006

Perspectives - the Age of Innocence

Everybody that is involved in a mediation or arbitration has a different and unique perspective. Each person observes different things, responds uniquely to events and has different concerns. Sometimes when I am in the midst of a mediation or arbitration , I am so focussed on my own perspectives that I forget to take in (or try to take in) the unique perspectives that the participants are having. Of course sometimes these perspectives are communicated verbally, other times they are not and often I have to probe to entice the perspective out.
A recent car ride with my two children retaught me the lesson of perspective. My seven year old son asked me how long it takes to become an "avocat" (French for lawyer). I indicated that I studied for six years, worked for one and then went back to school for another six months to become a lawyer. He wants to be a computer programmer when he grows up. He asked how long it takes to be a computer programmer. Not sure of the answer, I said at least three years, maybe four or five. My daughter (who is five) chimed in that her best school friend wants to be a "Mom". Not surprising given that the girl's mother is about to have her fourth child. I asked her what she wanted to be and she replied "Dad I want to be a superhero!". The unique perspective of a five year old. Fortunately, unlike my son she did not ask how long it takes to become a superhero. I would have had no idea how to respond.

The word gets out!

I was fascinated and honoured to be listed in the blogs written by mediators that were listed in the National Institute for Advanced Conflict Resolution Annual Mediation Blog Roundup. It can be found here. I heartily endorse the selection of Diane Levin's Online Guide to Mediation as the top blog. You can find a link to her blog over on the right. I also really enjoy the second place blog Mediator Blah...Blah. I will put a link up for you to it as well.
It is quite weird to see a competition of mediators. I would think that most of us have moved from representing a party in an adversarial context to trying to resolve disputes because we are not as competitive as others (those who know me will know that is not necessarily true of me). Nevertheless, the list is fun and I will check out all of the sites - at least one of them is one with which I am not familiar!

Thursday, May 18, 2006

Children's Book Recommendation

I recently obtained a copy of William Kaplan's excellent children's story "One More Border". Bill is an arbitrator and mediator. He is also a prolific writer. He is also a friend of mine (best to admit your bias as an arbitrator before someone else brings it up)

The book tells the story of Bill's father as a boy leaving Lithuania with his family in 1939. Fleeing the Nazis, the story traces the journey of the family to Canada. I read it last night to my seven year old son who was absolutely gripped by it. I highly recommend that you pick up a copy, read it to a child and discuss the important issues raised.

Friday, May 12, 2006

Mediation tip #5 - Getting Agreement - Part 3 - a trick of the trade

Calling it a trick is not doing it justice. As a mediator, I am often faced with the situation that I know that the parties want to resolve the matter but for various reasons they are not willing to move towards the deal themselves. It may be because of a perception that they do not want to appear to be weak to the other side. It may be because they fear that if they move too far that the other party will not move again and that they will have to fully compromise to the other party's position. What I frequently do in this situation is what I have called the "blind taste test". I tell each party what the deal is going to be. If I think that there are issues that may be contentious even after a deal is reached - such as the form of the release to be signed - I work all of those out beforehand. I then present the deal to each side. I tell each side that they will only find out the answer of the other party if they themselves say "yes" to the deal. That way, a party can move safely to the position of accepting the deal without worrying that a new "floor or ceiling" has been created by their accpetance. If there is a "yes" from every party, there is a deal. If a party says "no", then that party does not find out the position of any other party. In a situation where there are only two parties, a party that says "yes" will know the position of the other party - there is either a deal or no deal which reveals the decision of the other party but the party that says "no" will not know whether the other party said "yes" or "no".

In multiple times using this method, I have achieved a deal in all but one case. It is obviously very important for me to choose carefully something that I anticipate will be accpetable to all parties when I present the deal. In the one case where this method did not work, there was a fact that was revealed only after I had told each party the deal that impacted the willingness of one of the parties to say "yes". A deal was actually achieved because once I explained the new fact and it was accepted, that party realized why the other party had said "no" and adapted its settlement position.

There are some further nuances to the "trick of the trade" which I would be pleased to explain to anyone who wants further information.

Monday, May 08, 2006

Mediation tip #5 - Getting Agreement - Part 2

Well now that you have the advice not to be a Zax - how do you get to an agreement? There is simply no single, proven way to move parties from positions to resolution. Almost always, it requires compromise by both parties, but even that is not always necessary. I have been involved in mediations where one party intends to have the other party simply agree with its position - there is no other alternative that will be considered - and I HAVE SEEN THAT WORK! I would say, however, that it is extremely unlikely to work.

As a mediator, I tend to be quite evaluative, other mediators are less so. I will tell parties what the possible and likely outcomes are if the matter proceeds - often without even being asked for my view. I think that one of the most important (and underappreciated) aspects of mediation is momentum. If I can have the parties moving towards a settlement and believing that a settlement is possible, then I have a much better chance that I will achieve that settlement. It is my experience that most parties want to settle - the litigation process is not one that most people enjoy and they are happy to be out of it.

One important tip is to have your settlement documents ready before the mediation begins. I have seen a number of mediations fail because of the length of time it took to prepare settlement documentation. Once the parties have settled, they are ready to sign the deal - do not delay in getting it done. I like to see the document prepared quickly (ideally this is done jointly by the lawyers) and then taken to each of the litigants for review. Once reviewed the changes should be quickly made. If there is a party that is likely to be reluctant to sign - have that party sign first. I have been involved in a number of mediations recently where an individual seemed to enjoy the fact that everyone was inconvenienced by the length of time it was taking that individual to decide whether to sign.

Before leaving this tip, I want to go back and share with you one "trick of the trade" in my next entry - Mediation tip #5 - Getting Agreement - Part 3 - One of the solutions when you get stuck!

Tuesday, May 02, 2006

Stanley Cup and Minor League Umps

I am thoroughly enjoying the NHL playoffs. What makes it so interesting to me is that a penalty is a penalty regardless of when it happens. It makes the game more interesting, more high-scoring and more consistent. In baseball, the rules do not change because it is the playoffs and the bottom of the ninth and in my view the rules should not change in hockey. Not a big fan of sports that tinker to much with their games but this is one change I am appreciating.

Noticed that the minor league umpires in baseball reached a tentative settlement with the assistance of a federal mediator but then the deal got turned down by the umpires. I would love to hear from anyone who can give me more details on why this happened and what the likely next steps are to be? I know what would happen here in Ontario (or by that I mean the likely outcomes)

JKG - A brief appreciation

I read with great interest the obituary of John Kenneth Galbraith in Monday's Globe and Mail. All right, a brief tangent here - I read obituaries every day. I read the death notices every day. I enjoy watching funerals on television of famous people. I find the ways in which different cultures "celebrate death" interesting.

Anyway - back to JKG. I want now to read a good biography of him because from what I read he led a very interesting life. Born a Canadian, he left a farm to go to College in Guelph, Ontario (another digression here - Guelph is the county seat of Wellington County where all my relatives come from (well where they come from to some extent after they hopped over the pond but that is a longer story)), and eventually made his way to Harvard. After moving through a couple of other institutions and jobs, he made his way back to Harvard where he taught for over 30 years - just a small Ontario town boy teaching at one of the world's most prestigious universities!

For us in ADR, he coined one of the all-time great lines as part of JFK's 1960 presidential campaign. He said, "Let us never negotiate out of fear, but let us never fear to negotiate".

Quite a life and quite an obituary.