Opportunity to ‘tell story’ in mediation paves the way to settlement
By Kate Wallace, AdvocateDaily.com Contributor
Over more than 30 years of practice, Toronto litigator and mediator Howard Winkler has always taken a problem-solving approach to his clients’ needs.
“When they come to me, they’re not really interested in arcane law,” he tells AdvocateDaily.com.
“They’re here because they have a problem and need a solution,” says Winkler, principal and founder of Winkler Dispute Resolution. “I always approach it from the perspective of what the client’s interest is in relation to the story they’re telling me. And then deciding the most effective and efficient way to help.”
The long-time litigator, whose practice focuses on libel, defamation, and tax, has always taken a mediation-like approach, looking for common ground between his clients and the other party.
“I’ve used litigation as a tool,” says Winkler, who now limits his litigation practice to cases that he feels are of public importance or advance the law in areas of interest to him, including libel, slander and reputation management.
Called to the bar 1984, Winkler was just a couple of years into his legal career when he took the Harvard Principles of Mediation program, becoming one of the first lawyers in the province to complete the training offered by the Advocates Society.
“I was interested in the psychology of dispute resolution in identifying effective solutions for my clients and I used what I learned in my litigation practice,” he says.
While he has long drawn on mediation approaches and tools in his casework, it wasn’t until four years ago, after a protracted, all-consuming tax litigation case, that Winkler made the switch, leaving his position as a senior partner at a major Toronto firm to go out on his own.
“When that case came to an end, suddenly, for the first time in my career, I had a clean slate. It afforded me the opportunity to say, ‘OK what do I want to do now?’”
The answer was clear: mediation.
Winkler says his disposition is well-suited to the work.
“All the training in the world will not make you an effective mediator. Technical training can make you better, but it comes down to a type of thought process and personality,” he says. “But it’s also experience-driven.”
With decades of practice as a litigator, he has a deep familiarity with the frustrations of court. Given the inherent risks and costs associated with going to trial, strategic dispute resolution is always his priority.
“I tell my clients they’re wrong to consider the ligation system as a justice system. It’s not. What it does is dispense a decision, from a third party, in a situation where the parties themselves are not able to resolve it. And that decision isn’t necessarily going to be just.”
Winkler’s risk-management approach to mediation recognizes the benefits of retaining control over the dispute resolution process.
“Until you get before a judge or jury, you have control over the risks. And most people prefer to be in control of their own destiny. The minute you step into court, you lose all control.”
Winkler also appreciates the range of options and considerations mediation allows.
“What a court can do is quite limited,” he says. For instance, the court cannot order a defendant in a defamation case to apologize to the wronged party. “The options in a mediation are much broader. In fact, they’re unlimited.”
Winkler says alternative dispute resolution can often offer emotional satisfaction in a way that going to court rarely does. That may include receiving an apology or just the experience of getting to share one’s story.
Unlike many mediators, Winkler allows opening statements from clients.
Take that away, “and you are depriving someone of something very important. There is something cathartic about a person being able to tell their story, and feel that they’ve been heard.”
Winkler encourages participants to speak on their own during this part of the process, rather than have lawyers speak on their behalf.
“It’s incredible, when that’s happened, even in commercial disputes, for the plaintiff to look the person in the eye who they believe harmed them, and to explain that. If they can get some recognition that they’ve been heard, that paves the way to settlement.”
Parties must be realistic about potential outcomes, and be willing to be disappointed or compromise for the benefit of reaching a settlement, Winkler says.
“In my experience, generally speaking at the end of successful mediation, both parties are grateful to have put the dispute behind them.”