Resources & Insights

BARRISTON BRIEFS: Mediation – What’s that?

If you are a parent, you will undoubtedly have learned how to mediate. Either your children will be in conflict with each other or they will be in conflict with you. In either case, you have to learn how to manage these conflicts and hopefully resolve them.

As adults, we often find ourselves in conflict. The conflict can be minor or major. Usually, if it’s a major conflict and we feel seriously wronged, we often seek out legal advice. If the wrong impacts our rights, we often start a law suit seeking an amount of money to compensate us for the wrong. In other words, the trend is to keep the adversarial nature of the conflict going in court.

Legal advice – bringing people to court – costs a lot of money. It is also risky as there is no guarantee that our version of the conflict will be the one which the judge accepts. If we lose, we end up paying our own lawyer and also, potentially, a large portion of our opposing party’s costs as well. We also hand over the resolution of our dispute to a judge. The judge’s job is first to determine the facts of the case.  In order to do so, the judge must listen to witnesses and assess the credibility of their testimony. If they believe the witnesses who support our case, including ourselves, then we will likely win the case. If they don’t believe us and our witnesses, then we lose.

Psychologists tell us that it is virtually impossible for judges to determine whether someone is lying or telling the truth. How often have you felt that someone was lying out you only to find out later that they were in fact telling the truth.

The other problem is that we all have our own perspective on events. Our perspective is our reality. Many times in a court room, witnesses truly believe what they are saying under oath on the witness stand. Yet many times subsequent investigation has proven that the witness’s perspective on the events was very wrong.

Given the realities of the adversarial court system, should we have confidence in handing over the resolution of our conflicts to a system full of such frailties or are we better served by trying to find a solution to our conflicts in a system which we control and which allows us to determine what’s best for us and even perhaps for our opposing party? Can we find a “win-win” solution to the problem which caused the conflict?

That’s where mediation comes in. A professionally trained mediator can assist opposing parties to find a solution to their conflict. Good mediators first meet with each of the parties privately and confidentially. There are several purposes for these individual meetings:

  • To gain an understanding of each party’s perspective on the cause of the conflict
  • To get to know each party, that is, what is driving the conflict for them
  • To gain the confidence of each party so that they have some trust in the mediator’s ability to assist them
  • To see if the process of mediation has a chance of working for this particular conflict. If one party, for example, is very weak and unable to advance their own position without help, then mediation may still work but safeguards will have to be put in place so that he or she is negotiating with equal bargaining strength. That may mean, for example, bringing into the mediation an advocate for the weaker party, such as union rep or a lawyer.

If the mediator and all parties are willing to proceed after the individual sessions, then the mediator schedules joint sessions with the parties. The sessions are usually set for at least 2 to 3 hours and sometimes can span several days.

The mediator’s task is to set up an environment where the parties can focus on solutions to the problems which gave rise to their conflict. The mediator is not there to find solutions for the parties, although the experienced mediator can certainly share their knowledge about what solutions have worked for other people in similar situations. The parties have to find their own solutions. Research has demonstrated that people who find their own solutions will usually live up to their agreements whereas people who have had solutions imposed upon them will usually find ways to deny the outcome and continue the conflict.

The mediator will also try to ensure that emotional reactions are managed in a constructive way. Mediators understand from brain science, that strong emotions tend to override the brain’s ability to respond in a logical manner to problem solving. Strong emotions trump logic most if not all of the time. Consequently, the mediator will often separate the parties from each other to calm the emotions so they can re-focus on problem solving.

While parents can be good mediators with their children, it is unlikely that, without training, they can be good mediators for all conflicts. Mediators handle all types of conflict, from matrimonial disputes, to work place conflict, to shareholder disputes, to commercial building and other business contracts, and even disputes between rival nations. Good mediators are highly trained in mediation techniques and usually belong to a professional association which establishes professional standards which mediators are bound to follow. Good mediators help people to not only find solutions to immediate problems, but also to learn how to deal with future conflicts by gaining better problem solving and communication skills.

Conflict will be with us forever – that is the nature of humanity. We can learn how to resolve conflict in an interest based manner in which we seek a solution that can benefit all parties. Adversarial approaches to conflict should only be necessary where the parties involved are incapable for whatever reason of approaching life’s problems in a common sense and reasonable manner. There are unfortunate cases where court solutions are the only answer, but, in this day and age, where courts are overburdened and costly, we need to advocate for a better way for the majority of people.

Tom Dart, Counsel
Barriston LLP