By Peter Chauvin and Doug Melville

Welcome back to another year of informative ADR-related articles to read at your pleasure, courtesy of your colleagues in the profession.

By Brian Wilson and Kimberly Whaley

In the estates area mediation is an attractive alternative to litigation for many reasons. Mediation is less costly, and faster. Estates not only have legal issues that need to be resolved but also emotional issues that need to be addressed. Estate matters are fraught with loss, sibling rivalry, feelings of anger, jealously and greed.

In examining the boundaries of the privilege attached to the mediation process, the following two important and interconnected issues are explored:

1. To what extent are communications made during the course of a mediation protected by privilege?

2. Can a mediator be compelled to provide evidence in relation to communications made during the course of a mediation?

By Paul M. Iacono, Q.C.

Every lawyer in Ontario whose practice involves any aspect of civil litigation is well aware of certain jurisdictional changes that are pending, combined with certain changes to the Rules of Civil Procedure, all of which are scheduled to take place effective January 1, 2010.

Reviewed By Colm Brannigan

Negotiation is a complex process involving psychology, emotions and communication. Just when you think that everything that needs to be said has been said, in one or more of the vast number of books and articles on the topic, another interesting work comes along.

By Iris L. Pichini

An academically-oriented look at the interplay between gender, language, power and their impact upon the mediation process.

By Barbara Franklin

Two situations recently arose requiring family members to seek legal counsel. Their experiences made me appreciate just how many opportunities we have to work with and for our clients.
 

Editors:
Peter Chauvin
Doug Melville

Peter Chauvin* and Doug Melville**

Welcome back to another year of informative ADR-related articles to read at your pleasure, courtesy of your colleagues in the profession.

We are most fortunate to have both some repeat contributors and some new contributors who provide a fresh collection of articles for each addition. From the practical to the philosophical, the articles reflect the broad range of ADR practice and the diverse skills, experience, and perspectives which one finds in this field.

To our contributors, our heartfelt thanks for sharing your time and ideas with us. For our readers, enjoy! ... And consider contributing something yourself to a future edition.

Best wishes for a safe and happy holiday season.

*Peter Chauvin, Arbitrator/Mediator, Chauvin Dispute Resolution Inc.

**Doug Melville, Ombudsman and CEO, Ombudsman for Banking Services and Investments
 

Brian Wilson* and Kimberly Whaley**

Why Mediation
In the estates area mediation is an attractive alternative to litigation for many reasons. Mediation is less costly, and faster. Estates not only have legal issues that need to be resolved but also emotional issues that need to be addressed. Estate matters are fraught with loss, sibling rivalry, feelings of anger, jealously and greed.
Where parties are often family members, mediation can provide the first step in improving the lines of communication between the disputants. Litigation is more likely to increase the acrimony between the parties.

While litigation is a public process, mediation allows the parties to keep sensitive disputes private.

In litigation judges impose decisions upon the parties. Mediation provides a forum in which parties actively participate in finding a creative solution.

Mediation Process

Right Based vs. Interest Based

Although mediation can take many forms, there are basically two styles. One, is evaluative, sometimes referred to as “right-based” mediation, which generally focuses on the disputants’ legal rights. The other is facilitative mediation, sometimes referred to as “interest-based” mediation, which focuses on the disputants’ underlying interests and goals.

Evaluative mediators rely on their expertise and experience to assess situations and reach conclusions about the relative merits of the arguments that are being presented to them. These mediators are often retired judges, politicians, senior lawyers, or accountants, who have a lot of experience in a particular field.

Facilitative mediators attempt to determine why the parties take the positions that they do and encourage the parties to generate options that satisfy their interests. The mediator’s perception of what is right and what is fair will not play a major part in the process; rather the mediator focuses the parties on objective criteria and assists them in choosing from among possible options for resolution. Substantive expertise is not a must for a facilitative mediator but it can be of assistance in generating creative options to resolve disputes.

In estate mediation, either evaluative or facilitative mediation can be used. Counsel will have to determine the level of expertise required to help resolve the matter as well as clearly evaluate what their client wants to resolve. A technical estate dispute such as the interpretation of a trust or will provision may require the expertise of a retired judge, or an estates litigator to engage in right-based mediation. A highly emotional estate dispute such as guardianship or support claims may require a more interest-based mediation to resolve the dispute. However, having a facilitative mediator with substantive expertise in the area of estate disputes is of assistance in the event that the process needs to evolve from a facilitative mediation to an evaluative mediation to deal with specific legal issues.

Mandatory Mediation
In Ontario, there is mandatory mediation for estates matters in Toronto, Ottawa and the County of Essex, under Rule 75.1 of the Rules of Civil Procedure. 

Under Rule 75.1, proceedings relating to estates, trusts and substitute decisions are directed to mediation in the absence of a court ordered exemption. Within 30 days after the last day for serving a notice of appearance, applicants must bring a motion for directions with respect to the particulars of the mediation, including who is to attend, how the costs of mediation will be allocated and what the issues are to be mediated. Thirty days after that, the parties must select a mediator. At least 7 days before mediation, parties must provide the mediator with a statement of issues.
In jurisdictions where it is not mandatory, mediation can be requested through an Application to Court for an Order giving Directions. The Court will often grant such an Order where the estate is not large and a quick and cost-efficient means to settle the dispute is required. 

Types of Estate Issues Mediated

The types of issues mediated in the area of estates are the following: will and estate challenges; dependant support claims; contested passings of account; power of attorney litigation; trust disputes, guardianships for property or for personal care; elder law issues and elder abuse; capacity proceedings; trustee and fiduciary litigation; and the tax considerations and consequences arising in the estate. All of these issues benefit from a mediated resolution.

What Can Counsel Do?

Prepare the Client

One of the most important aspects of successful estate mediation is the preparation of the client. This includes procedural preparation, such as, describing the mediation process and assuring the client that neither the mediator nor counsel will permit abusive behavior during the mediation.

In addition to procedural preparation, clients benefit from a substantive analysis of their disputes in advance of the mediation. This helps the client understand what legal issues need to be resolved. Sometimes clients are so caught up in the emotional disputes that they lose sight of the legal issues. Therefore, it is important that counsel knows how to manage client expectations. Counsel in most estate disputes will need to emphasize the need for patience and understanding.

Be Prepared

It is important that counsel be prepared. This includes having a thorough knowledge of the estate assets, and the law. It also includes participating in the development of creative resolutions. Knowing what your client wants and trying to come up with creative ways to achieve it is more likely to result in a successful mediation. In some cases, clients are looking for something as simple as an apology.

Prepare the Mediator

It is up to counsel to ensure that the mediator is also well prepared before the mediation. This includes the right type of disclosure. For example, in a will challenge, counsel should produce the solicitor’s records. If the issue is a guardianship application, medical records of the incapacitated individual need to be ready for disclosure. In other words, you need meaningful disclosure for meaningful mediation.

*Brian Wilson, B. Comm., LL.B., CA, TEP, is a partner at Wilson Vukelich LLP and is an Estate Mediator with estatemediators.ca. Brian can be reached at brian@estatemediators.ca and at 905.940.9130.

**Kimberly Whaley, C.S., TEP, LL.M. LL.B., is the principal of the law firm, Whaley Estate Litigation and is an Estate Mediator with estatemediators.ca. Kimberly can be reached at kim@estatemediators.ca and at 416.925.7400 ext. 250.

The authors wish to acknowledge and thank the contribution of Jag Gandhi in writing this article.

Jayson W. Thomas*

In examining the boundaries of the privilege attached to the mediation process, the following two important and interconnected issues are explored:

1. To what extent are communications made during the course of a mediation protected by privilege?
2. Can a mediator be compelled to provide evidence in relation to communications made during the course of a mediation?

It is a well established common law principle that mediation is a confidential process, such that communications made during the course of a mediation are protected by settlement privilege. This principle is codified by Rule 24.1.14 of the Rules of Civil Procedure, applicable to mandatory mediations in Ontario. However, there are exceptions to the privilege. For instance, where negotiations during a mediation result in a consensual agreement and the existence or interpretation of that agreement is put in issue, a court may look at the agreement and the dealings between the parties to determine whether a settlement agreement has in fact been concluded. Nevertheless, in making this determination, a court will rarely, if ever, accept the evidence of the mediator who conducted the mediation, absent an important overriding public interest.

The Extent of Mediation Privilege: The Wigmore Conditions

To determine whether communications that occur during the course of a mediation are privileged, several courts have applied the following four-part test, commonly referred to as the Wigmore conditions:¹

(i) the communications must originate in a confidence that they will not be disclosed;

(ii) the element of confidentiality must be essential to the maintenance of the relationship in which the communication arose;

(iii) the relationship must be one which, in the opinion of the community, ought to be sedulously fostered; and

(iv) the injury caused to the relationship by disclosure of the communication must be greater than the benefit gained for the correct disposal of the litigation.²  

The first three conditions will almost always be satisfied in the context of a mediation. In looking at the first condition, it is important to note that virtually every mediation is prefaced by the parties executing a mediation agreement whereby they acknowledge and agree that communications made during the course of the mediation will be confidential. As noted above, the Rules of Civil Procedure codify the confidentiality of communications made in a mandatory mediation, such that this factor will always be satisfied in a mediation conducted pursuant to Rule 24. With respect to the second condition, the Divisional Court in Rudd v. Trossacs Investments Inc. held that “[i]n order for mediation to succeed, parties must be assured of confidentiality, so that discussions can be free and frank.”³ The ability to engage in such discussions is fundamental to the mediation process, such that this condition will almost invariably be met in the context of a mediation.

With respect to the third condition, the Divisional Court in Rudd held that by virtue of the fact that the Rules of Civil Procedure make mediation mandatory in a number of circumstances, “[t]here is clearly a significant interest in protecting the confidentiality of discussions at mediation in order to make the process as effective as possible”.⁴ Further in this regard, a number of public policy considerations underlie the privilege attached to communications made during the course of a mediation. In Stewart v. Stewart, the following considerations were outlined by Justice Moen of the Court of Queen’s Bench of Alberta:

(i) “[u]sually, parties are more satisfied when they can achieve a settlement rather than having a third party, that is the court, tell them what they are going to do”;

(ii) “settlements between parties are often more creative and designed to satisfy both of the parties”; and

(iii) “settlements cost the court and the parties much less in financial terms and the parties in emotional terms”.⁵  

On the basis of such public policy considerations, it is clear that communications made in the context of a mediation ought to be sedulously fostered.

The final Wigmore condition requires a balancing of the public interest in preserving the confidentiality of communications made during the course of a mediation versus the public interest in disclosing such communications.⁶ Whether this condition is satisfied will always be a fact specific inquiry determined by the nature of the public interest for which disclosure is sought. For instance, it has been held that there is an overriding interest in disclosing communications made during the course of a mediation conducted in the context of a family law dispute to protect children from potential criminal activity.⁷ Given this high burden, it will only be in the rarest of circumstances that a court will likely find an overriding public interest favouring disclosure of communications made in the course of a mediation.

Accepting or Compelling a Mediator to Give Evidence

The chief exception to mediation privilege is where a settlement agreement has been concluded between the parties and a dispute subsequently arises as to the existence or interpretation of that agreement.⁸ In such a case, a court may properly look at certain communications made during the mediation to resolve the dispute. However, this exception does not necessarily allow a court to receive the evidence of a mediator to assist in resolving the dispute.

Aside from producing a settlement agreement for the court to examine, if one was executed, parties will ordinarily seek to introduce their own evidence about the communications alleged to have resulted in an agreement as proof of the existence of the agreement or a term thereof. However, the individual most likely to have the best evidence of the communications made during the course of the mediation is the mediator herself. This is primarily because the mediator is seen as a neutral to the proceedings. As such, a party may be tempted to compel a mediator to provide evidence to the court as to what communications were made during a mediation.

This raises the question of whether a mediator can be compelled to give evidence as to communications there were made during a mediation. In Rudd, supra, the Divisional Court found that on the facts before it, the mediator could not be so compelled. The mediation agreement entered into between the parties in that case contained the standard term that the parties would not make the mediator a witness. One party to the settlement agreement sought the evidence of the mediator to establish its case for rectification of the executed agreement.

At the outset, the Court noted that the mediator’s evidence of what transpired at the mediation was not the only evidence available; rather, the parties could provide the Court with their own relevant and admissible evidence. In determining whether to disturb the parties’ mediation agreement in relation to the mediator’s confidentiality, the Court looked to the Wigmore conditions. With respect to the fourth condition, the Court held that “[a]bsent an overriding public interest in disclosure, their agreement should be respected.”⁹ In so holding, the Court noted that parties to a mediation are less likely to engage in full and frank disclosure which is “fundamental to the mediation process and to the likelihood that [mediation] will lead to a resolution of a dispute”, absent an assurance of confidentiality.¹⁰ Moreover, the Court noted the danger that a mediator will not appear neutral to the parties in a mediation if she could be required to give evidence in proceedings between the parties.¹¹ Given that there was no overriding public interest favouring disclosure, the Court refused to compel the mediator to give evidence.

A similar result was reached in Hagel v. Giles, wherein the defendants sought judgment in accordance with a settlement agreement they alleged was concluded at a mediation. In support of their motion, the defendants filed an affidavit sworn by the mediator.¹² The Court refused to consider the mediator’s affidavit, stating only that it was “unnecessary” to do so.¹³ While the Court in Hagel expressly acknowledged that it was not deciding the issue of whether filing a mediator’s affidavit was proper, the Court’s outright refusal to consider the issue demonstrates the general reluctance of a court to breach the confidentiality associated with a mediator by accepting her evidence.

It is clear from these two decisions that in examining communications made at a mediation where the existence of a concluded agreement or the interpretation thereof is at issue, a court will not compel or accept a mediator’s evidence, absent an overriding public interest in disclosing such communications. This general rule is consistent with the goals of encouraging settlement at mediation. It does so by assuring parties to a mediation that the mediator will be a neutral party thereto, thus encouraging the full and frank discussions fundamental to the proper working of the mediation process.

*Jayson W. Thomas is a civil litigator who has recently opened his own practice, Thomas Law, with a focus on commercial and real estate litigation. He may be reached by telephone at (647) 347-5450, or by email at jthomas@toronto-law.com.

_____________________

¹ For example, see Stewart v. Stewart, 2008 CarswellAlta 2212 (Alta. Q.B.) [“Stewart”], at paras. 9 and 18; Rudd v. Trossacs Invesments Inc. (2006), 79 O.R. (3d) 687 (Ont. Div. Ct.) [“Rudd”], at para. 26; H. (A.) v. H. (J.T.) (2005), 40 B.C.L.R. (4th) 348 (B.C. S.C.) [“H. (A.)”], at para. 20.
² Rudd, ibid, at para. 26.
³ Rudd, supra, note 1, at para. 32.
⁴ Rudd, supra, note 1, at para. 33.
⁵ Stewart, supra, note 1, at para. 7.
⁶ Rudd, supra, note 1, at para. 34.
⁷ Rudd, supra, note 1, at para. 29, citing Pearson v. Pearson, [1992] Y.J. No. 106 (S.C.Y.T.) (QL) at pg. 2.
⁸ Rudd, supra, note 1, at para. 24. See also: Stewart, supra, note 1 at para. 19, citing H. (A.), supra, note 1, at para. 33, and Rogacki v. Belz (2003), 67 O.R. (3d) 330 (C.A.), at para. 18.
⁹ Rudd, supra, note 1, at para. 37.
¹⁰ Rudd, supra, note 1, at para. 39. (Words added)
¹¹ Rudd, supra, note 1, at para. 40.
¹² (2006), 80 O.R. (3d) 170 (S.C.J.) [“Hagel”].
¹³ Ibid, at para. 9.

Paul M. Iacono, Q.C.*

Every lawyer in Ontario whose practice involves any aspect of civil litigation is well aware of certain jurisdictional changes that are pending, combined with certain changes to the Rules of Civil Procedure, all of which are scheduled to take place effective January 1, 2010.

In preparing these remarks, my intention was to focus on how these specific changes will affect the practice of civil litigation, in the context of how lawyers will use Alternative Dispute Resolution strategies in this new era.

I begin with the proposition that all of these changes have their roots in the comprehensive report prepared by The Honourable Coulter Osborne, Q.C. entitled Access to Justice.¹ The theme of that report was the conduct of a civil law suit in today’s litigation climate has become too costly, takes too long and for that reason only well-healed litigants can afford to take matters to a verdict.

The theme of the Osborne report was “making access to justice available to every citizen in Ontario”. In addition, a big part of his theories focused on “proportionality”. In other words, you can’t litigate a $100,000.00 law suit for $50,000.00. The costs and the amount of court time are out of proportion to the matter in dispute.
The reforms and rule changes that will be coming into force are designed to achieve proportionality in the conduct of a civil law suit.

The Jurisdictional Changes 

Effective January 1, 2010, the jurisdiction of the Small Claims Court in Ontario will increase to $25,000.00. In addition, the jurisdiction of the Simplified Rules will increase to $100,000.00. The reason for these changes is obvious. Procedures in the Small Claims Court are designed to be less formal, more streamlined, all with a view to disposing of cases in a matter of hours of court time, as opposed to days. Always remember that the Small Claims Court is designed so that litigants can represent themselves, if they choose to do so. Mediation and settlement conferences are now enshrined as part of what transpires in this court. It is also noteworthy that it is the busiest court in Ontario in terms of the number of proceedings that are launched. With the increase in the monetary jurisdiction that number will sky-rocket. 

In a similar fashion, the Simplified Rules codify procedure and limit production and discovery, with a view that a case in Superior Court will be finished in a day or days as opposed to weeks. All of these changes are focused on reducing barriers to our citizens who have discovered they cannot afford to finance a law suit. The increase in the monetary jurisdiction at this level will also dramatically increase litigation volume. 

The increase in the jurisdiction of the Simplified Rules will automatically increase the number of mediations that are done in the Province because the very nature of these Rules require that a mediation be done prior to the parties getting access to a court room. A very important aspect of these monetary changes is that it will give the newer members of the bar more opportunities to hone their courtroom skills, something that has been lacking currently. This will also be a positive contribution to proportionality, in terms of cost. When it comes to proportionality, if ADR is anything it is “PROPORTIONALITY.” When you consider that a complicated personal injury matter can be mediated to a conclusion in a day or less, as opposed to weeks of trial time, that is proportionality in neon lights.

Mandatory Mediation

There is an underlying theme in all of the new proposed changes in the Rules that the bench needs to be more involved in decisions concerning proportionality. That is the reason the Rules Committee is seeking to restore case management in jurisdictions where there are Masters available, namely Toronto, Ottawa and Windsor. In conjunction with case management, Mandatory Mediation will be re-established.

This Rule simply states that within 180 days of the filing of the first statement of defence the parties must mediate. There is built-in flexibility in that if the parties file a consent or bring a motion, the mediation can be adjourned until the parties are ready. If you do neither, a mediator will be assigned and you must conduct that mediation within 90 days. In addition before you can set an action down for trial you must certify that a mediation is either scheduled or concluded. In theory, cases already in the system as of Jan, 1, 2010, will have to mediate by the end of June unless the time is extended. The bar will probably have some slack on this issue because the court office does not have the manpower to deal with this.

This Rule change will pose a challenge for the personal injury bar. In this particular area of practice Counsel are hard pressed to arrange discoveries within 6 months. It is impossible to mediate a personal injury case without having the benefit of examination for discovery. What this will mean is that Counsel practising personal injury law will be required as a matter of course to file the consent immediately. It will become a pro forma matter, when pleadings are exchanged. It remains to be seen whether the long term impact of this Rule, will once again affect the scheduling of trials. This change will have a negative aspect on proportionality because the perfunctory consent becomes an item of costs.

The reference to the scheduling of trials relates to what occurred in the spring of 2004, when trials dates on the long trial list were back logged to the extent of 38 months. That situation resulted in a practice direction altering the timing of mediation and eliminating mandatory mediation. This is an area which will have to be watched closely.

Many aspects of the new rules focus on mediation because private ADR is the only expandable resource available to Civil Justice. With the spotlight on proportionality however, the way we mediate has to be proportional as well. Mediation in Small Claims Court cannot go on all day. Counsel are going to necessarily tailor the documentation, presentation and negotiating style to the amount in dispute. This means eliminating all of the “window dressing,” in the memo, using bullet points effectively, and shortening opening statements.

The Use of Experts in Civil Litigation

Trial judges estimate that it takes a day to a day-and-a-half for an expert witness to be examined in chief and cross examined. Sometimes in medical malpractice cases, it takes longer. But generally, in more typical personal injury cases, a day to a day-and-a-half is considered sufficient. In motor vehicle cases each side has a minimum of three experts. That means that with expert witnesses alone, the trial will take six to nine days. Experts are a huge cost and a significant consumer of court time, hence a negative aspect of proportionality. Can we eliminate the experts from the witness box?

The Osbourne Report focused a great deal of attention on this issue and ultimately the Rules Committee added: 

Rule 4.1.01 The Duty of an Expert:

(1) It is the duty of every expert engaged by or on behalf of a party to provide evidence in relation to a proceeding under these rules,

(a) to provide opinion evidence that is fair, objective and non-partisan;
(b) to provide opinion evidence that is related only to matters that are within the expert’s area of expertise and
(c) to provide such additional assistance as the court may reasonably require to determine a matter in issue. 

(2) Duty Prevails —The duty in subrule (1) prevails over any obligation owed by an expert to the party by whom or on whose behalf he or she has been engaged.

The thrust of this change is to deal with those lawsuits where the parties wage war by expert, each side seeking to have more experts than the other. Mr. Osbourne also commented on the rule that allows trial judges to limit the number of experts to three per litigant. It is easy to see how these changes would help proportionality.

A.D.R. Solutions Dealing with Expert Witnesses

1. The Joint Experts

(a) The parties agree on one expert on each medical issue and agree to be bound by that theory; or

(b) Each party submits a list of three experts whom they are prepared to abide by on a medical issue. They keep exchanging lists until they find an expert in common.

(c) When an expert is agreed upon, that expert decides the issue and the case proceeds on that expert theory.

2. The Expert Panel

(a) Each side has an expert on a medical issue. Counsel each agree on another expert who will act as an umpire and the three experts then collaborate as a panel with the umpire deciding the theory upon which the case will proceed.
This type of proceeding would be binding.

(b) Alternatively, the two experts chosen by each of the counsel could select the third expert themselves and proceed as above.

3. Variation on the Expert Panel

(a) Each side has an expert. These experts, before they provide a report, choose a third expert (neutral) on the basis that the third party neutral could provide input into their reports. They choose the neutral prior to report preparation. In the beginning, the neutral is only asked to agree to receive preliminary reports and read them; nothing else.

(b) Once the neutral expert has received the preliminary reports, the third party neutral will identify areas of agreement and disagreement. The neutral would provide a summary at this point, and in discussions with the other two experts, attempt to see if consensus could be reached on those items where they do not agree.

(c) If the neutral is requested, that expert will thereafter provide a report. At the very least at this stage, the neutral would provide an evaluation of the various reports;

(d) Essentially the neutral is there to achieve consensus.

4. Issue Resolution

Bring the experts together with counsel and a facilitator. Have a joint dialogue regarding each expert’s theory. Use a private facilitator and ADR concepts to get to a consensus. If this were a perfect world and you could find a facilitator who had the capability and talent of conducting a ”Socratic Examination in Chief” of the opposing experts, you could achieve a consensus theory upon which the case could proceed. The problem is of course, that, facilitators with that kind of skill are rare.

Bifurcation of the Issues in Dispute

The Osbourne report focused a great deal on the concept of the bifurcation of issues. The underlying concept is that sometimes a long trial can be broken down into parts; and sometimes the parts will take up less court time, and once they are determined other more time consuming aspects of the case can be eliminated.

The classic example would be the catastrophic auto accident case where liability is hotly contested. In such a case the liability issue compared to the damage issue will take far less court time than the damages aspect of the case. This is the type of case that lends itself to bifurcation. This is Rule 6.1- Separate Hearings. If the parties consent the court may order a separate hearing on one or more issues including liability and damages.

Once the decision is made to hive off such an issue, there are ADR options available to deal with the problem. The most obvious is an arbitration of the liability issue; but mediation can be an option as well. Multi party disputes also lend themselves to bifurcation. I am thinking of those cases where sometimes defendants are added only as a precautionary measure in circumstances where they have little or no exposure to liability.

When it comes to bifurcation counsel often express concerns about strategy, I believe these can be worked out. The classic example is a badly injured plaintiff whose liability position is weak. In that kind of case Plaintiff’s Counsel’s concern is that bifurcation eliminates the damage evidence which is always very sympathetic and may influence a liability determination. There is a solution; an agreement on damages in exchange for consent on bifurcation. This is a proposition that can be mediated.

Proportionality - Fitting The Budget For The Battle

Now that the administration of justice has clearly focused the spotlight on the economies of conducting law suits, it is clear that alternative dispute resolution, particularly mediation and arbitration, is going to play an important role as the Litigation Bar proceeds down the road under these new Rules of Civil Procedure.

There will be mediations at all judicial levels: Small Claims Court, Simplified Rules and Superior Court actions. Before we know it, we may even have ADR in the Court of Appeal.

It is important to keep in mind that mediations at the various court levels will be very different, they will be time limited and they will be cost driven. You will not be able to produce a 30-page mediation memo in a Simplified Rules case. Similarly, mediation in a Small Claims Court case will not last more than an hour.

In Ontario today we are living in an ADR world and the quicker the Litigation Bar recognizes that the better off they will be. For litigation lawyers today, particularly those practicing in the personal injury field, the mediation has replaced the trial. So many cases settle at mediation that the system is capable of dealing appropriately with those cases that reach a pre-trial.

All of this means that counsel will have to adjust the way they do things to the form in which they are litigating. This means that mediation memos will have to be more focused and will contain less “window dressing”. A good way to do this is by using bullet points instead of long paragraphs.
When you actually get to the mediation statements, in certain cases there will be no opening statements. In many, the opening statement will be time limited. Our advocacy will, of necessity, become more effective and more persuasive.

We have made changes before; some of them were not for the better. When we made substantial changes to the Rules of Civil Procedure in the 1980’s they were designed to front- load the process so that cases would be settled more quickly. It was always my view that that’s what started us down the road of costly litigation because lawyers became more focused on the process and forgot about ultimately resolving the dispute.
In the 1990s, in the name of economy, we did away with the Circuit Court and the County Court. In effect, by now increasing the jurisdiction of the Small Claims Court and Simplified Rules we have reinvented the County Court.

Where these new changes in the rules will lead us, no one knows, but as long as civil justice and ADR remain tied at the hip, we at least have a chance at success.

* Paul M. Iacono, Q.C., Mediator and Arbitrator, is the principal of YorkStreet Dispute Resolution Group Inc. and is Counsel to Beard Winter LLP. Paul can be reached at piacono@yorkstreet.ca and 416-866-2400. Please visit the website at www.yorkstreet.ca

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¹ Civil Justice Reform Project, Findings and Recommendations, The Honourable Coulter A. Osbourne, Q.C., November 2007

BOOK REVIEW

112 Ways To Succeed In Any Negotiation or Mediation: Secrets From A Professional Mediator by Steven G. Mehta
 

Reviewed By Colm Brannigan*

Negotiation is a complex process involving psychology, emotions and communication. Just when you think that everything that needs to be said has been said, in one or more of the vast number of books and articles on the topic, another interesting work comes along.

This book is radically different from most on the subject. In it, Steve Mehta has done an excellent job of breaking down complex processes and ideas into manageable bites. By taking this approach, he has made negotiation understandable at a basic level especially to the general reader. This is not an easy thing to achieve. It is not written as an academic work, but it certainly has educational value to the reader.

Professional negotiators whether in business or law might be tempted to dismiss the book as being at an introductory level when compared to their skills and experience. That would be a mistake. Its simplicity belies a very high degree of sophisticated understanding on the part of the author who is a prominent lawyer mediator in California. His ability to drill down to the heart of what is involved in the negotiation process is clear.

Like much of the literature on the subject, the book is based on fairly well known truisms:

• The nature of the negotiation is affected by the relationship with the other person.
   
• Each side’s interests are more important than each side’s positions.
   
• In negotiations, just as in life, the little things often count more than the big things.
   
• No matter what you do, you cannot convince another person to do things for your reasons. You must convince people to do things based upon their own reasons.
   
• There is no magic technique or trick that will make people do things in negotiations.

Based on this, the author has broken the book down into logical sections which follow the stages of negotiation:

• Before there was a negotiation, there was the negotiation about the negotiation.
   
• Preparing for a negotiation.
   
• Negotiating styles.
   
• Where to start.
   
• The negotiation.
   
• Negotiating with a client.
   
• Using a neutral mediator.
   
• A little bit more.
   
• The after-party.
   
• Ten common mistakes made in negotiation and mediation.

Each section is then broken down into one or two page mini explanations of important aspects of the section’s topics. This is an effective way of communicating the complexity of negotiation in an easy to read and understand format.

Overall I enjoyed the book. I particularly liked the section on “ten common mistakes made in negotiation and mediation.” While perhaps not a critical part of an experienced negotiator or mediator’s library, it is definitely worth reading.

There is also potential for the book to be a significant part of any professional conflict resolution practice’s marketing plan. It is the perfect book to give to clients as part of an intake process. It will help inform your client and prepare them for either negotiation or mediation. An informed client is a better client.

Since what we do is really all about communication, and this book does it extremely well, using it as both a marketing and educational tool is a true “win-win” for everyone involved.

112 Ways To Succeed In Any Negotiation or Mediation: Secrets From A Professional Mediator
by Steven G. Mehta
Bloomington, Indiana, AuthorHouse, 2009,
215 pages.
ISBN: 978-1-4839-8391-2

*Colm Brannigan, is a mediator in the GTA and can be contacted through his website, www.mediate.ca or by e-mail to colm@mediate.ca

Iris L. Pichini*

The first installment of a three part essay

Introduction

It has been maintained by many scholars and practitioners alike that mediation is an effective vehicle for resolving disputes. Although far from being a monolithic process, a common understanding underlying the concept of mediation is that it is a process by which disputants, aided by a neutral third party, are able to discuss, clarify and compromise on issues in order to reach a consensual settlement outcome.¹ Based upon the principle of self-determination which recognizes the rights of persons to make their own voluntary non-coerced decisions, mediation allows the disputing parties to shape the outcome of the negotiation.² Of importance to note is that the mediator has no authoritative decision making power. Rather, his or her objective is to act as a facilitator who, in controlling the negotiation, assists the parties to communicate and reach their own mutually acceptable agreement. That is, “the role of the mediator is to create and maintain an atmosphere that allows the parties to speak freely while addressing their views.”³

In spite of these core values and assumptions of equality underlying the mediation process, various studies have noted a substantial difference in the ways in which men and women mediate and the way in which they understand and address conflict. The research of D. Kolb and G. Coolidge set out in “Her Place at the Table”⁴ holds that women are perceived to be “other-orientated” and cooperative in their negotiation while men are to be autonomous and competitive. On this assumption, scholars such as Janet Rifkin have suggested that mediation, with its emphasis on cooperation and compromise, should in theory work better for women as a process of dispute resolution because it reflects a more “feminine” view of interaction with emphasis placed on “female concerns of responsibility and justice.”⁵ On the contrary, however, several researchers have noted that in practice women do not fare well in formal mediation in that their voice and experiences often times go unheard. 

Although the investigation into the circumstances surrounding this apparent imbalance between the genders has yielded numerous theories on the influence of socio-historical and cultural factors on how women mediate, the role of language in shaping woman and influencing her in the mediation process has been under examined. Linguists such as Deborah Tannen,⁶ Robin Lakoff,⁷ and Mary E. Crawford⁸ have examined the connections between gender and language and have argued in their research that language shapes our understanding of conflict in complex and inconspicuous ways, and molds our way of thinking about people, actions and the world around us. Language - as the medium through which the ideas and arguments of the disputants are structured and presented - influences how one thinks, and how one perceives and is perceived by others. In this way, what becomes of interest and importance in examining the observations made by researchers on how women negotiate in the mediation process is how the use of language inherent to the discursive process of mediation impacts upon the processes and outcomes of mediation itself. Specifically, this paper will address what conditions the use of particular speech and practice impose on women in understanding themselves within the context of mediation, and what effect, if any, such discursive practices have on gender relations and power dynamics.

Poststructuralist thought, with its recognition of the power of language to shape the world, is important to mediation in that it provides the framework in which to investigate the construction of discursive categories centered around power, gender constructions and their in - and exclusive effects in relation to identity projects. Expanding upon the poststructuralist theories of Michel Foucault who examines the concept of “discourse” and its power to define our identities and to shape the way we view, define and approach conflict, I propose to examine how gender ideologies and power dynamics are set up in the discursive process of mediation. In so doing, I set out to apply to mediation the connection poststructuralist theory has drawn between gender relations and power in language use in order to debunk the notion that women mediate in a way that is innate to them as women (namely in a relational and seemingly passive manner).⁹ I hope to provide new insight on the observations and conclusions that have been drawn in previous studies on how the process of mediation constructs and maintains gender inequities. 

By way of introduction, this paper will set out some of the main theoretical poststructuralist tenets on discourse and power articulated in Foucault’s philosophy, and explore the implications of these ideas for the practice of mediation. Particular emphasis will be placed on the interactional relationship between language as discourse and power in the constitution and maintenance of gendered identities.

Foundations: Poststructuralist Thought and Foucauldian Perspectives

In order to properly examine and effectively evaluate the conclusions drawn from the studies conducted on how women mediate and how they are typically perceived at the negotiation table from a poststructuralist perspective, it is essential to provide a general overview of poststructuralist theory. 

Poststructuralism rejects ideas of fixed meaning, unified subjectivity and centered theories of power associated with the Enlightenment period. Although these Enlightenment values arguably underlie much of Western dispute resolution research and theory, Dale Bagshaw, Associate Professor and Director of the Conflict Management Group at the University of South Australia, suggests that this mode of thought tends to “ignore the complexity of our lives and promote simplistic ways of viewing conflict and related concepts such as ‘power’, ‘neutrality’ and ‘identity’”.¹⁰ Throughout his various works, poststructuralist Michel Foucault offers a more complex understanding of conflict that embraces diversity and the co-existence of multiple ‘truths’ and identities. 

Stressing the internal relationship between knowledge, power and language, he maintains that power relations are expressed and maintained in the language of institutionally located discourses that have the power to construct, control, and define subjectivity, reality and meaning. It is in the shaping of subjectivity that power is most importantly operant. Contrary to traditional approaches to power in mediation theories which conceive of power as an individual’s or group’s domination over others, Foucault analyzes power as “as something which circulates, or rather as something that functions only in the form of a chain. Power is employed and exercised through a net-like organization … Individuals are the vehicles of power, not its points of application.”¹¹ Power is merely the use of language and engagement in discursive practices in particular ways by individuals. The knowledge or “truth” power produces and disseminates is relative to discourse in that what is true or counted as knowledge is determined by the type of discourse the institutionally instated regime of truth accepts and makes function as true. This is done in accordance with the belief-determining expert judgments and mechanisms which enable one to distinguish true and false statements, and in conformity to the rules and procedures tolerated by a truth regime’s criteria for what is acceptable.¹² Fundamental to this connection between the production of knowledge and power relations (what Foucault describes as “power/knowledge”) is its operation in language through the exclusion, marginalization and even prohibition of competing truths. Along these lines, Foucault contends that the analysis of dominant discourses will indicate whose voices are heard and whose voices are silenced, whose knowledge is privileged and whose knowledge is marginalized. Truth claims, in this way, are not a reflection of reality as much as they are a production of social and cultural effects of power. 

The assertion that discourses produce meaning and subjectivity rather than reflecting them, makes language and subjectivity ongoing sites of struggle. This struggle involves both the defining and contesting of difference which have different degrees of power to shape the material world (including bodies) and consequent social relations formed from this process.¹³ As we learn how to think and behave through discursive practices, subjectivity is embodied, and discursive practices shape our bodies and minds, in socially gendered ways. Thus, discourses define what it means to be a woman or a man and the available range of gender appropriate and transgressive behavior.¹⁴ As Foucault puts it, “it is already one of the prime effects of power that certain bodies, certain gestures, certain discourses, certain desires, come to be identified and constituted as individuals.”¹⁵ In this light, Foucault’s poststructuralist philosophy provides an interesting foreground for investigating the role of language in how women mediate in that it suggests that the gendered identity of a female disputant is not reflective of a truth or reality of the nature of women but rather is discursively produced and maintained in the mediation process and is an effect of power.

Underlying Assumptions and Main Thesis

My examination of mediation through a poststructuralist lens is structured upon two interdependent assumptions; namely that 1) mediation is an institutional form of communication, and that 2) gender as an identity and as a cultural pattern is reflexively reproduced in communication. From this perspective, mediation as a form of discourse, not only informs one’s approach to dispute resolution, but also effectively shapes and influences the gendered identity of the disputants. Both of these assumptions will be examined in further detail in “Part Two” and “Part Three” of this essay to be published in subsequent issues.

*Iris is an associate in the Litigation Group at Lawrence, Lawrence, Stevenson LLP. Her practice covers a broad range of complex matters, including corporate/commercial cases, landlord and tenant disputes, collections, and estate litigation. She can be reached at ipichini@lawrences.com

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¹ Julie Macfarlane, Dispute Resolution: Readings and Case Studies, 2nd ed. (Toronto: Emond Montgomery Publications Limited, 2003) at 281.
² Robert M. Nelson, Nelson on ADR (Scarborough: Thomson Canada Limited, 2003) at 56-7.
³ Michael L. Smith, Ottawa Carleton Dispute Resolution Centre, quote in Nelson, “Arbitration and Mediation of Business Disputes” (1987), Gowling and Henderson Centennial Series 1 at 16-17.
⁴ D. Kolb and G.G. Coolidge, “Her Place at the Table: A Consideration of Gender Issues in Negotiation” in J.W. Breslin and J.Z. Rubin eds., Negotiation Theory and Practice (Cambridge, MA: PON Books, 1991) at 261-77.
⁵ Janet Rifkin, “Mediation from a Feminist Perspective: Promise and Problems,” in Carol Jean Pint ed., Law & Inequality: A Journal of Theory & Practice vol. 2 (Minnesota: University of Minnesota, 1984) at 22
⁶ D. Tannen, The Argument Culture (New York: Random House, 1998)
⁷ Robin Tolmach Lakoff, Language and Woman’s Place: Text and Commentaries, ed. by Mary Bucholtz (New York: Oxford University Press, 2004).
⁸ Mary E. Crawford, Talking Difference: On Gender and Language (California: Sage Publications, 1995).
⁹ Kolb, supra note 4.
¹⁰ Dale Bagshaw, “Language, Power and Mediation”, online: at 2.
¹¹ Michel Foucault, Power/Knowledge: Selected Interviews and Other Writings 1972-1977 (London: Harvester Press, 1980) at 98.
¹² C. G. Prado, Starting with Foucault: An Introduction to Genealogy (Boulder: Westview Press, 1995) at 124.
¹³ Chris Weedon, Feminism, Theory and the Politics of Difference (Oxford: Blackwell Publishers, 1999) at 102-3.
¹⁴ Ibid at 104.
¹⁵ Foucault, supra note 11 at 98.
 

Barbara Franklin*

Two situations recently arose requiring family members to seek legal counsel. Their experiences made me appreciate just how many opportunities we have to work with and for our clients.

In the first situation, the lawyer was a problem identifier. She saw every difference of opinion as an opportunity to negotiate. In doing so, she ignored and alienated her client. In the other matter, the lawyer was a problem solver. She worked collaboratively with her client and the other party’s counsel to complete the transaction in a timely and positive manner.

According to Dr. Julie Macfarlane in The New Lawyer: How Settlement is Transforming the Practice of Law, the new lawyer’s relationship with her client is one that involves the client in problem solving in a participatory model that is client-centred instead of the traditional “trust me” detachment of the old lawyer.

The positive experience of the family member whose lawyer worked with her and the other side left no doubt that collaboration can lead to tremendous client satisfaction and a great respect for the legal profession.

The spirit of collaboration is permeating the ADR Section. A joint committee of members of the ADR Section and ADR Institute of Ontario has been established to discuss common areas of interest and programming. Working together, we hope to provide interesting and informative sessions to benefit those who work in the dispute resolution field.

The ADR section is encouraged to learn that the estates bar is now taking the first steps in following the family law bar into collaborative practice. Clients will welcome that choice.

In response to the upcoming change in the Rules of Civil Procedure and the Practice Direction in Toronto, the ADR Section is collaborating with the Civil Litigation Section to develop a program of interest to members of both sections.

We invite all members of the ADR Section to the 8th Annual Meet ‘n’ Greet with members of the ADR Institute of Ontario on Tuesday, December 8th. This year’s topic is “Using Your Passions to Inform Your Practice or Find your Niche”. This fascinating session will explore the ways in which our passions outside of the dispute resolution area inform the way we help others resolve disputes and even reveal niche markets for our dispute resolution work.

*Barbara Franklin, Taylor and Franklin Mediators Inc., ADR Section Chair