ADR, Mediation

Choice of mediator critical to dispute resolution

By Peter Israel

Whether as a result of Ontario’s mandatory mediation program or — as I’d like to believe — the growing appreciation of the benefits of alternative dispute resolution, there has been a steady growth in the number of mediators in employment law-related matters.

Some serve their clients better than others.

There are roster mediators as well as private mediators, and all have differing styles, education and experience. There are those who use mostly facilitative approaches, some who use evaluative approaches, some who believe it is not their function to strongly advocate for a resolution, and others who force resolutions by browbeating parties into settlement. Then there are those mediators who believe that their job is to simply go back and forth between rooms, simply exchanging the positions and offers from the respective parties.

While mediation may be mandated the selection of the mediator is not, and people need to know who they are hiring.

My advice is to ask questions, look at their website, and speak to your colleagues and opposite counsel. Find out about the mediator's style, philosophy and approach to determine what best suits your matter. There is nothing inappropriate about calling a mediator and asking questions, nor in telling him or her what you think is necessary for any particular matter.

The complaint I most often hear from counsel who utilize my services is that too many mediators are simply “message takers,” exchanging offers from the very beginning of the process without any explanation of their process or hearing the parties' theories or positions.

This “messenger strategy" is distasteful and less than efficient. The law and the legal system require and deserve more than positional bargaining.

I don’t believe in plenary sessions — except in exceptional circumstances. Putting all parties in one room is looking for failure. Lawyers will often puff their chests to demonstrate how zealously they are pursuing their clients’ interests. Emotions can run high and it often takes hours to fix what happened in the first five minutes.

I read all submitted materials very carefully before mediation and commence in each room with a precis of my process, my approach and what and how we are going to hopefully get to our desired end.

I approach mediation with a blend of styles, first with evaluative reasoning, what can each party prove, what facts appear to be more credible, what does decided authority hold, and what are the precedents presented by each party.

I earn respect in each room by demonstrating knowledge, experience, sincere non-judgment, rational analysis and neutrality. In most cases, I can find an acceptable resolution. The cliché of "hard on the facts and the law but easy on the people" is one I take to heart as a mediator.

You can take a strong view in law and on provable facts without being obnoxious, or overbearing. I prefer gentle persuasion.

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