Perspectives from a Mediator/Arbitrator

Thursday, April 27, 2006

Mediation tip #5 - Getting Agreement - Part 1 - Don't be a Zax

One of my very favourite children's story is The Zax by Dr. Seuss. It is a nice short story to read at bedtime and it has a beautiful simple message about resolving conflict. With due credit to Dr. Seuss, I am going to set it out in its entirety here and then I will come back to the process of "Getting Agreement".

One day, making tracks
In the prairie of Prax,
Came a North-Going Zax
And a South-Going Zax.

And it happened that both of them came to a place
Where they bumped. There they stood.
Foot to foot. Face to face.
"Look here, now!" the North-Going Zax said. "I say!
You are blocking my path. You are right in my way.
I'm a North-Going Zax and I always go north.
Get out of my way, now, and let me go forth!"

"Who's in whose way?" snapped the South-Going Zax.
"I always go south, making south-going tracks.
So you are in MY way! And I ask you to move
And let me go south in my south-going groove."
Then the North-Going Zax puffed his chest up with pride.
"I never," he said, "take a step to one side.
And I'll prove to you that I won't change my ways
If I have to keep standing here fifty-nine days!"

"And I'll prove to YOU," yelled the South-Going Zax,
"That I can stand here in the prairie of Prax
For fifty-nine years! For I live by a rule
That I learned as a boy back in South-Going School.
Never budge! That's my rule. Never budge in the least!
Not an inch to the west! Not an inch to the east!
I'll stay here, not budging! I can and I will
If it makes you and me and the whole world stand still!"

Of course the world didn't stand still. The world grew.
In a couple of years, the new highway came through
And they built it right over those two stubborn Zax
And left them there, standing un-budged in their tracks.

There is so much to love here - the unexpected ending, the careful manner in which Seuss notes the escalation of the conflict. It really is better with the pictures and if you have children the right age can be found in a four story book entitled - The Dr. Seuss Story Book. There is another wonderful piece in there called the Lorax which is all about environmental degradation.

Of course, the easy solution to the Zax is to get them to both budge one inch in opposite directions at the exact same time but as someone who resolves conflicts professionally - this is not always as easy as it sounds.

Wednesday, April 19, 2006

ADR Blawgspots - Online Guide to Mediation

I am really enjoying doing this blog or as we call it in legal circles a "blawg". One of the reasons for my enjoyment is there is a community of people out there in the ADR business that are doing the same thing and I love reading about and learning from their different perspectives/opinions. A site that I think is one of the best and consistently interesting is Diane Levin's Online Guide to Mediation. I have added it on the left as a link and I highly recommend that you click on over and have a good read!

Monday, April 17, 2006

Mediation tip #4 - Marshalling the Facts - Part 2

In this part, I would like to write about the reliability of memory. Recently, I was having a nice discussion with another arbitrator. Our conversation made its way to September 11, 2001. For my generation, this is our "Kennedy assassination". People remember exactly where they were when they heard the news and people stopped what they were doing and concentrated on one event (or in the case of 9/11 a series of events). But how well do they remember the details (the facts if you will) of what happened? I remember reading shortly after 9/11 about a study that was going to be conducted about memory. A large group of people was going to be studied in relation to the memory of the events of the day. Over time they would be interviewed about what happened. What was the airline that hit the first tower? What was the flight number? How many people were on board? How many hijackers were there? Where did the flight originate? Where was it supposed to be headed? etc.

The arbitrator I was speaking with said that he did not recall that the second tower to be hit came down first. It is a bit illogical that the first tower remained standing well after the second tower to be hit crashed to the ground but that is what happened. Now I hazard a guess that on September 11 almost everyone would have remembered the order in which the towers fell correctly. A couple days later some would have forgotten. Now almost five years later, I expect most people have forgotten.

What does this mean for us working in ADR? I approach the facts carefully and with great caution. People forget not just small details but often quite significant detail. Yet, some people can insist with great fortitude that their version of the facts is correct.

A second issue about fact that I think is often misunderstood is that two people can be in an interaction and have very different recollections as to what happened. It is not that one person is lying or that one person has a different recollection - it is that they experienced the exact same event and yet perceived it differently - thus coming away with a difference as to the facts - how then can we say who is right about the facts.

When I am mediating - the facts are often the most interesting aspect of the case for both myself and the parties. However, my approach to the facts is often quite different from the parties. I come to the table with an awareness that a recollection is just that - a recollection - and that there may have been a difference as to what happened even if we had been there at the time of the interaction to ask the parties.

The facts of a case usually have the largest impact on the outcome of a case. Parties, however, should be careful not to get too caught up in their version of the facts as the other version may also have happened even if that version is illogical or inconsistent with your own version of the facts.

Coming near the end now - next up - working out the deal!

Sunday, April 09, 2006

The Baseball Weekend

For years I have participated in friendly sports pools - mostly hockey and baseball. Many many years ago, I started playing rotisserie baseball (now more commonly called fantasy baseball). I will not use this space to explain it. Last year, I was lucky enough to be invited to take over a franchise in a 16 team Diamond Mind Baseball League. Each team has a 50-man (can use gender specific language here (for now)) major league roster and a 50-man minor league roster. Our teams play actual simulated baseball games against each other in the simulations of big league parks. It is a lot of fun. Each year the owners get together to prepare for the upcoming season. The amateur draft is the highlight. With 800 players already under the contract, the usual information about who are the best minor league players is almost entirely useless. Of a typical Top 100 list - almost all of the players will be previously owned!

So when you go prospecting in this league - you are going deep. Because of a poor record and lucky bounce in the draft lottery - I selected first. I took a 17 year old Venezuelan shortstop! With my second round pick I took the top-rated high school junior!
And with my last pick I took a 16 year old Cuban phenom. My son attended the draft with me and I had to explain to him how the Cuban kid may never be able to help us because of the rules restricting Cuban nationals!

It will be alot of fun over the next five to ten years to see if anything comes of any of them - for the record - the names are Elvis Andrus, Robert Stock and Dayan Viciedo - unless you are the keenest of mionr league baseball fans I think it is safe to say - you heard it here first!

Sunday, April 02, 2006

Beisbol's Back!

With the first crack of the bat at a little after 8:05 EDT, the major league baseball season will be up and running. What I think now is my favorite sport will be back under way! As a Blue Jays fan, I am quite worried about this season. Expectations have been raised after a spending spree but I do not think this team is anything more than a .500 team in this division. I hope I am wrong.

Interestingly, almost nobody is talking about the fact that the Collective Bargaining Agreement is up after the end of the season. I hope that there will not be a work stoppage one year from now as I anticipate the start of the 2007 season.

I plan on attending my first home opener on Tuesday night since I attended the first ever for the Jays in April 1977. My own interest in baseball is accentuated by my Diamond Mind team - the Boardwalk Portsiders with my baseball draft weekend coming up next Saturday and Sunday - hopefully my son will join me on Sunday as we look deep into baseball's minor leagues for the next Jason Bay or Roger Clemens

Mediation tip #4 - Marshalling the Facts - Part 1

Every dispute is based on "what happened". The person (and when I use person I am including any party that could commence an action including non-persons!) who starts the formal legal process is doing so because of a concern (it can often be put much higher than that) about "what happened". The person feels aggrieved. Often (in fact I would say usually) the person against whom the matter is brought also feels aggrieved. That is because of "what happened". In a mediation, the parties want to tell the mediator "what happened". We call this the facts!

Usually I have a pretty good handle on the facts before the mediation commences because the parties have sent me a brief of the case. If not, the parties can "bring me up to speed" quite quickly. Questions that I have about the facts will usually (I keep using that word because there is very little standard about the conduct of a mediation once it gets going) be asked by me in one of the first caucuses that I have with the parties. In spite of that, parties want to tell me all of the facts - the reason why this is happening in the first place.

The parties frequently disagree about the facts. In a mediation, I try to determine which facts are most likely to be relevant in an eventual judicial determination (what will the judge care about) and try to determine the extent of the difference on those facts and whether I can assist either or both parties as to the likely outcome of that factual determination. It is the outcome of the factual determination that will likely determine the case. Once the facts are determined, the judge will apply the law to the facts.

What should you do about the facts in a mediation? You should try and determine the "key facts". You should let the mediator know why it is that you think that the "key facts" will be determined in your favour. Are there any documents that you can show to the mediator? Is there a witness who will be called? Is there some other fact that demonstrates the problem with accepting this particular fact?

When I get to the mediation, I have read what the parties have provided to me. I assume where there are factual differences that each party has an equal chance of "proving their facts". If you can demonstrate to me that your key facts are more likely to be accepted and why, then I can let the other party know that "based on what I have seen/heard" that it is likely that a certain factual difference will be determined in a certain way. I can then talk about what that might do to the likely outcome of the matter should it proceeed to a judicial determination. In a mediation, you often want to convince the mediator and through the mediator (or directly) the other side that the factual determination will go positively for your side.

Mediations are all about risk versus certainty. The matter can be settled today and the result is certain. There is certainty in the outcome and no risk left for either side as to outcome. The matter can continue and there will be risk (for both sides) as to the outcome. That risk in relation to the outcome is most often a product of the resolution of the differences in respect of the "key facts". By impressing upon the mediator, the likelihood that the "key facts" will be determined your way, you change the risk of the outcome for the other side and assist the mediator in helping you to achieve a resolution.

Having waxed on about the importance of the facts, my next tip will be a cautionary note about the unreliability of facts! That is part of what makes this whole area so wonderful. On the one hand I can blog about how vital the facts are to the process and yet promise you that the next blog will be about how facts are inherently unreliable.