Emotional intelligence a valuable commodity for mediators
By Rob Lamberti, AdvocateDaily.com Contributor
Gossin, partner with Devry Smith Frank LLP, says disputes are often multilayered, and it takes a skilled mediator to peel them back and understand what’s at the core.
“What separates a superior mediator from an average one is the ability to intuitively understand what those other interests are,” he says. “In estate mediations between siblings, for example, there’s a whole historical background — such as dad favoured you over me — that’s at play.”
Gossin says Ontario mediators practise interest-based mediation, which takes into account the legal rights of the parties while also trying to determine “what is going on under the skin,” to get to the root of the dispute.
The mediator moves away from the money and property issues, in an attempt to get one party to understand what is bothering the other side, he says.
“How do we address that so we can get them to keep talking?” Gossin says.
Getting the parties to acknowledge the other side’s interests, and redirecting them to areas where something positive can be accomplished, will help move them to a position that will break the impasse, he says.
“There is a large amount of restating or reframing the various positions, so clients move one way or another during meditation,” Gossin says.
“It’s common for lawyers to take the position that they have made their final and best offer, or to pronounce a stalemate,” he says.
But Gossin says that’s when the mediator then has to “dig into their toolbox” and determine what techniques can be used to get discussions going again.
“If there is a particular stumbling block, the mediator can try to convey that there is some possibility the other side is giving conciliatory signals — even if they’re not apparent,” he says. If the parties remain in mediation, it’s clear they are prepared to talk.
“Sometimes, you can try to negotiate to keep communications open in spite of the hard position. You deflect the issue and move onto to something that both sides have in common, which hasn’t yet been addressed.”
Gossin says mediators sometimes have to “very carefully” emphasize weaknesses in a case. In other words, the parties should measure the risk of continuing and understand a stalemate position isn’t going to resolve the matter, which is everyone’s aim, he says.
“That intransigence will lead to the possibility there won’t be a settlement, and I like to spell out what the consequences of that would be,” Gossin says.
If the matter goes to court, a judge will impose a ruling that both parties will have to live with, even though it may not be a satisfactory outcome for either, he says.
“You have to get the parties to somehow understand that,” Gossin says. “You’re not going to get everything you want, and an impasse is not helpful.”
Sometimes he will invite third parties into the mediation — such as a shareholder, a spouse, or business partner — if he thinks that will help move the matter forward.
“A mediator has to walk a fine line, careful not to undermine the legal advice of the parties’ lawyers,” Gossin explains.
Each lawyer has the obligation to put forth and defend their client’s case, but he says sometimes seeing what’s in the client’s best interests isn’t always cut and dried.
“It’s difficult for a mediator when we realize the impasse is because of counsel — even when you get the sense the client is prepared to move,” Gossin says. That sometimes happens in reverse, he says, where the clients are stuck, and the lawyers are encouraging them to settlement.
“That dynamic is a great challenge in mediation, and one of the things that separates the average mediator from a better one is their ability to recognize that tension between the lawyer's legal position and the client's — and whether one or the other is more enthusiastic in settling,” Gossin says.
“But sometimes people just want to fight,” he says. “Mediation can’t solve every case, but in most cases, it’s successful.”