Mediation

Expertise should not trump skill in mediator selection

By AdvocateDaily.com Staff

When trying to find the right person for the job, mediation skills are much more important than subject-matter expertise, says Toronto lawyer and mediator Eric Gossin.

Gossin, partner with Devry Smith Frank LLP, mediates in a wide variety of legal disputes, including personal injury, corporate and commercial law, real estate, and family law, stemming from the general practice areas he developed in the early years following his call to the bar.

“My view is that when parties are selecting a mediator, that person’s mediation skills should be the first consideration,” he tells AdvocateDaily.com.

“If you have an area of law with unique aspects or some degree of jargon, such as personal injury, a working knowledge of the subject matter is probably helpful, but I don’t think you have to be an expert.”

Gossin says his wide-ranging mediation practice runs against the current trend for extreme specialization, fueled by parties’ comfort with a neutral person who knows the sector inside-out.

“Lawyers have a habit of citing chapter and verse about what the law says, and will often claim that ‘the law is on my side,’” he says.

Gossin says that’s an over-emphasis on case law and the strength of each party’s side during mediation can mean missed opportunities to settle the dispute.

“The role of the mediator is to resolve disputes, and what has to be remembered is that the solution may not be a strictly legal one,” he says. “It may actually have to do with interests of the parties that are not clear on the surface, but which a mediator with a good skill set can identify.”

Gossin’s interest-based approach to mediation remains heavily influenced by the theories outlined in 1981’s Getting to Yes, the negotiation bible by Roger Fisher and William Ury that became must-read material for those in the burgeoning mediation field. That includes the concept of BATNA, an idea Gossin frequently invokes while exploring the non-legal interests of parties appearing before him, asking them to consider their “best alternative to a negotiated agreement.”

The idea works particularly well in emotionally driven areas of the law, such as estates, where the family history of the parties involved adds another layer to the dispute.

“A good mediator can sense that there is something else going on here, such as the desire of a sibling to reconcile or receive an apology from the other, and then facilitate that,” Gossin says. “That, in turn, can lead to a settlement.”

Even in commercial litigation, traditionally driven by apparently hard-nosed business decisions, he says mediators often overlook the emotional component of a dispute and its impact on the parties involved. For example, he once acted as counsel in a messy dispute over payment between an architect and a builder who later became his landlord.

“The architect had taken space in this building he had designed but wasn’t paid for everything,” Gossin says. “When the lawsuit was started, it made things very uncomfortable, because the architect was also a tenant of the people he was suing.”

When the case finally made it to mediation, the mediator facilitated a face-to-face discussion between the parties without lawyers or anyone else present.

“They sat down and sorted it all out in 15 minutes,” Gossin says. “The architect told me that if they had had a chance to talk like that and understand what was going on earlier, it would never have gone that far.

“What the case illustrates is the success you can have when a mediator is sensitive to and able to identify, the real interests of the parties by looking beyond the subject matter. This case wasn’t really about money, but something that went on in the process that they needed to address.”

Even when one party has a clearly stronger case, Gossin says a skilled mediator can leverage its unique set of facts, as well as the uncertainty and expense of a trial, to bring the parties to a mutually agreeable resolution.

“If you can convince the parties using reasons other than a strict reading of the law, settlement can be achieved,” he says.

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