Barriston Briefs: The Mediator’s Toolbox

The BarristonBlog

Barriston Briefs: The Mediator’s Toolbox

27 Mar, 2020

No doubt you are hearing more and more about mediation and how it is used to solve problems. Recently, in Ontario, a mediator helped with the negotiations between the Ontario government and the elementary teachers whose collective bargaining agreement had expired. It appears that a new agreement is in the offing. How do mediators help people help themselves to solve these types of problems?

Properly trained mediators are aware of at least four types of mediation. Good mediators often use all four approaches in any given mediation session depending upon the nature of the dispute.

The first approach is often called “evaluative mediation”. This involves an analysis of the problem using legal parameters and so, it is often used by lawyers. Usually the distribution of money is involved. The lawyer offers a legal analysis and evaluates whether or not one side or the other has a chance of success in attaining their objective if mediation is not successful. The lawyer will often meet privately with each of the parties in a “caucus” in which they will ask questions which test the strength of the position held by each party. Sometimes the parties want the lawyer to tell them if their position has any legal strength or justification. The mediator can also be asked sometimes, if the parties wish, to give them a non-binding “decision”, on how their case might turn out if it went to court. This might help them see what they are missing in the other side’s position.

The second approach is called “interest based” mediation. Mediators using this tool focus on the relationship between the parties and help the parties reach a solution which recognizes the fact that they must have an ongoing relationship with each other. Mental health professionals often use this approach but so do many other branches of the professions. Money is sometimes a problem, but in matrimonial divorce proceedings, the parenting plan is often in dispute in which case it is vital that the parents work out a solution that permits them to have an ongoing civil relationship for the sake of the children. This approach can also be useful as well in labour situations where the owner and the employees have to have an ongoing relationship after the agreement is reached. It can and should be used anytime the parties in conflict need to work together when the conflict is over.

The third approach, similar to the second, is called “transformative mediation”. Transformation is the goal of this approach. The mediator is helping the parties find a solution which will transform the conflicted relationship into one which enables the parties to learn what triggered the conflict and, therefore, how to handle such a conflict if it arises again in the future. Again, mental health professionals are often the most skilled at doing this form of mediation because of their background, but other professionals have also had success.

The fourth approach is called “narrative mediation”.  In their book called Practicing Narrative Mediation, the authors, John Winslade and Gerald Monk, believe that people live their lives through stories. Thus, the conflict becomes a “problem story”. They recognize that one person’s perspective on the past history (“their story”) differs substantially from the other person’s perspective in the same past history (“the other’s story”). They believe that by avoiding assumptions as to which story might more accurately reflect the past and by carefully listening to the parties express their own story in their own way, they can help the parties see that the “problem story” is a restraint. If the parties can see that and externalize it, they can hopefully learn how to “re-author” their “relationship story”.

There are other approaches for sure as the above list is not exhaustive. Mediation as a profession is constantly evolving, just like any other profession. Mediators therefore must keep up with the developments of social science and, like any other profession, continue their education throughout their lives.

 

Tom Dart, Partner

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