Perspectives from a Mediator/Arbitrator

Thursday, March 23, 2006

The first day of Spring and Mistakes about fact

Well - we made it through another Winter with Spring coming to us on March 20 this year. I made the mistake of announcing to my children on March 21 that it was the first day of Spring only to be corrected by my son that "yesterday was the first day of Spring". Well, I think it is important as a mediator or an arbitrator to admit and acknowledge when I make a mistake about a fact. I know that my son follows the changing of the season much more closely than I do, so I was pretty certain that he was right. I told the story of getting the date wrong to a couple of people and they all said that Spring came a day earlier than normal this year. Having established from a couple of sources that I was indeed incorrect about the first day of Spring, I have accepted the fact that I was simply wrong about my fact.

Being wrong can mean very different things for a mediator than it means for an arbitrator. If I get a fact wrong during a mediation (and of course it has happened), I can be corrected and I can move on. I can not immediately remember a situation where getting a fact wrong in a mediation has ultimately had any impact on the outcome of the mediation. It has certainly caused a problem here or there but as I accept that I can make a mistake - when it is pointed out I will accept it and move on to fix any problem that may have been created by my mistaken knowledge. Once doing so, I can work to get the process back on track toward resolution.

When I work as an arbitrator, being mistaken about a fact can have much more serious consequences. If I can determine my mistake before I write the decision, I can be corrected. That is part of the reason that I like to "where and when possible" engage the parties in what I am thinking as the case proceeds. I think it helps them to know what I am thinking but it also has a secondary role of making sure in my analysis that I am either not missing something or proceeding on the basis of a mistaken fact. If I do not find out about my mistake until after the decision is written and sent out - there is nothing I can do about it at all at that point.

I was wrong about which day was the start of Spring! When I found out - I acknowledged it. I am going to be really careful before I make any pronouncements to my children about the commencement of Summer.

Saturday, March 18, 2006

Mediation tip #3 - Opening Statements

I had a very busy week and as such have not had much time to add to the blog. As it was March Break for schoolchildren here in Toronto, I expected that many of my cases would not go ahead but they did.

The next Mediation tip is about Opening Statements. Traditionally, a mediation starts with a joint session in which all the parties and the mediator get in one room. After opening comments by the mediator, the parties are invited to make an opening statement. This may be made by the solicitor representing the party (i.e the Plaintiff), the party him/her/itself or both. You need to think about the purpose of the opening statement - who is it for? The client? The other party? The mediator? What needs to be communicated? What else might be communicated? I find that all too often the opening statement by the lawyer is for the client. Instead, it should be used as an opportunity to persuade the mediator and/or the other side about your position in the case. A good opening statment is measured, direct and concise. It should focus not only on the strengths of the case but deal with the weaknesses. It might also focus on the reasons why resolution would be superior to ongoing litigation. I think the best opening statements also indicate that there is a willingness to settle and usually involve some sort of acknowledgement of the position of the other party.

Mediations are stressful for the participants, even before they get going. An opening statement can work to reduce that stress and put the mediation on a strong footing towards resolution. I have found recently that people are interested in opting out of having an initial joint session and face to face opening statements - they find that the joint session is at best a waste of time and at worst counterproductive. I will write about having or not having a joint session in the my next mediation tip - Whether and When - The Joint Session.

Blogs and Libel suits

This morning's National Post has an article in it about the increase in libel suits coming from comments on Websites. While blogs are all about personal opinion, it strikes me that all of us have to be cautious about what we say about others - we are in effect "publishing" each and every time that we blog. If in publishing, we are negative about others - we potentially open ourselves up to a lawsuit. Enjoy blogging but be cautious about what you say - once it is on the Internet anyone can read it!!

Saturday, March 11, 2006

Sunday New York Times and Blogging

One of the small pleasures in my life is the Sunday New York Times. As a person who loves to read newspapers, the arrival at my doorstep every Sunday morning of the Sunday New York Times is a happy event. My two favorite parts of the paper are the Sports Section and the The New York Times Magazine (although I tend to read almost everything every week). In the Magazine, I turn first to the weekly column by William Safire "On Language". As the magazines piled up a little over my vacation, I am just now reading the February 19 issue. In that issue, Safire wrote about the language of blogging. I was interested to learn that the phrase "blogosphere" is credited to William Quick who first used it on January 1, 2002 in his blog - the Daily Pundit (note to self - should look at that blog). As well, I learned the meaning of the blog terms - "link love", "tagged" and "deliciousing". I am happy to have learned more about the origins and meanings of some of the unique words used in blogging. Anyone interested in language would enjoy the weekly article by William Safire "On Language" in the Sunday New York Times Magazine. Tomorrow morning, I will get another Sunday New York Times!!

Tuesday, March 07, 2006

Mediation tip #2 - Mediation styles?

Like lawyers and like people in general, mediators have styles, approaches, perspectives, strengths and weaknesses. I once attended an Advocate's Society's seminar in which I was invited to be a guest mediator as students worked on mediation skills. Of the six mediators who were there, three of the mediators did the mediation without ever splitting up the parties into different rooms and three of us almost immediately split the parties into different rooms and conducted the mediation by way of "shuttle diplomacy". Interestingly, all the mediators were able to assist the students in achieving a resolution but they had obviously used very different techniques to do so. I was a "shuttle diplomacy" mediator. I am now finding in my own mediations that oftentimes the parties do not even want to do a joint session at the beginning of the mediation. There does not appear to me to be any direct positive or negative correlation between doing a joint session at the commencement of the mediation and not doing it. I think that there are cases where one is necessary and there are cases where it would be obviously counterproductive. So while mediators will hopefully have many common characteristics such as the ability to listen well, work well with people, synthesize infomation and a sense of humour, the manner in which the mediation will be conducted will vary widely from mediator to mediator and even from one mediation to another mediation with the same mediator. My best tip here is to know or learn the style of the mediator that you will be working with as it will help you to achieve a positive result. Next up - Mediation Tip #3 - Opening Statements.

Odds and Ends

Just back from one week of vacation and there are so many things to catch up on - so here are some really quick odds and ends.
1. The Canadian Olympic team ended up doing quite well finishing with 24 medals (one off the prediction of 25 but most pundits would have given the Canadian men's hockey team at least some sort of a medal) and in third place overall - would be pretty neat for little Canada to actually win the Olympics when they are held in Vancouver/Whistler in four year's time.
2. My thanks to Michael Fitzgibbon and Diane Levin for their kind welcomes to me last week to the world of the blogosphere. Michael's blog can be found here and Diane's blog can be found here. They are both well worth a visit!
3. I will be preparing and posting Mediation Tip #2 soon. I have already had someone come to a mediation and note that he read Tip #1 before coming to the mediation. It is my hope that these tips will help to demystify the whole process for people and make the entire mediation experience more positive.
4. I note with sadness the passing of Hall of Famer Kirby Puckett. As a person whose passion for watching baseball started with the inclusion of the Toronto Blue Jays in the American League in 1977, Kirby Puckett is the first Hall of Famer whose career I was able to enjoy from beginning to end to die (as best as I can recall). He was one of those players who if you saw him play - you will never forget him - short and barrel-chested - he did not look like a ballplayer but he could run like the wind and hit very well and he did it all with the smile on his face that is far too rare. You could tell that he really enjoyed what he was doing and the fact that he was making a lot of money playing a child's game. It seems that after his early retirement from baseball for health reasons that things did not go so well for Kirby - but I will remember him not as one of the best ballplayers I ever saw play but as one of the most entertaining. There is a nice and balanced obituary at one of my favourite websites - - click here
That's it for now - thanks for all the positive feedback!