Litigation bar ‘slow to understand’ the nature of mediation
By Rob Lamberti, AdvocateDaily.com Contributor
It is more important for a mediator to be skilled in the resolution process — where the attributes of patience, understanding, critical thinking and emotional intelligence are stressed — rather than having deep knowledge in a specific field, Toronto lawyer and mediator Eric Gossin tells AdvocateDaily.com.
"I admit a certain amount of frustration on the issue," says Gossin, partner with Devry Smith Frank LLP. "The mindset of the litigation bar appears to be a step away from the purist point of view that a mediator doesn't need to be an expert in their field.
"If you believe mediation is a process, the mediator's subject-matter knowledge becomes less important, because what they’re really doing is facilitating a discussion," he says.
But many lawyers hang onto the belief that a mediator should be proficient in the particular fields being mediated, Gossin says. He suggests it’s more important for the intermediary to be skilled in finding common ground and building relationships that develop win-win resolutions.
"That view has been lost by the litigation bar," he says.
Gossin says while there are mediators who develop practices within niches — such as medical malpractice and personal injury — they may not always be the best choice.
"Clearly, a mediator has to have some working knowledge in the field to be effective, but much less than the litigation bar would attribute to it," he says.
Trained mediators who weren't lawyers were introduced when the province launched mandatory mediation in Windsor, Toronto and Ottawa in 1999, Gossin says.
"I can't imagine the bar was very comfortable working with non-lawyers who were mediators," he says. "I think the litigation bar is still slow to learn and understand what the mediation process is really about.
"They come into my mediations positional, with their legal strengths, fully convinced they have strong legal positions and they stand by those even though the mediator is saying, 'I don't care if you have the greatest case in the world, it might be better for the client to settle this case.’”
Few can afford the alternative, which is to invest in a court challenge to determine if their position is correct, no matter how prepared they are as a legal team, Gossin says.
"A mediator's perspective is that they almost don't care what your legal position is,” he explains. “They take it into account, but they also look at whether there are other reasons to settle — even if there is a very strong case.”
Indeed, the Ontario government describes mediators, who are neutral third parties, as those who display numerous traits, including patience, acceptance of individual differences, flexibility, creativity and inventiveness, objectivity, ability to recognize and manage power, listening skills, and confidence in the ability of the process to generate a mutually satisfactory result.
"The world is figuring out there are ways to resolve disputes outside the court system, which has become unwieldy and extremely expensive," Gossin says.
What's important is the breadth of experience — whether a general legal practitioner or holding an MBA — that offers insights into alternative dispute resolution, he says.
"I bring to the table a background of a very general practice," Gossin says. "The work came from everywhere, mortgages, real estate, wills and anything that anyone would bring in. My entire career included a variety of areas of law."
He's handled a wide palate of cases involving disputes in commercial, estates, real estate and family law. A person who brings a broad spectrum of experience to the table as a mediator would be able to have "at least a basic conversation" on a number of topics, ranging from an understanding of the law to being able to read financial statements, Gossin says.
"I'm not an accountant, but I'm comfortable reading and understanding a financial statement," he says, adding a mediator should understand the fundamentals, but focus on working with parties to reach a resolution.
The province encourages interest-based mediation, which looks beyond the legal issues to study what the parties' interests are, Gossin says.
"Having a general background in corporate, commercial and real estate adds to the fabric that I bring," he says. "It doesn't weaken it, it strengthens it. I understand things that lawyers who specialize in personal injury don't understand.
"Some knowledge and expertise are clearly needed to understand the issues, even the terminology," Gossin says. "Being an expert, in my view, is counter-productive and not necessary, and the bar would be better served looking for mediators who are very good at the process."