Accounting for Law
ADR, Employment & Labour

Fisher takes practical approach to employment mediations

When Toronto employment mediator and arbitrator Barry Fisher began his career, his practice area was an emerging field.

“When I started, it was still called ‘master and servant law,’” Fisher tells AdvocateDaily.com.

“So that gives you some idea of how it has evolved.”

Founder of Barry Fisher Arbitration & Mediation, his eponymous Toronto mediation and arbitration firm, Fisher hasn’t simply witnessed but has been an active player in employment law’s development, most notably in creating the Wrongful Dismissal Database, an online tool published by Carswell to help determine reasonable notice.

Fisher started it originally for his own purposes.

“I was a young lawyer dealing with older lawyers who were always telling me I was wrong on notice periods, and I couldn’t figure out how they knew what it was,” he says.

He began charting cases, eventually organizing his unwieldy collection in an early data management program. To this day, Fisher edits the database, which has grown to more than 3,000 entries.

“Every keystroke is mine,” Fisher says. “By editing the database myself, I’m reading all the cases, and therefore I’m learning. It’s constant learning. And I don’t trust anyone else’s judgment,” he says with a laugh. “It’s my baby.”

Fisher will soon release a new product to help calculate damages in wrongful dismissal cases. He also blogs frequently, with his trademark humour and approachability, about employment law cases.

Called to the Ontario Bar in 1979, Fisher was drawn to his practice area for a couple of reasons.

“It was dealing with average people, who I’ve always felt more comfortable with. I was never a corporate-banking type,” says Fisher, who grew up in a Montreal suburb where his earliest ideas about employment came from the neighbourhood dads having decades-long careers at large corporations. “And I wanted to get into a practice area at the beginning. I didn’t want to be carrying someone’s bag for 20 years.”

In 1987, he took up arbitration part time, making the full-time leap to arbitrator and mediator in 2000. He even wrote a piece called “15 Reasons I Love Being a Mediator Instead of a Lawyer.” Entries including “not having to record point-ones,” "the smallest billing unit;" “Hanging out with lawyers is fun again;” and “Rarely having to see the same litigant more than once,” unlike lawyers, who often have clients for years. 

“When you’re a mediator you have an intense, close relationship for three hours, maybe a day,” he says. “It’s short and meaningful.”

Last year, Fisher did 260 arbitrations and mediations. For many years, like most of his colleagues, he used the joint-caucus model, in which both parties are in the room together, but found it ineffective and tedious.

“You’ve been working for a company for 20 years. You hate your boss because he fired you and demeaned you. You don’t really want to sit in the same room with him.”

Over the past few years, Fisher has favoured a “separate caucus” model, in which parties are not in the same room.

“The best anyone could ever say about a joint caucus was, ‘It wasn’t a disaster.’ So, I started asking myself, ‘Why are we doing something that at best is not destructive?’”

In the past three years, he did just one joint session, and “it was a disaster and it failed,” he says. “I try not to repeat failures and learn from my mistakes.”

When Fisher tells plaintiffs they won’t have to see anyone from “the company,” their relief is palpable. 

“Mediations are anxious enough. My job is not to make them worse. So, I eliminated a process I found to be counter-productive,” he says.

Fisher encounters all kinds of people in his work.

“This morning I was dealing with a production worker on an auto line,” he says. “Tomorrow I’m dealing with a senior executive at a high-tech company.”

Fisher, who was recently made a Distinguished Fellow of the International Academy of Mediators, says psychology is at least as important as legal knowledge and the facts of a case.

There’s no such thing as a company, he says.

“It’s just people,” Fisher says. “Somebody in that organization is making a decision. It’s always a human being making a decision. Corporations don’t have minds, only people do.”

Fisher starts most mediations by trying to get the parties to agree on “what a month is worth,” factoring in salary, of course, as well as stock options, bonuses, commission, and “the myriad of incentives that people work under,” Fisher says. “That’s where there’s significant money at play.”

He doesn’t seek offers at the outset.

“I just go back and forth, working the room,” he says. I’m trying to test with each lawyer what I call the range of possible outcomes.”

Between the parties, he carries “messages, ideas, offers, jokes.”

“Whatever it takes,” Fisher says. “My job is to get the best deal that the parties can agree on.”

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