Employment & Labour, Mediation

The art of the deal – inside the mediator’s mind

By Paul Russell, AdvocateDaily.com Contributor

A successful mediator needs to have both legal knowledge and empathy, Toronto mediator and employment lawyer Peter Israel tells AdvocateDaily.com.

“Mediation is a very delicate dance between fact, law, emotion, the parties and their lawyers,” says Israel, founding principal of PI Mediation.

“As a mediator, it is easy to forget that you are dealing with people,” he says. “While this is something you do every day, to them it is an intensely personal and important time.”

Israel says he starts by reading briefs from lawyers for each side, trying to understand the nature of the people involved. In separate meetings with the two parties, he gives them an overview of how the mediation process works, how the courts have mandated that they go through it before reaching trial, and the evaluative approach he follows in these sessions.

“As I do that, I watch their faces, and I try to make a personal connection to those around the table,” Israel says. “I’m not looking to take advantage or manipulate them, but I try to understand what strikes a chord with them, what approach will work with them and what I should say or stay away from.”

He says preparation and the willingness to understand the issues at play is key for anyone mediating employment law cases.

“It is such an intuitive process,” Israel says. “It uses as much emotional intelligence as actual legal knowledge. I try to establish a rapport with each side, understanding where they are coming from. You explore and highlight the uncertainty in each room and then offer certainty.”

While it’s important to validate the feelings of participants and understand what they are hoping to achieve, Israel says he sometimes has to “bring them back to reality, in terms of what the law allows. “A mediator can’t do anything but provide a neutral reality check, and hopefully closure.”

Every mediator brings a unique style and approach to the job, and is personally selected by lawyers who think they have something to bring to the table, he says.

“The mediator assists and guides the parties toward a settlement, without having any power to force a resolution,” Israel says. “You have to earn their respect, and make them understand that the only vested interest you have is in accomplishing the deal.”

Since this is a legal undertaking, he says mediators must always maintain their integrity.

Mediators have to analyze the facts in each case without prejudice or favour, though that can be difficult sometimes, Israel says.

“There is the temptation to be cynical,” he says, “as people frequently lie to us, or tend to overstate and exaggerate things. As lawyers, we just look at the facts and law.”

Israel says building trust from both parties is key to a successful mediation.

“I need to earn their respect, and show that I know what I’m talking about in terms of the law and the facts,” he says. “If I earn their respect, they put trust into my evaluative approach, and what it can achieve.”

Israel says that he is able to reach a settlement in the vast majority of cases.

“Sometimes it is not about justice or fairness, but instead what is achievable on that particular day,” he says. “If I do my job correctly, everyone is singing my tune. When there is actual co-operation, both sides can get to the result that I suggest is achievable.”

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