Anne Gottlieb

Anne Gottlieb had the pleasure of making the following introductory remarks when she presented the 2010 OBA ADR Award of Excellence to Justice Robert Beaudoin.

Justice Robert Beaudoin

The Honourable Justice Robert Beaudoin graciously accepted the 2010 OBA ADR Award of Excellence, and in doing gave credit to the many other people who he acknowledged as having contributed greatly to the development and success of mediation in Ontario.

Bernard S. Morrow

Bernie Morrow reports on the joint OBA-ADR and ADRIO program on building successful client relationships which provided practical insight into how to develop and maintain a fulfilling mediation and arbitration practice.

Paul Godin

Paul Godin reviews a book on mediation entitled Difficult Conversations which examines what can cause serious difficulties in conflict resolution communications, and what con be done to overcome these challenges.

Anne Gottlieb

Anne Gottlieb notes that mandatory continuing professional development (CPD) is on the horizon, and reviews how this new requirement may affect mediators.

Iris L. Pichini

The third installment of a three-part, academically-oriented look at the interplay between gender, language, power and their impact upon the mediation process.

Barbara (Franklin) Martyn

In her Chair's Report, Barbara (Franklin) Martyn reviews the activities of the OBA ADR Section over the past 12 months and thanks all of those who have contributed to such a productive year.

Doug Melville and Peter Chauvin

As another program year comes to a close, Doug Melvill and Peter Chauvin thank all their colleagues for their kind and thoughtful contributions to the newsletter.

Editors:
Peter Chauvin
Doug Melville

Anne Gottlieb*

On June 1st, at an award luncheon hosted by the OBA ADR Section and attended by members of the OBA, ADRIO, and members of the judiciary, it was my sincere pleasure to make the introductory remarks for the 2010 OBA ADR Award of Excellence. The introduction was made, not only in my capacity as Chair of the CBA ADR Section, and as the person who nominated Justice Beaudoin for this award, but most importantly, as a beneficiary of the numerous contributions made by Justice Beaudoin to the field of ADR.

As a lawyer and mediator in Ontario, I am a product of his passionate pursuit of mandatory mediation in this province. As an ADR trainer, I am fortunate enough to have traveled to Zimbabwe in 2004 to conduct ADR training under the auspices of CBA International, with His Honour, and have had the chance to see, up close and personal, the way in which he is able to transmit his passion for justice, with compassion, wisdom and humility.

Justice Beaudoin was called to the Bar in Ontario and practised principally in the area of Family Law with the firm of McTague, Clark in Windsor. In 1989, he was appointed the Regional Director of Courts Administration for East Region in Ottawa. He joined the Civil Justice Review in 1994 as its senior project consultant and later, in 1995, became its Project Director. He participated extensively in the productions of the Review’s two reports.

He was a member of the committee that drafted Rule 77, the new case management rule. In 1996, he led the drafting of the Ottawa Mediation Practice Direction which document was the precursor to Rule 24.1. In January of 1997, he was appointed the Case Management Master for the Superior Court of Justice in Ottawa.

After his appointment, he was involved in lecturing and providing advice on the topics of case management and court annexed mediation to interested groups in Canada and abroad. He has taken a lead role in providing training and establishing case management and ADR/mediation including international development projects sponsored by the World Bank, the American Development Bank, CIDA, and the CBA in places including Sri Lanka, Uganda, Ethiopia, Morocco, Jamaica, Trinidad, Tobago, Guyana and Zimbabwe.

In 2007, he was named one of two Family Case Managers involved in a Pilot Project in the Family Branch of the Superior Court of Justice in Ottawa. He was appointed a judge of the Superior Court of Justice in September, 2009.

Justice Beaudoin is a more than a worthy candidate for the OBA ADR Award of Excellence due to the “excellence that he has shown in all the categories and criteria listed on the OBA ADR Award of Excellence Nomination Form:

• he is an excellent speaker and trainer in ADR practices, investing his time and energy in promoting ADR and teaching its concepts in Ontario and around the world;
• he has developed and advocated for ADR systems in Ontario and elsewhere and has lent his expertise to other court systems looking to embark on change;
• he has enhanced the practice of ADR and ensured that mediation best practices are incorporated into the practise of law in Ontario and in many countries in the world;
• he has provided leadership in the OBA and in legislative and court initiatives in relation to ADR in Ontario.

To quote Robin Sully of CBA International:

“The CBA and Justice Beaudoin's colleagues on the International Development Committee are thrilled that Justice Beaudoin is being honoured for his contributions to the development of ADR. The award is well deserved. Not only has Justice Beaudoin been a pioneer in the field in Ontario, but also internationally. He has spent countless days in Canada, and often weeks overseas, working with the CBA and others to share his knowledge and experience. He has informed and inspired. His enthusiasm is contagious!“

No tribute to Justice Beaudoin would be complete without a voice from the Ottawa legal community. David Debenham, Chair, OBA Law Practice Management Section wrote the following to the OBA ADR Executive:

“Justice Beaudoin came to Ottawa and immediately set to work getting our case management/mandatory mediation system in place, turning us from worst to first in court administration. He, along with Justice Chadwick, sold a skeptical local Bar on ADR through the "Jim-Bob" show -- at a time when ADR was looked upon with skepticism, if not outright hostility, by litigators. Justice Beaudoin, not only was the architect, promoter, educator, and de facto lead mediator in Ottawa, he made informal ADR a part of every case conference, motion, or other court appearance to the point that ADR became part of the Ottawa litigator's DNA through osmosis. ADR is now fully integrated in our practice to the point that we rarely need His Honour's assistance any more (and when we do need his help, we know enough to keep quiet and watch him work his magic).“

And with those words echoing, it was my distinct honour to present the OBA ADR Award of Excellence on behalf of the OBA ADR Section, and the entire ADR community, to Justice Robert Beaudoin.

Congratulations!!!!

*Anne Gottlieb is the Chair of the CBA ADR Section

On June 1, 2010, Justice Robert Beaudoin was granted the 2010 OBA ADR Award of Excellence. The following is the acceptance speech that he delivered at the awarding ceremony:

“I wish to thank the Ontario Bar Association and the ADR Section for this award which has a particular meaning for me. I acknowledge that this award is being given to me, in large part, in recognition of my role in implementing the court-annexed mediation back in 1997. I would therefore like to recognize and acknowledge that others played a critical part in that development. First and foremost, I am grateful to Justice Robert Blair who articulated a vision of the modern civil justice system that included court-annexed mediation in the first volume of the Civil Justice Review in 1995. The Honourable James Chadwick, when he was Regional Senior Justice of the East Region, gave me the direction to draft a practice direction for mandatory referral to mediation to complement our implementation of Rule 77. Christine Hart and Victoria Vidal-Ribas, as previous directors of the ADR centre on Grenville Street, gave me valuable advice in drafting that document. The Case Management Masters in Toronto and Windsor were handed the challenge of implementing the subsequent Rule 24.1.

At the outset, those of us who were involved in the early stages of the Practice Direction and Rule all expected that we would soon see the province-wide implementation of the Rule. So, here we are, 13 years later and Rule 24.1 is still limited to those jurisdictions. Some may say that is not a bad thing in that more and more people are participating in mediation without the necessity of a rule, but I must confess to some disappointment because our goal was to include mediation as part of the dispute resolution process and that has not happened yet. In considering that fact, I have begun to question the importance of language in shaping any discussion about court-annexed mediation and its future. I raised that issue in remarks to the OBA council earlier this year.

The importance of language in discussing mediation was driven home to me in one of my first international speaking engagements when I was about to address lawyers from the Law Society of Jamaica. I was scheduled to speak about Mandatory Mediation in Ontario when one of the organizers drew me aside and told me that I could not use the word “Mandatory” – I was told that the word had too many negative connotations in Jamaican culture. It was suggested that use terms like automatic mediation or even compulsory mediation in describing the Ontario procedure.

That experience has since led me to wonder if the term “mandatory” had too many negative connotations in Canadian culture. I have concluded that we may have not been using that term appropriately. In the desire to include mediation as part of the litigation process, there could have been a poor choice of terms. “Mandatory Mediation” was clearly not an accurate description of our process. Our rule did not force parties to mediate - as some would say; the term “Mandatory Mediation” is an oxymoron. Our Rule required parties to become informed about, prepare for and attend at a mediation session, but we couldn’t force them to mediate if they didn’t want to. So from that time, I have tried to use the term “automatic referral” to mediation or to refer to presumptive mediation when speaking about Rule 24.1, which I believe are better terms.

Why should mediation be included as part of the court process? Time constraints do not permit me to begin a full discussion of that issue but I do want to focus on one important reason: namely public-participation. As part of the Civil Justice Review team, I can claim that our Task Force was unique in that it included public participation at every level. A member of the public, Mary McConville, was an equal member of the Task Force. Our public consultations across Ontario informed our discussions and shaped our consensus recommendations. As Mary McConville sharply observed, we the judges, lawyers and court administrators were defining court reform in accordance with our somewhat paternalistic views of what the public needed.

This “disconnect” became clear when we would raise issues of backlog at our public meetings only to be met with complaints about delay. We are concerned with “backlog” which is only a measure of time from the moment when a matter is set down for trial and when the trial is heard. The average litigant measures time from the date when the first event that gave rise to the litigation occurred. We don’t even measure time the same way and we use different terms to describe it.

We heard over and over again that members of the public wanted to be heard and they wanted to be involved in the resolution of their problems. We knew that 90% of all cases are resolved before trial, which meant that for 90% of all litigants their only opportunity to be heard or to become involved was within the confines of their lawyer’s office or at an examination for discovery, and they had to pay for the privilege. There is an enduring belief on the part of the public that once they get into the courtroom they will finally get to tell their story. You can imagine their disappointment when they find out, once they get there, they only get to answer someone else’s questions and if someone else doesn’t like the answers, they will endure the test of cross-examination. As for examination for discovery, when is the last time you heard someone walk out of an examination and say “Gee that was fun. I’d like to do that again!” This concern about public participation leads me to my second point about language and it has to do with the words we use to define success.

Because our civil justice system can only function if a significant number of cases are resolved before trial, we place a high premium on settlements achieved at mediation. We define successful mediation almost exclusively in those terms. We, in Ottawa, glow with pride over our 50% settlement rates at mediation. Critics of automatic referral to mediation will tell you that these cases will settle anyway so why add the extra costly step?

Defining successful mediation solely in terms of settlement overshadows an even more impressive result and that is the 100% result we obtain with regard to public participation in the dispute resolution process. In every mediation, the litigant has an opportunity to tell their story, to participate in the resolution of their dispute and to determine its outcome. So we need to measure and describe success not only in terms of settlement but also in terms of public satisfaction with the mediation process.

Access to justice is a recurrent theme in our profession. In today’s Globe and Mail (June 1, 2010), there is an article that could have easily been written at the time of the launching of Civil Justice Review’s Task Force in 1994. It opens this way: “Individuals on modest incomes see the civil justice system as an unwieldy, inaccessible institution that caters to the rich – and the legal profession is trying to do something about it. A new report revealed on Monday that Ontarians are fast losing faith in their civil justice system....”

We are all concerned with making the civil justice system more timely and cost-effective since cost and delay undermine not only access, but confidence in the administration of justice. In the Civil Justice Review, we continually referred to a third dimension of access, namely the principle of fairness. All of our recommendations had to meet this new test of “fairer, faster and less costly”. This additional element was something that Justice Blair insisted on and his insistence led to some of our more interesting conversations because I couldn’t imagine how one could implement or measure “fairness” in a concrete way. After 13 years, I think I know now, and that is by designing steps like automatic referral to mediation that ensures that the public is provided with meaningful access and that includes it a respected partner in the resolution of disputes.

Bernard S. Morrow*

Coinciding with the presentation of the OBA Award of Excellence in ADR and the Annual General Meeting of the ADR Institute of Ontario, the joint spring half-day program has become an annual tradition within the dispute resolution community. In excess of 100 people attended this year’s program, ranging from pioneers in the field to new practitioners. And this year’s program delivered!

Last year’s successful joint program focussed on developing an ADR practice in an economic downturn and introduced the audience to a number of different practice areas that offered potential for growth. This year’s program aimed to build on that theme by focussing on successful approaches and strategies for developing lasting client relationships.

The morning was divided into two panels. The first panel, which I moderated, examined the “softer” issues relating to successful client development and focussed on the following topics:

• Identifying your client and determining their needs;
• Clarifying/articulating and communicating what your services are, and are not;
• Finding each other – making the client and service provider connection;
• Negotiating and managing expectations;
• The key to creating a lasting relationship.

The panel was composed of three experienced ADR practitioners: Barry Fisher, Genevieve Chornenki and Barbara Landau. The panellists come from diverse professional backgrounds (Barry works primarily as a mediator and arbitrator in the labour and employment field; Genevieve offers a wide range of services to both private and institutional clients, including mediation, adjudication, ombuds services, dispute resolution consulting, and customized training; Barbara works primarily as a mediator, arbitrator and trainer in the family field). Not surprisingly, they therefore have their own unique view of how to effectively develop and retain strong client relationships.

However, despite these differences, they agree that client relationships require regular nurturing. For Barry, who is primarily an evaluative mediator, this means identifying lawyer clients and human resources representatives that value his approach and staying in touch with them. For Genevieve, the best work comes when it is least expected, but once a client relationship has been established the challenge is in delivering service that highlights her knowledge, experience and independence as a professional. For Barb, since the clients are generally the parents in a family break-up, the key is often being available early in the process to answer questions about the dispute resolution process, to calm anxieties by offering an empathetic hand, and to focus the family on the best interests of the kids.

All agreed that active marketing through promotion is less effective in gaining new clients than giving time through volunteer speaking engagements and writing articles on dispute resolution topics.

Interestingly, with regard to charging for their time, while all three suggested that they look to what others charge for similar services in setting their fees, both Genevieve and Barbara acknowledged that fee setting was an issue that they struggled with to some extent and one that they should spend more time thinking about and discussing with their clients.

The second panel focussed primarily on issues relating to documenting the relationship between the service provider and client. Topics included:

• whether or not to have a formal mediation agreement when undertaking a mediation;
• what should be contained in a mediation agreement;
• what should be covered in a med-arb agreement;
• what needs to be covered in the terms of appointment for an arbitration.

The second panel was moderated by Kathryn Munn and was comprised of Blaine Donais, Kathleen Kelly and Barry Leon. All three panellists are experienced practitioners, who offer services as both mediators and arbitrators.

This panel did an excellent job of transforming what could have been a rather dry topic into an engaging and lively discussion. All agreed that when conducting mediation you need some type of mediation agreement that addresses the scope of work, confidentiality and the fees to be charged. However, the panellists differed on the level of detail that should go into the agreement. Blaine typically gauges the level of detail in the agreement by his audience. If his clients are lawyers then he will opt for a more detailed and formal agreement that would include standard provisions regarding confidentiality, scope of work and fees and also include clauses regarding mediator liability and mediator compellability as a witness. Blaine referred to this as the “shadow of the law” test. For example, if the matter to be mediated is an internal workplace conflict, in which a legal proceeding has not been commenced and does not involve counsel, then he might opt for a less formal agreement. Conversely, if he is asked to mediate a civil action involving counsel then he would opt for the more detailed and formal agreement. Kathleen and Barry generally take a more traditional and cautious approach to this issue, preferring to insert more detail in the agreement, including the above provisions as well as information about the roles of the mediator and the parties.

This discussion illustrates that the type of mediation agreement you decide to use is not necessarily straight forward and that perhaps what is included in it should be reflective of the context in which you are mediating and the expectations of the parties. As an added bonus, the panel made reference to and provided mediation agreements and sample clauses – a nice take away for those in attendance.

The second panel also engaged in an interesting discussion about what should be contained in a med–arb agreement. What became apparent is that all three have somewhat different approaches to the med-arb process, which impacts on the type of agreement they would establish with the participants in such a process.

For example, Kathleen indicates that she will often start a med-arb process as a formal arbitration, but that at some point the parties will ask to mediate. Kathleen believes that this approach helps to avoid situations in which the parties are reluctant to open up for fear that they will reveal their evidence before the commencement of the formal hearing. Using this approach, the evidence is first presented formally and then the mediator/arbitrator and the parties can test and fill-in the evidence during the course of mediated discussions. However, at the conclusion, the mediator/arbitrator would advise the parties that she had reached a decision (without revealing what it is) and the parties would be free to choose between accepting the decision and reaching their own agreement.

The morning concluded with an informative keynote address by Ceta Ramkhalawansingh, Manager of Diversity Management for the City of Toronto, followed by the presentation of the OBA Award of Excellence in ADR to the Honourable Justice Robert N. Beaudoin, of the Superior Court of Justice, by Anne Gottlieb, member of the OBA ADR Section and Chair of the CBA ADR Section. Anne’s stirring introduction of Justice Beaudoin and the text of his acceptance speech have also been reproduced in this issue of the newsletter.

*Bernard Morrow, B.A., LL.B., LL.M., is Past Chair of the OBA ADR Section. He is an adjudicator with the Information and Privacy Commissioner/Ontario and a roster mediator with the Ontario Mandatory Mediation Program. He can be reached at (416) 326-1797 and bernard.morrow@ipc.on.ca.

Paul Godin*

The key to doing better in our challenging conversations is to begin with an understanding of what makes them challenging in the first place. Once we understand the cause, it is easier to plan a response that is likely to succeed. Remember, challenging situations are, by nature, well, challenging. As a result, we cannot expect a magic bullet response that will make these conversations ‘easy’. The realistic goal is to make them easier than they would otherwise be, and to make them more productive than they would otherwise be. To achieve that goal, we need to understand the key contributions to our difficulty with such conversations.

In their book, Difficult Conversations (New York NY: Penguin Books, 2000), Douglas Stone and the other authors suggest difficult conversations have their roots in three sources - the “What Happened” conversation, the “Feelings” Conversation, and the “Identity” Conversation. The What Happened conversation creates tension because people disagree on factual issues. Their stories differ, or appear to differ. The Feelings conversation involves tensions caused by strong emotions. Many people are uncomfortable dealing with strong emotions, either their own emotions, those of others, or both. The Identity conversation involves difficulties arising when people have their pride and sense of self challenged (like in a performance review). Most people get upset and/or defensive when their sense of self is challenged, directly or indirectly. When these tensions erupt, conversations are far more challenging for all concerned.

To those categories, my surveys of about a thousand students over the years have identified three other general sources of difficulty in conversations - Past History, Conflicting Goals, and Challenging Communication Processes.

When people have a Negative Past History (personally or organizationally), it creates a negative filter through which any current conversation is seen, and that makes productive conversation much harder. People cannot listen to the other person’s story when they have already written it themselves. A union-management discussion does not take place as an empty slate, in which each person is heard entirely on the merits. In many labour settings, people are wearing glasses with lenses tinted by 20 or more years of perceived antagonism. Everything said and done is seen through those lenses. There is often a sense of prejudgment in the air. Since people don’t feel it is fair to be pre-judged, this often provokes further identity and emotional reactions.

When people perceive the other party to have Conflicting Goals or to be a barrier to achieving their goals, the competitive element of conversations is ratcheted up significantly, and the other side may be seen as the enemy. As human beings we often assume there will be opposition to our goals from the very beginning, and we then treat people as enemies to our goals. For example, you go to a complaints desk expecting them to defend the company line and block your request, so you take an aggressive tone (leading to a defensive identity reaction on their side), or you take an extreme position and lock in, or you withhold information from them which makes you look untrustworthy. When competition is our only focus, we may lose the opportunity for a cooperative response, and receive mirror-image competitive responses instead, making it a fight for both sides.

Finally, if there are Communication Process Challenges, productive conversation can be very hard to achieve even with good intentions. A phone conversation is more challenging for many of us than a face-to-face dialogue simply because we are lacking so many visual signals. Communicating in writing leads to serious interpretation issues. Put a conversation in front of an audience and it is not the same conversation anymore. A rushed conversation is rarely as effective as a planned one. As an example, one friend of mine, who is bright and interesting, is a close-talking person, and I have noticed that even people who have just met her quickly begin avoiding her because her method of communication puts them off. It takes a great deal of patience to stay in the conversation and look past its form.

In reality, all of the six challenges are potentially linked, as each one can generate the others. When a conversation is rushed (Process), it may generate significant frustration (Feelings) and if that pressure appears to be preventing you from reaching your goal (Conflicting Goals), you may become angry (Feelings) or feel like you will lose face (Identity). If an old adversary (Past History) confronts you with a raised voice in a public place (Process) with a disagreement about past events (What Happened), you might become defensive/fearful/angry (Emotions) because your sense of self is being threatened (Identity).

Understanding the cause of the difficulties in conversations helps us deal with them and still have productive meaningful conversations. Once we understand the cause of the difficulty, we can choose the appropriate response.

Several tools are good initial responses to try (a conversational first aid kit as it were), because they are low risk approaches with a high potential to improve the challenging behaviour. These include: a) asking good sincere open-ended questions (and listening sincerely to the response); b) not reacting negatively oneself; and c) taking a break even for a few minutes to calm down and plan your response (do this analysis). Even these low risk tools however, are dependent on how they are communicated. If someone is upset and you brush them off saying “I can’t talk now.” don’t be surprised when they get more upset. Contrast that with saying, in a sincere tone:

“All right, I can see this issue has got you very upset. I do want to see if we can work through this together, and I would really appreciate it if you could give me just five minutes to lay this stuff down, and gather my thoughts because I want to devote proper attention to this with you. I just need to clear my head of this other stuff first if you don’t mind.”

Again, there are no magic bullets, so we must ask:

1. What is the difficulty?
2. Why is it happening?
3. How might I respond effectively, if that is the root cause? And finally;
4. Try the response that is most likely to help the conversation, and least likely to do further harm.

Remembering these simple steps will help make any conversation more productive and less stressful for all involved. Every conversation is different, and what works for one person may not work for another. What works at work may not work at home. If we can avoid leaping to negative assumptions about the other person and their behaviour, our ability to choose responses that might actually work is greatly improved. And if your first attempt to improve a conversation fails, don’t give up, learn from the response to what you tried, and try something else.

*Paul Godin, B.A., B.Sc., LL.B., C.Med, is the Director of U.S. Operations for ADR Chambers and the Stitt Feld Handy Group in Toronto. Mr. Godin has provided negotiation and ADR consultation and training for a broad variety of governments, companies and organizations around the world, and practices as a mediator, ombudsman, ADR systems designer, and facilitator in Toronto and Oregon. He has lectured at the law schools of the University of Toronto, the University of Windsor, and the University of Oregon. Paul can be contacted at paul@adr.ca.

Anne Gottlieb*

As you may be aware, as of January 2011, there will be a Mandatory CPD (Continuing Professional Development) requirement for practising lawyers in Ontario. Ontario lawyers registered in the 100% fee paying category with the Law Society of Upper Canada will be required to participate in 12 hours of CPD per year, three of which must be in the area of ethics and professional responsibility.

Both the CBA and the OBA are working on, or have already implemented, software programs to enable their members to keep track of programs which will qualify for CPD. Therefore, if you register and attend designated CPD programs sponsored by the CBA or OBA, there will be a way for you to track the number of hours you have completed in a calendar year. The Law Society of Upper Canada will be providing separate courses on ethics.

An OBA Working Group, Chaired by Lee Akazaki, was formed to, among other things, negotiate with the Law Society to have hours spent in a leadership capacity at the OBA, or similar such legal organizations, recognized as part of the CPD requirement. I was a member of this Working Group.

As the OBA negotiated with the Law Society and strove to have volunteer hours recognized as part of the CPD, or alternatively, the self study category, I raised the issue of Lawyer/Mediators who have chosen to remove themselves from the 100% Law Society fee paying category. My concern was that those not paying the full fee, and not obligated to fulfill the 12 hour requirement, might face an impediment – if and when they choose to return to the full fee paying category – by virtue of not having kept up their CPD.

Lee Akazaki took this matter to Diana Miles, of the Law Society and her response to him in an e-mail was as follows:

“Members who are mediators can choose to change their status to the 50% fee paying category if they are not providing opinions or advice.

If the mediator were to decide to return to full time practice after a five year period or more, he or she would be subject to the Re-Entry Review provisions (we would go visit and conduct a full practice review).

There are no provisions for ‘catching up’ in the proposal that is before Convocation. However, the Re-Entry Review could require such a term. The member would only be required to ‘catch up’ if my reviewer found the member to be practising deficiently and determined that a lack of recent education was the reason and that the practice and clients were, or could be, suffering because of it – in which case we would do a proposal order that would require the member to do certain or more education to improve competence.

In other words, a 100% mediator would not be subject to the 12 hour requirement, but would have to show a reasonable amount of recent education during the Re-Entry Review process. I think, therefore, that there is an additional hurdle to re-entry to the opinions/advice-providing category of membership (100% fee) in that mediators would be in the same boat as anyone who has been away from the traditional practice of law and seeks to re-enter. I understand the source of your concern however, I think this can be addressed by putting in a recommendation in our submission that mandatory CPD not be a real or perceived additional barrier to re-entry.”

Accordingly, come January 2011, lawyer/mediators in the non 100% Law Society fee paying category, should give some thought to the CPD requirement and consider whether or not it would benefit you, to comply with the requirement, even if you are not obligated to do so.

I thank both Lee Akazaki and Diana Miles for their attention to this matter.

*Anne Gottlieb, Hons. B.A., LL.B., LL.M., is Chair of the CBA ADR Section

Iris L. Pichini*

The third installment of a three-part essay. Parts one and two were published in previous newsletters.

Having examined mediation as an institutional form of communication in Part Two of this essay, Part Three will explore the manner in which gender as an identity and as a cultural pattern is reflexively reproduced in communication.

Language, Power and the Construction of Gender

In conceiving of mediation as an institutional form of communication, and in understanding the power of language as discourse to shape and disseminate conceptions of truth and reality (and the corresponding effects of this on the power dynamics existent between parties within the context of mediation), we now turn to the effects of this use of dialogue in the creation of subjectivity - specifically, gendered identity. What are the implications of these Foucauldian conceptions of language and power to gender in mediation? In examining the observations of studies conducted on how women negotiate, such as those of Deborah Kolb,¹ it is asked whether the results of the study reflect a reality or some innateness of how women understand and approach conflict within mediation. Do women, by virtue of being “women,” naturally have a distinct moral language emphasizing concern for others as distinguished from men who tend to focus on abstract notions of individual rights during mediation discussion, or does language as discourse play a role in the constitution of gendered subjectivity? Following Foucault’s line of thought, gender as an identity and as a cultural pattern is reflexively produced and maintained in mediation as discourse. From this perspective, mediation not only informs a woman’s approach to dispute resolution, but also effectively shapes and influences her as a gendered being.

Foucault saw power/knowledge produced at any point in history as contributing to the production of ‘subjects’ or subjective identity in three main ways. Firstly, through scientific discourses which objectify and label people as ‘normal’ or ‘deviant’. Secondly, through dividing practices or ‘dualisms’ where people are either divided within or from others – mad/sane, sick/healthy, male/female. Thirdly, through self-regulation whereby governmentality is placed within ourselves through our own internalization of the discourse and appropriation of its truths.²

A) Scientific Discourse and Normalization

Language plays a powerful role in how concepts of normalcy are fashioned and subjectivities or identities are positioned. In his analysis of discourse, Foucault examines how access to forms of language and how ways of using language have become adopted as ‘normal’ and dominant through complex historical processes. He highlights that in any given historical period we can only speak or think about a given social practice (Bagshaw provides such examples as ideas of madness, domestic violence, child abuse or sexuality) in certain ways and not others.³ Foucault’s theory can be applied to mediation in that mediation itself can be viewed as a normalizing process which promotes a particular selfhood or subjectivity and embodies the values and approaches to conflict of dominant Western society.

Poststructuralism directs attention towards the power of language to create and maintain a certain sort of reality and questions the results of studies that conclude that women mediate in self-evident and normal ways for them as women. It brings to the forefront the question of how the subjectivity of women has been constructed through a discursive process, and the manner in which mediation and its use of language sets up and sustains categories of gender that effectively label and position disputants within a certain groups. Moreover, it brings to light how the forms of subjectivity produced within the discourse of mediation effects as a form of power which has become so naturalized that we no longer recognize it as such. Conceptions of femininity and masculinity have become so deeply imbued in our understanding of truth and reality that we scarcely recognize them as the social constructions that they indeed are. It must be noted that this idea of gender construction through discourse also exposes the forceful marginalization of “deviant” behaviour⁴ by discursive rationality. Such judgments of normalcy are culturally instated although they are adopted and substantiated by mediators (held up as “experts” in the mediation process) who have the power to define, categorize and label.⁵

As Deborah Kolb notes, in mediation, like any other interactive situation, certain impressions and expectations about the parties involved in the negotiation process impact the manner in which interactions are set up and take place. When women come to the table to negotiate, certain conceptions or stereotypes are evoked about what constitutes “appropriate behavior.”⁶ This, in turn, serves to make gender a factor in mediation. Stereotypes, such as those found in Kolb’s research, which expect women to act passive, compliant, non-aggressive, noncompetitive, accommodating and attend to the socio-emotional needs of those present⁷ do not necessarily reflect a truth or reality of women, but instead reflect this underlying expectation of normalcy. Kolb notes in her research that when women act in ways that contradict these expectations of passivity and accommodation, her behavior is criticized and labeled “deviant,”⁸ although such acts of aggression are accepted and indeed expected of men in the mediation process. That is, people (mediators and disputants alike) tend to react positively to the use of language and behavior which are congruent with expectations (what is considered “normal”) and discourage or ignore those actions and forms of talk which are incongruent (deviant acts).

In becoming aware of this dominant mode of selfhood and orientation to conflict through discursive projects, mediators and disputing parties may come to an understanding of how gendered subjectivity (along with behavior and negotiating styles) in mediation is in fact a product of culture that shapes the mediation as a discursive process. This type of knowledge and learning can be used to develop and improve mediation and other dispute processing methods because it opens the possibility for working with disputants to design or “grow” processes out of their “normal” gendered context.⁹

B) Dualisms

Foucault contends that identities and social categories are constructed through a process of exclusion of the binary other; that is, subjectivities are constituted through dualistic categories of “either/or” that are opposite or contrary in nature. This binary theory sets up the idea that the categorization of “woman” and the ways in which she speaks, thinks, and negotiates, can be understood only in relation to its opposite - the category of “man” and his modes of speaking, thinking, negotiating. As men who have traditionally been in positions of power have essentially set the standard, the functions and discursive possibilities available to woman are put into place as an opposition to all that man is and can do in mediation. Hence, a reason why women may be viewed as unsuccessful in negotiations and mediation is that the discourse of law, within which the discourse of mediation exists, is itself patriarchal, and therefore privileges masculine practices and identities over those associated as being female. Moreover, this framework is set up and made to appear be normal or natural.

An important focus of feminist poststrucuralist analysis has been to deconstruct the binary oppositions on which traditional ideas of difference rest. The process of deconstruction reveals how binary oppositions are not expressions of a natural order, but rather discursively produced under specific historical conditions. The meanings of ‘woman’ and ‘female’ are thus cultural and therefore subject to possible change. Moreover the binary oppositions which produce these meanings involve hierarchical relations of power and serve particular interests. Often new and resistant identities are formed in reaction to the ways in which hegemonic groups define other groups and individuals.¹⁰

C) Self-Regulation

This final way in which gendered identity is established and maintained through power/knowledge discourses provides a unique perspective in the constitution of the subjectivity. Whereas Foucault examines how a subject is shaped by discourse - that is in being defined and so coming to think and act in specific ways - the idea of self-regulation, coupled with such processes as the “confessional” and with mediation as Bagshaw suggests, demonstrates how women as subjects of discourse have effectively internalized the discourse of femininity that shape her. In this way, women may be seen to mediate in certain ways that conform to traditional Western socio-cultural conceptions of “woman” because she has herself complied with them. Discourses and their truths are given environments in which an individual finds him or herself. The question of how subjectivity is produced is largely a question of how individuals appropriate the truths of the discourses in which they find themselves.¹¹ In accepting and shaping one’s own self identity through the discourse that has been attributed to them, the truths of gender imposed by the discourse of mediation become constitutive elements of the subjectivity of a female disputant and hence a part of her own reality through a form of disciplining and habit formation.

Conclusion

This paper has explored the implications of Foucault’s philosophy on discourse, power, and gender in the practice of mediation. From a poststructuralist stance, it has been argued that 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. Despite previous studies which have noted substantial differences in the ways in which men and women mediate and the ways in which they understand and address conflict, Foucault’s philosophy maintains that such differences are not a reflection of reality as much as they are a production of social and cultural effects of power which arguably have become manifest in the discursive process of mediation. In recognizing and understanding how the use of language inherent to the discursive process of mediation impacts upon gender relations and power dynamics, mediators, disputants, and legal representatives involved in the mediation process can become mindful of the ways in which language can define identities and shape the way we view, define and approach conflict.

*Iris L. Pichini 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 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; also D. Kolb, Is it Her Voice or Her Place That Makes a Difference? A Consideration of Gender Issues in Negotiation (Kingston: Industrial Relations Centre, Queen’s University, 1992).
² Dale Bagshaw, “Language, Power and Mediation”, online: <http://www.leadr.com.au/BAGSHAW.PDF> at 6.
³ Ibid at 4.
⁴ Judgments of behavior that step out of the categorization of ‘normal functioning’ in which discourse has placed a certain body as being male or female.
⁵ Supra note 2 at 5.
⁶ 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; also D. Kolb, Is it Her Voice or Her Place That Makes a Difference? A Consideration of Gender Issues in Negotiation (Kingston: Industrial Relations Centre, Queen’s University, 1992) at 9.
⁷ D. Kolb, Is it Her Voice or Her Place That Makes a Difference? A Consideration of Gender Issues in Negotiation (Kingston: Industrial Relations Centre, Queen’s University, 1992) at 10.
⁸ Ibid.
⁹ Morgan Brigg,” Mediation, Power and Cultural Difference,” online: <http://ntru.aiatsis.gov.au/ifamp/research/pdfs/brigg_2003.pdf>
¹⁰ Chris Weedon, Feminism, Theory and the Politics of Difference (Oxford: Blackwell Publishers, 1999) at at 105.
¹¹ C. G. Prado, Starting with Foucault: An Introduction to Genealogy (Boulder: Westview Press, 1995) at 125.

Barbara (Franklin) Martyn*

If June is the end of the term; a New Year’s Eve of sorts, and September is the beginning of a new year, we are at that juncture of looking back and anticipating the future.

The ADR Award of Excellence was presented on June 1st to a tremendously deserving Justice Robert Beaudoin. He has been described not only as the architect, promoter, educator, and de facto lead mediator in Ottawa, but Justice Beaudoin made informal ADR a part of every case conference, motion, or other court appearance to the point that ADR became part of the Ottawa litigator's DNA through osmosis. We congratulate Justice Beaudoin and thank him for his years of contribution to the ADR community and the OBA.

The “New” Rules of Civil Procedure came into effect on January 1st of this year and have had an impact on civil litigators and mediators. In the ADR community, we should feel delighted when counsel, in the context of preparing their discovery plans, are also considering when to schedule mediation. They are collaborating on a litigation plan that includes dispute resolution from the onset. From my perspective, this is a best practice and one that I hope becomes the norm.

Commercial Mediation Act

The ADR Section was superbly represented by Deborah Anschell and Paul Godin in a working group that reviewed and provided submissions to the Attorney General regarding the adoption by Ontario of a Mediation Act to deal with both domestic and international commercial mediations. We are most appreciative to Paul and Deborah for their work on this important initiative.

Looking Ahead

Professor Alan Levy spoke at the June 14th program: Resolving Inter-Generational Conflict. This interactive seminar addressed differences between generations and how to manage, and prevent, conflict between, for example, baby boomers and the newest generation to enter the work force and commence litigation, Generation Y.

Upcoming programs next fall and winter, subject to change with the new executive, will include:

• Difficult Conversations
• Mediating Multi-Party Disputes
• 2011 Institute

Sincere Gratitude

Sincere thanks to all members of the ADR Executive: this superb newsletter, the programming and committee representation are all reflections of the tremendous talent and dedication of committed OBA members. It has been a pleasure working with you.

I’d like to take this opportunity to thank those members of the executive who will not be returning next year for their contributions over the years and in particular, their wise counsel around the executive table.

Finally, I’d like to thank Marina Mussani for her tremendous work this year as Vice Chair of the ADR Section and wish her and the rest of the executive much success in the upcoming year.

*Barbara (Franklin) Martyn is a mediator with Taylor and Martyn Mediators and Is the Chair of the OBA ADR Section.

 Doug Melville* and Peter Chauvin**

ADR is by its very nature a broad and mutidisciplinary field of practice. The range of articles submitted for our section newsletter illustrates both this reality and the level of engagement of our members and those from other sections.

Thanks to all of you for a great year. We hope that the tremendous level of support we have received will continue. In September, another program year will begin and the newsletter will need your contributions once again.

Our thanks to the outgoing ADR Section Executive and our Chair, Barb Franklin, for their support and guidance. To the incoming Section Executive, thank you for stepping up and taking on the challenge on behalf of all of us with an interest in ADR.

Good luck!

Doug Melville and Peter Chauvin, the Editors.

*Doug Melville is the Ombudsman & CEO for Banking Services and Investments (OBSI). He can be contacted at 416-225-4539.

**Peter Chauvin, LL.B., Mediator and Arbitrator, is the principal of Chauvin Dispute Resolution Inc. Peter is also a Vice-Chair of the Ontario Labour Relations Board. Peter can be reached at peterchauvin@sympatico.ca and 416-460-8979.