Mediating disputes - A family law perspective
By Carolyn Lloyd
What happens when a Canadian family law lawyer from Lerners LLP goes to the Program on Negotiation at Harvard Law School to learn more about mediation?
THE ADVENTURE BEGINS
On Sunday, October 7, 2018, I ventured south of the border, with an appropriate level of fear and trepidation about embarking on a five-day course called “Mediating Disputes” at the Program on Negotiation at Harvard Law School (Executive Education). Not only was I surprising myself by venturing to a different country where I had no friends or family, I had also let myself be lured to an executive educational program at a university with an international reputation for academic excellence. I hadn’t been enrolled as a formal student in anything other than professional development programs since graduating from law school in 1998 and being called to the Bar of Ontario in 2000. I’m quite sure that no one would ever say that I don’t like a challenge.
WHY I AM DRAWN TO MEDIATION
I was perhaps too proud that my knowledge in all aspects of negotiation had been gleaned from the hands-on experience I had gained over 18 years of practising family law. I also prided myself as a “natural-born mediator” - having, as a child, resolved disputes with my neighbourhood friends, sometimes by encouraging them to put their hands on a tree together, and “talk it out”. My neighbourhood as a child had many trees with names as they were cherished as the sites and symbols of resolved disputes. Many such disputes were bitter, memorable and painful, as childhood disputes often are.
When I entered the legal profession, and even when I was in law school, I was drawn to personal and emotionally-charged disputes. I didn’t mind being caught in the centre of an argument, and I found that I was able to be persuasive and creative about both sides of arguments. Family law became a natural fit because of my endless fascination with human behaviour and psychology. I also had a low tolerance for boredom, and family law disputes are never boring. I always enjoyed going to the root of the problem, finding what was underlying the issues - what the real story was. I found that when I figured out the motivations, and often the source of pain and disappointment, was I able to manage the disputes effectively, whether that was in court or in another dispute resolution process.
I spent years acting as a lawyer (“counsel”) at mediations, primarily with the erudite and highly-determined Justice Lene Madsen, who was a family law mediator and arbitrator, and a collaborative family law lawyer and Children's Lawyer for about a decade prior to being appointed to the Bench of The Superior Court of Justice, Family Court in Hamilton in late 2016. It would not be an overstatement to say that the appointment of The Honourable Madam Justice Lene Madsen to the Bench shook my world. I had spent the better part of a decade as counsel at her mediations, and I felt that I learned how to mediate from that experience. Justice Madsen holds a Masters of Law in Alternative Dispute Resolution from York University, and I was hopeful that I had somehow gained from her skill set, by osmosis perhaps, having been counsel in her presence while she worked with a marathon level of endurance at achieving workable resolutions for family matters that would prevent problems in the future. We brainstormed together, with the parties and other lawyers, and we contemplated, crafted and created solutions that were often far beyond the scope of what might be achieved in court. The parties not only felt heard and understood, they felt that they had been an integral part of the process of establishing a new future for themselves.
There was nothing more fulfilling to me in my family law career than achieving these kinds of solutions to family law issues through mediation and the collaborative process. Court was always the last resort - the place where you ended up when you had exhausted all other possibilities. Surprisingly, court proceedings often landed back in mediation, far into the court process, even as a trial approached. I recall judges saying - “Give it to Lene. She’ll take care of it.” Justice Madsen’s calendars were perched on the judges’ benches in courtrooms, and we, as counsel, took note of that.
RE-BUILD RATHER THAN DECONSTRUCT
I remember that Justice Madsen and I, over time, came up with a new term for the mediated agreements called - “Parents as Priority Caregivers”. This phrase is much more positive than a “Right of First Refusal” to care for your child as is often a litigated issue in Family Court. The approach in mediation and collaborative practice often includes using the appropriate words and tones, and these words have a distinctive effect and message. The idea is to build up what has been broken down, and further not tear apart the issues and the people involved. The damage has been done, but that’s when the building process begins. It's crucial that professionals start to use their ingenuity, respect and innovation to re-build, rather than further deconstruct, a new family dynamic.
I started holding myself out as a mediator, on an informal basis without much marketing or exposure, after Justice Madsen left London to become a judge of the Unified Family Court in Hamilton in 2016. Further to my basic "Fundamentals of Mediation" course that I took in 2006 through the ADR Institute of Ontario Inc., I took "Advanced Family Law Mediation and Negotiation: Theory and Skills" at Riverdale Mediation in Toronto in November of 2016. I have enormous and ongoing respect for Hilary Linton and Elizabeth Hyde of Riverdale Mediation, who were my trainers and coaches. They are based in Toronto, however, and with my practice being in London, I did not have the chance to obtain all the practical internship hours that I needed for formal accreditation as a family mediator through the Ontario Association of Family Mediation (OAFM). I have accumulated some practical hours towards OAFM accreditation by shadowing Philip Epstein of Epstein Cole LLP in Toronto, but I was discouraged about ever being taken seriously as the mediator I know I am capable of being.
When I was not expecting it, there was a sign, and it arrived exactly when I needed it. My long-time friend and colleague, Rebecca Jaremko Bromwich, Ph.D., who is a professor of Conflict Resolution at Carleton University in Ottawa, amongst other important positions, posted a photograph of herself on social media in June of 2018 holding a Certificate of Mediating Disputes at Harvard Law School’s Program on Negotiation. She looked very happy, inspired and proud. I said to myself, this is it, this is what I need to do. I need to go to the Harvard Negotiation Institute where Roger Fisher and William Ury started it all - with “Getting to Yes” and beyond.
Rebecca encouraged me to take the course, with her only words of caution being that it’s an intense program, and I won’t have time to do anything else while I’m there. (She was right on the money with that advice - mediation is an endurance sport at the Program on Negotiation at Harvard Law School as it is in real life!). I registered for the October '18 course, booked my flights and hotel immediately, with the strong, and unwavering, support of my husband, who was adamant that I attend the course, even when I had second thoughts at the last minute.
THE GRIND OF THE MEDIATION COURSE
I entered the lobby at the regal Sheraton Commander Hotel on Garden Street across from Harvard Law School early on Monday, October 8, 2018. I grabbed my name tag, binder and tote bag. I walked into a circle of chairs. There were fifty chairs to be precise - with three chairs in the middle as an ominous sign of a “fish bowl”. There was nowhere to hide! My instructors introduced themselves, namely Professors Robert (Bob) Mnookin, Gary Friedman and Dana Curtis. The circle of participants were asked to introduce themselves, with a bit about their background and why they were there, with three words about why they wanted to mediate. It was a bit of a blur of apprehension for me at that point, bordering on horror, and I remember feeling like maybe, just maybe, this group of participants from about ten different countries was going to overwhelm me.
I then decided to turn it around completely - I gave it my all in every way. I was present in every moment and didn’t let my mind wander. I offered to be in the fish bowl for demonstrations. I didn’t let the fact that I'm Canadian, with my practice being exclusively in the field of family law, stop me from mediating a fact scenario that involved a multi-million dollar commercial dispute. All the fact scenarios made my head spin, but I ran with them, and as my course-mate and new friend, April Walker, so eloquently stated, I started to become comfortable with being uncomfortable. I let the process unfold with my "course-mates" - who were, without question, the most extroverted and confident group of people I have ever met.
My belief was confirmed that the understanding-based model to challenge conflict is the best way to resolve disputes. You shouldn’t need to break apart and shuttle back and forth as a conduit or messenger as a mediator, absent a highly compelling reason to do so. The process I learned works in a methodical but strategic way. It’s an art, not a science, but it does have a structure that is very effective.
THE PARTICIPANTS – MY “COURSE-MATES” AND NEW FRIENDS
I will never forget the people I met in the course, and I hope to continue to call the lecturers and participants my friends. Some of my memorable encounters with individuals were:
- April, the highly-skilled former litigation attorney from Orlando, Florida who is now throwing herself into conflict resolution full throttle;
- Judges Joe and Dave from Mississippi and Illinois, respectively, who will be embarking on mediation and arbitration practices after their upcoming retirements from the Bench, and who demonstrated an open-mindedness and wealth of knowledge from their judicial experience with a certain humility about doing something completely different;
- Sofia from India, who is a young lawyer already intrigued with mediation and dispute resolution and wanting to bring these skills into her practice at an early stage; Brook from Vancouver who is a brilliant commercial litigator and showed that mediation is in his blood too (I’m pretty sure there’s nothing he can’t do!);
- Justice Kathy from Vancouver who enjoyed the intense learning experience and said she was looking forward to returning to the more "relaxing pace" of her regular life as a judge;
- John, the experienced litigator from the Boston area who wants to branch out to a conflict resolution role - and drove me to distraction, on purpose, during this extended role play when we were opposing parties;
- Johnny from Glasgow who now lives in Australia and practises family law - we all struggled to understand his accent, but his affinity for the process was clear. The list goes on, and the enthusiasm in our group of fifty people, including our lecturers, was contagious.
I was impressed with the course coordinator, Vicky Peterson, an alumna of both Harvard and Yale Universities. She seemed to be playing her important and logistical role in the background, in a subtle way - but when she critiqued Brook’s performance as a mediator, her comments were insightful, observant and very constructive. I enjoyed chatting with Vicky during breaks about how she mediates in the arts community, which I imagine is a challenging task that involves the significant management of egos and agendas. The ability to mediate disputes goes far beyond legal matters and translates into management and business matters, and simple relations with one's own family and friends.
As a former varsity rower in university, I enjoyed waking up every morning overlooking the Charles River that was full of rowers. The rowers were taking on their day ferociously and full of energy, and this was both infectious and inspiring to me. The rowers on the Charles set the standard for the work I needed to do each day.
THE FUTURE IS NOT KNOWN – BUT THERE’S NO RETURNING TO A COMFORT ZONE
The participants at the course - having read more than 300 pages of advance reading materials prior to the course; having spent long and intense days together, with evenings of study and preparation; and having survived what I'll call "Day Four-Ever" that went from 9:00 am until 10:00 pm - bonded like a global family. We started off being at various levels of uneasiness, apprehensiveness and even being somewhat intimidated about being there, but at the end, the emotion and relief was palpable. The farewells were bittersweet, and we embraced each other with promises to stay in touch. We're all on a new path as mediators, at some level or in some way, as a result of this life-changing experience. How we use it is yet to be seen. The future is ours to choose, and it’s up to us never to go back to a comfort zone.
Change only happens when you leave that zone and I, for one, will never go back to the same place I was before this course. The experience was a defining moment in my ever-evolving career. I am confident now that I’m not only a family law lawyer who litigates, negotiates, acts as counsel at mediations and arbitrations, and practices collaborative family law – I am a mediator who is going to be actively mediating family law disputes in the very near future.