Supporting Families Through Change: Unbundled Legal Services Project Part 1

Mediate BC is continuing to work to improve access to justice for BC families.  With the inspiration of the Law Society of BC and the generous funding from The Law Foundation of BC, Mediate BC is leading a project to encourage more BC family lawyers to offer affordable unbundled legal services to families experiencing separation and divorce.[1]  In addition, Access to Justice BC has identified “unbundling” for families as one of its first initiatives.  This project and the A2JBC initiative are running side by side.

While the focus of this project is on using unbundled services to support families using mediation to resolve their issues, the project seeks to learn more about attitudes toward, and experience with, unbundled services of all kinds.

The project sought input from BC family lawyers, family mediators and the public through online surveys.   This is the first of a series of posts commenting on the survey responses.

Different terms are used to describe “unbundled legal services” including “limited scope representation” and “limited scope retainer”.  We need a better descriptive term which has meaning for both the legal community and the public.  For the purpose of the surveys we used “unbundling” to describe a lawyer providing legal services for a part, rather than the whole, of the client’s legal matter.  The retainer may be for one or more discrete tasks or for one or more specific issues.

Let’s start with the responses from family lawyers.  They often play multiple roles for clients, so we asked them to focus their responses on their lawyer role.


45 lawyers responded in total but not all respondents answered all questions.  77% of the respondents were women and 23% were men.  Ages ranged from 31 – 70 with an average age of approximately 48.  76% reported living in a city, 12% in a small city and another 12% in a town.

Types and Frequency of Unbundled Legal Services

76% of lawyers said they provided unbundled legal services.  This is important because it shows that unbundled legal services are not new – lawyers have long provided legal services on this basis in a variety of practice contexts.  Consider providing independent legal advice on a separation agreement or a mortgage, providing a second opinion on a difficult legal issue, providing an initial consultation on a potential claim (including a CBABC Lawyer Referral matter), advising in the role of duty counsel.  Some respondents noted that they didn’t think of these roles as being “unbundling”.  We suspect that lawyers usually offer unbundled services on an ad hoc basis and do not consider them to be a formal part of the lawyer’s practice.  Perhaps we are now seeing a major shift in the system.  With the increasing number of family members who need legal assistance and who cannot afford to hire a lawyer on a full-representation basis the demand has increased to the extent that unbundled legal services could form a solid part of the lawyer’s practice.  (More on the topic of financial arrangements and workable business models in future posts).

The lawyer survey results showed that the number of families they served on this basis was typically low (an average of 3.75 clients per month) and only a quarter of the lawyers who provided these services said that they advertised their unbundled services through their website or otherwise.  So, even if they did offer unbundled services, the public would have a hard time finding them.  This conclusion is supported by the results of the family survey which confirmed that people had a very difficult time finding a lawyer to provide unbundled services (more on this topic later in this series). It seems that unbundling has been around for a long time but it has been provided informally and “under the radar”.

The lawyers described providing a wide variety of unbundled services for families including providing:

  • Preparation of documents and forms for the court
  • Advice for self-represented litigants in court (procedural and substantive)
  • Coaching
  • Independent legal advice on agreements
  • One-time representation in court or at a discovery
  • Other services to support clients using mediation

We probed more deeply into unbundled services to support families using mediation.  100% of respondents (n=19) confirmed that they provide a wide variety of these services:


Some respondents advised that they are willing to provide any unbundled service:  “I can’t say I focus on any one area.  It’s ultimately up to the client how they use my services.”  However, most expressed a preference for a more restricted scope of practice:

  • Initial consultation/advice including conflict resolution options
  • Independent legal advice on an agreement
  • Editing and redrafting of documents/materials for Court
  • Coaching on settlement negotiations

Some representative comments:

“Editing and redrafting of materials, as this is the most effective way to help a client.  If they are before the Court with relevant, organized materials, they will be better equipped to meet the needs of the judge in understanding the case.”

“Initial advice and ILA.  Initial advice is crucial to how folks approach conflict resolution.  Section 8 (of the FLA) may be mandatory.  However, the view of counsel will impact on advice given.”

“I prefer unbundled services that will help individuals avoid court.  For example, offers of settlement on a specific issue, preparation of financial and document disclosure, preparation for mediation or taking steps to force the other party into mediation.”

Many lawyers said that they preferred to avoid services relating to litigation, particularly representation at trial.  The important take-away is that lawyers can restrict the type of unbundling services that they provide.  They can design a practice that focuses on the type of services that they find both enjoyable and lucrative.

A key principle of effective unbundling is that the lawyer must make a careful judgment call at the outset of a relationship whether to take on this particular client or the kinds of services requested.  Lawyers identified some of the “red flags” they look for, including:

  • Clients who did not have the capacity or ability to self-represent
  • Clients who had retained many other lawyers
  • Clients who were overly confident or fixed on a position not supported by law
  • Clients who did not listen
  • Clients with various personality traits described by the respondents as “high maintenance”, angry, manipulative or tending to “pick fights”.

In part 2 of this blog series we will describe the lawyers’ use of various financial arrangements to support unbundling and explore their perceptions of the benefits and concerns about unbundling.

Information about the BC Family Unbundled Legal Services Project can be found here.  Summaries of the responses to all three surveys are posted on that page.

Mediate BC is enormously grateful to the lawyers, mediators and members of the public who participated in these surveys – thank you!  The information was really helpful.  Stay tuned for more information from the BC Family Unbundled Legal Services Project.

[1] The project’s scope does not include child welfare or child protection matters.

How is Conflict Managed in Cuba?

Presentation at the Higher Institute of Applied Sciences and Technology (InSTEC)
University of Havana, Cuba

During a recent trip to Cuba in February 2016, I was fortunate to have an opportunity to discuss alternate dispute resolution across cultures. I was invited by Dr. Maritza Lau Gonzalez, a director at the University, to lead a discussion on the topic of managing conflict in Cuba. Faculty at the university shared what types of conflicts they have and how people respond to them. Professor Ramiro Zayas Frutos acted as interpreter. Approximately 15 people participated in the session.Alternative dispute resolution students in Havana, Cuba

During the discussion people touched on general themes that included institutional conflict avoidance, interpersonal disputes, and different expectations for the learning environment.

More specifically, they shared the following observations:

  • People in authority often did not address and manage conflictual issues, leaving on-going issues unresolved.
  • Some students did not respect the professor’s role and teachings.
  • Co-workers did not always work collaboratively.
  • People tended to avoid conflict
  • There are power struggles between departments and colleagues.

It became apparent that subtle norms affect the way conflict is handled in a culture where the collaborative ethos of socialism shapes perceptions of conflict. For example, one of the participants talked about how she approached her supervisor for assistance and he said he would look into it. After repeated requests, with no action being taken, she just gave up. The issue was never resolved. She felt frustrated and hopeless. Even though the prevailing cultural norm is the leveling of social hierarchies, this woman suggested that it is difficult to be assertive with a person in power in her culture. Participants talked about unacknowledged hierarchies complicating the management of conflict.Donna Soules and  Dr. Maritza Lau Gonzalez presenting dispute resolution skills

People were enthusiastic about learning more skills such as listening and assertiveness. I recommended that skill development coupled with a shift in collaborative thinking would prepare them for a more successful exchange. People want to learn how to approach another person they are having difficulty with and learn how to help people be patient and listen when they have a disagreement. They hoped to set up a follow-up session with me while I was in Cuba but it was justnot possible to organize an all-day event on such short notice.

We discussed the type of conflict management training offered at some Canadian schools and I also shared examples from my mediation practice involving university environments. They mentioned the learning they acquired from a workshop Cheryl Picard presented during a recent trip to Havana (a Canadian author of books on mediation and conflict).

The complexity of Cuban society infiltrates institutions and complicates the management of conflict. Denial and defensiveness clearly shape how power is negotiated in this institution of higher learning.

Most surprising was the similarity of their challenges to issues I have mediated in university settings in Canada, frequently involving interests of respect and trust. Despite coming from diverse cultural backgrounds, our conflicts may be different but our interests are remarkably similar. Cuba’s socialism and culture of collaboration and interdependence have not eliminated personal and professional conflicts resulting from hierarchies embedded in institutional life.

Donna Soules

Donna Soules

Donna Soules is a Civil Roster mediator and educator. She holds a Masters degree in Conflict Resolution in Mediation and teaches at the Justice Institute of BC and Vancouver Island University. Donna maintains an active mediation practice based in Ladysmith, BC.

Thank You Volunteers!

BC is really blessed with a generous and engaged dispute resolution community. One doesn’t have to look far to find DR professionals giving their time and talents to a variety of projects.

By participating in our public awareness events, contributing to this blog, engaging in peer training opportunities, or shaping the direction of professional DR standards in BC, volunteers have contributed thousands of hours to make mediation effective and accessible. Volunteering is an enriching experience for everyone involved.

We look forward to continuing to increase the ways in which we engage with our community and offer more opportunities to become involved. Keep an eye out for volunteers calls in our newsletters. If you have ideas for new ways Mediate BC and Roster Mediators can support your organization or volunteering, please get in touch!

As April is volunteer recognition month, we wanted to end it with a heartfelt thank you to our 2015-2016 volunteers. We appreciate your spirit of generosity and support!

Rahul Aggarwal
Lisa Alexander
Rebecca Alleyne
Pater Altridge
Nigel Argent
Lisa Arora
Grace Baker
Sheila Begg
Kathleen Bellamano
Annina Bernardo
Fazal (Fuzz) Bhimji
Joan Braun
Jereme Brooks
Debbie Cameron
Nancy Cameron
Colleen Cattell
Matt Chritchley
Bev Churchill
Anouk Crawford
Jenifer Crawford
Tim Cullen
Sarah Daitch
Nicholette D’Angelo
Julie Daum
Nick de Domenico
Ina Ergasheva
Jory Faibish
Bob Finlay
Rob Finlay
Gary Fitzpatrick
Katherine Fraser
Carrie Gallant
Nicole Garton
Brian Gibbard
Deborah Giunio-Zorkin
Martin Golder
Leanne Harder
Brandon Hastings
Richard Horne
Darrin Hotte
Jennifer Hubbard
Kyra Hudson
Paul Jacks
Lindsay Jardine
Aurora Johannson
Noriko Kawaguchi
Wendy Lakusta
Bill Larose
Laura Matthews
Shelina Neallani
Alex Ning
Chris Ortner
Preston Parsons
Ella Pearle
Robin Phillips
Wayne Plenert
Emily Pos
Bobbi Poushinsky
Janko Predovic
Donna Rintoul
Amy Robertson
Adam Rollins
Marlene Russo
Jaime Sarophim
Richard Scott
Glenn Sigurdson
Maria Silva
Richard Singer
Ronald J. Smith
Susan Smith
Donna Soules
Colleen Spier
Sharon Sutherland
Paul Taberner
Yannie Tai
Janine Thomas
Tammy Van Hinte
Catherine Watson
Michael Welsh
Lori Williams


We’d also like to thank our Board of Directors and Roster Committee who all serve on a volunteer basis. These time-consuming and intense roles provide invaluable guidance and oversight to Mediate BC. Thank you!

Board of Directors

  • Brian Gibbard
  • Wayne Plenert
  • Jane Morley
  • Bill Keen
  • Gayle Bedard
  • Judge Andrea Brownstone
  • Lori Charvat
  • Paul Taberner
Roster Committee

  • Wayne Plenert
  • Carol W. Hickman
  • Arlene H. Henry
  • Nick de Domenico
  • Angela Stadel
  • Richard N. Stewart


Thank you all so much!


Designated Paralegals May Now Represent Clients in Family Law Mediation

LSBCAt its meeting on December 4, 2015, the Benchers of the Law Society of BC approved amendments to the BC Code of Professional Conduct to permit “designated paralegals” to represent clients at family law mediations.  There are some conditions, including:

  1. The client must provide informed consent and supervising lawyer must provide permission, taking into account the paralegal’s skill, knowledge and training;
  2. The supervising lawyer must be available by telephone or other electronic means during the mediation sessions;
  3. The supervising lawyer must review any settlement agreement arising from a family law mediation and such agreements are provisional until the lawyer has signed off; and
  4. Supervising lawyers are strongly encouraged to ensure that the designated paralegal has at least 14 hours of training in screening for family violence.

Lawyers are professionally and legally responsible for all work delegated to paralegals.  For further information please refer to the Law Society’s new rule (6.1-3.3) and commentaries:

“With the supervising lawyer’s permission, designated paralegals may represent clients at family law mediations (rule 6.1-3.3 and commentary) and guidance is provided to those supervising lawyers, including on recognizing family violence and giving legal advice (Appendix B commentary and Appendix E, Screening for family violence and Designated paralegals giving legal advice).”

Sharing the Land: Connecting with the DR Community at CLE’s DR Conference 2015

By Colleen Spier

I am a lawyer/mediator who has been mediating since the spring of 2011, and am always interested in attending conferences that pertain to alternative dispute resolution as a means to keep current on developments within the practice area. I recently attended the 2015 Dispute Resolution Conference Share the Land, offered through the CLEBC, and found this to be a most creative avenue for networking and exploring developments both locally and internationally in the realm of ADR.

Setting the Stage

I’ll begin by sharing my pleasure in arriving at the conference site, which was the Improv Theater located on Granville Island. Just as I have always felt and appreciated the creative differences between litigation and mediation, I immediately felt the creative difference this conference was going to provide based on its venue; and, I wasn’t disappointed.

old-timey fisticuffsWhen do you get to attend a conference with a lunch break consisting of actors prepared to “playback” through live performance key moments you recall from your mediations? High conflict situations resulting in fisticuffs between counsel? Now imagine that being acted out right before your eyes and watching the actors carry you through the decompression of the conflict through the mediator’s eyes. Learning through playback: Just imagine that!

Hitting the Mark

“New World” - What’s New in Dispute Resolution Around the World Chair: C.D. Saint, Mediate BC Speakers: Daniela Cohen, Host Program Scalabrini Centre, South Africa Sarah Daitch, AccessFacility, Netherlands Meredith Gray, Criminal Court Mediation New York Peace Institute, USA Rishita Nandagiri, Ha Ha Ha Sangha, IndiaWhat I imagine, is a world where people solve problems more, and litigate less, and I have always seen ADR as the mechanism through which that reality may occur. I was most pleased to have attended a morning international panel session entitled, “What’s New Around the World,” wherein, I heard of at least 3 other jurisdictions that are using various ADR processes to resolve conflict, including in situations involving refugees, which is now of imminent importance to our country.

“Noob Cannon” - Diversity on Mediator Rosters Chair: Julie Daum, Mediator, Fraser Lake Speakers: Jenifer Crawford, Crawford Law Office, Kamloops Ann Lee, Mediator Roster Manager, Mediate BC Kamaljit Lehal, Lehal & Company, Delta Yuki Matsuno, Mediator, Vancouver Adrienne S. Smith, Pivot Legal Society, Vancouver Kathy Taberner, Institute of Curiosity, Vernon Paul Taberner, Mediator, VernonI also attended a session on diversity, which opened the discussion of what is diversity and does there need to be more of it on the roster? It was wonderful to have so many minds share their perspective on this issue, and I can say I was surprised to learn that some see diversity as the creation of a bias or power-imbalance. The thought shared was that mediators, regardless of their background, sex, or culture, should all be bringing neutrality, as much as possible, to the table, so identifying a unique characteristic in a mediator that may align better for one party over another is not bringing neutrality. Thus, “Is diversity neutral?” and “What is neutrality?” became themes our discussion group explored. Many others felt that diversity is lacking on the current roster, and that the characteristics of a mediator do help shape their practice and this does not negate the neutrality of their practice, rather it enhances it.

These perspectives resonated with me both as a mediator and as a lawyer. From my perspective as a mediator, I feel having diversity on the roster is important as it provides different skill sets, different perspectives, and different cultural backgrounds, which provides a diverse learning environment in which we all network, collaborate and benefit from. From my perspective as a lawyer, it provides my clients with choice, which is important as we are planning “their” discussion. When choosing a mediator, I ask my clients to consider if they have any preferences for the person they are choosing to facilitate their discussion. Often, they have none, but more often than not, they have particular preferences, which assists with their level of comfort and trust in the mediator and the process. I will often receive comments such as, “I would like an experienced mediator with more than a few years of practice,” or “I would feel more comfortable with a male mediator,” or “I would prefer a mediator who is Aboriginal and would not only respect, but also understand, my request to open with a prayer.”

I tend to align with the thoughts that these preferences do not impact the neutrality of the mediator, as the role of the mediator remains the same: to perform their work towards all of the parties in a neutral and unbiased manner that does not favour any one party over another.

Get What You Want, Get What You Need - The Pros and Cons of Med/Arb Carol Hickman, QC, Quay Law Centre, New WestministerAnother interesting session involved learning about the latest in med-arb, which appears to be fairly infant in its use in British Columbia, but definitely emerging as a strong contender in ADR for those who want finality in process. The presentation included a general description of med-arb and how it differs from either mediation or arbitration independently, how the practice is used in different provinces in Canada, and also the benefits, pitfalls and challenges of such a process.

A question was posed as to how one would practice differently as a mediator in a med-arb process as opposed to their practice in a straight mediation process, and it was identified that you must be much more critical of your steps in the mediation portion, ie. Being mindful of the length of time you spend in caucus with each party to ensure balance so that if you are eventually the arbitrator, you are seen as completely neutral. Also, how do you ensure you are basing a final decision on only information provided at the arbitration and not mixing it with information you heard during mediation and possibly during private caucuses in mediation? I was feeling I would be uncomfortable with the changing of the hats described in this process, but we then heard about one way these concerns were being addressed, which is through a team approach, and that idea appealed greatly to me: I will conduct the mediation and if arbitration is required, you will go to my colleague for the arbitration portion.

Curtain Call

The weather was not on our side the day of the conference, it was mostly overcast, and did start to rain during the latter part of the day; however, this encouraged coffee drinking and networking and provided for opportunities for me to connect with colleagues working in various regions of BC, as well as fellow mediators from Victoria for whom I get little chance to speak with despite our close proximity. This conference highlighted for me the importance of remaining connected with the ADR community at large and reminded me that although it may feel as though we work in isolation, we do ‘share the land,’ and must remember to share our thoughts, questions, knowledge and wisdom, with each other, across that land.

Colleen Spier

Colleen Spier

Colleen Spier is a child protection mediator and family lawyer based in Victoria. A Métis woman, she is the Vancouver Island Representative of the Canadian Bar Association’s Aboriginal Lawyer’s Forum and the President of the Board of the Directors for Island Metis Family and Community Services, and an active board member of Metis Community Services in Surrey.



Goodbye Wilson: How I spent November 10 at the CLE Share the Land Conference

By Jereme Brooks (aka Your Favourite Uncle Jer, esq[1])

Good Afternoon Kidlets,

It is I, your favourite Uncle Jer and I’m happy to connect with you today. Our topic of discussion is the recently held Share the Land Conference hosted by CLEBC, and chaired by Sharon Sutherland and Jenifer Crawford.


Now before I go any further, I’m going to confess a little something to you. I hate going to these types of things for a number of reasons:

  1. I could be working and making money instead of not working and paying money,
  2. I could be out looking for more work because eating is important to me,
  3. I could be catching up on paperwork because paper is important to some people,
  4. I could be sleeping, or otherwise lounging and finding the perfect waste of time, or finally
  5. Having some quality me time with my old pal Johnny Walker and his brothers Blackie and Red.

Regardless, when Sharon Sutherland calls – I answer my phone; when she says “Hey would you like to be in a video on diversity in the mediation community?” I say okay sure; when she says “Do you want to come to the conference it’s going to be shown at?” I pray that I’m booked that day, but eventually and inevitably say “Well absolutely, sure, of course…” and I do so with the biggest smile on my face. I then wonder what kind of hold she has over me, and resolve myself to reconcile that need for my former instructor’s approval in therapy at my earliest convenience.

And then the day arrived. I woke at 5 to begin my journey to Granville Island from Langley. Life on 4 hours sleep is a cruel existence so I quickly found the coffee on my arrival. I was practically on time so I made my way into the theater. The seat next to Darrin Hotte was empty so I took it. I smiled because he’s been a friend of my wife’s for 20 years and he’s actually a genuinely nice guy. I say hi, sit down and notice that he smells of good will and optimism – this was going to be a long day.

Informed Consent

“New World” - What’s New in Dispute Resolution Around the World Chair: C.D. Saint, Mediate BC Speakers: Daniela Cohen, Host Program Scalabrini Centre, South Africa Sarah Daitch, AccessFacility, Netherlands Meredith Gray, Criminal Court Mediation New York Peace Institute, USA Rishita Nandagiri, Ha Ha Ha Sangha, India

The first session I attended was in the theater. Once the logistical challenges subsided, the “New World” session discussed mediation activities happening around the globe. From mediation being used in a community development setting between corporations/governments and communities around the world– to mediation being used in a restorative justice context within the criminal justice system in New York, we were able to hear firsthand about how mediation was being used to open dialogue and make life better for people. It was pretty cool and I think Tony Prkacin would have been proud to hear the woman from New York say “anything can be mediated with informed consent”. It was nice to have that sentiment echoed from a different part of the world. Collaborative practice for everyone. Awesome.

It was at that point that I realized that my blood caffeine level was low. It was time for either more coffee, or whatever it was Lance Armstrong used to win those races. And since there was nowhere to lay down, or a reputable dealer in sight, I opted for more coffee.

The spread was really quite remarkable, although the stir sticks left something to be desired. The pastries and fruit were all very well prepared and so I got a refill of a very nice medium roast and headed for the next session Noob Cannon – which was the diversity panel.

Diversity and Identity

“Noob Cannon” - Diversity on Mediator Rosters Chair: Julie Daum, Mediator, Fraser Lake Speakers: Jenifer Crawford, Crawford Law Office, Kamloops Ann Lee, Mediator Roster Manager, Mediate BC Kamaljit Lehal, Lehal & Company, Delta Yuki Matsuno, Mediator, Vancouver Adrienne S. Smith, Pivot Legal Society, Vancouver Kathy Taberner, Institute of Curiosity, Vernon Paul Taberner, Mediator, Vernon

Noob Cannon, a workshop where you really had to kind of look around to see the Token Middle-Aged White Guy. Seriously, this was where the diverse crowd (the cool kids, if you will) went to learn and I was going to be at that table. Plus I was in the video, and I wanted to make sure they got my good side (they did not, or more reasonably I don’t have a good side). In any case, I showed up ready to experience a good old fashioned chat on the need for more diversity; which incidentally you would not have guessed based on the lack of Caucasian men in the room. Seriously, I felt like I walked into a Benneton Ad. The Liberal Government’s Cabinet is only slightly less diverse than the population of this room. Oh well, let’s preach to the choir. And then it begins…

I’m told that we’ll be doing a visual depiction of ourselves at which point I immediately began to freak out. Will we need to share this stuff? Do people need to see me? Can’t I just be a wallflower? All these and more questions flood my brain and then it’s my turn to introduce myself – awesome.

It’s at that point that I gave voice to my greatest fear, that I am different, lesser, not one of the crowd. My path to mediation was different, I am different, and I am foreign. And then I break a little.

Everyone is very nice and affirming at this point. I mustered up some courage, pulled it together, received the comfort and support so readily offered to me, and began a new stage of participation. The group helped bring me in.

We watched the video, chatted amongst our table and talk about our experiences and the need/benefit of diversity on the rosters. It was a great talk, I wish we’d recorded it. I wish less diverse groups heard it. Regardless, it was good, healing and reaffirming. There are others like me in some ways, and some others who are different but are providing assistance to people and groups in ways that I could not. I’m glad they’re here today. I’m glad I know them now.

Playback on Island Life

Lunch came – great food. Healthier than my body is accustomed to. But I don’t think you can get a stroke from the unwelcome introduction of Kale into a meal. Oh well, it was chewy; I’ll get over it. Pass the salt.

There’s a Vancouver Playback Theatre performance to entertain us. It’s improv, and liking improve, I settled in to enjoy it. And then I realized there are only seats up front – I’m screwed. But Julie Daum sat next to me so I figure it’s ok. They introduced themselves and said they do something like Conflict Theater, I realized at this point there will likely be no selzer gags. I’m happy to know I’ll stay dry, and yet some slapstick would have been a nice change. On with the show.

All was well with it: lot’s of gags, good movement, everyone engaged – and then they turned on us! They asked us to tell a story of a personal conflict. Yeah, okay. Why don’t I just give myself a papercut and you can pour some lemon juice on it? Or maybe you can date my ex? – you know, something equally as pleasant for me. Hey, while you’re at it you should correct my grammar. I love that.

But, good soldier I am, I turned to Julie and 5 seconds later she’s telling a story that had both of us in tears. Great.

And then it hit me. Many of us are carrying stuff and we have limited places to take it. We’re independent, neutral third parties. We don’t really have teams to debrief with, particularly in small practices like mine. It dawned on me that you guys are really the only ones who get what I do, and understand or empathize with the things I encounter.  And at the same time, you’re all my competitors – except CD; I’m not really sure what he is yet.

The end result is that I spend my time in isolation, not really by choice but through circumstance and some necessity. I equate it to being on an island, separate and apart from others but able to be accessed as necessary. It’s not a bad life really; I commute by walking downstairs for the most part. And when I do venture out, I get to help people resolve disputes. It’s pretty cool, I feel very fortunate to be part of this. Other mediators understand what I’m saying, I just don’t meet many others.

As the next session begins I get a phone call. Feedback on a mediation, suggestions that I could have somehow done something different. I see Sharon Sutherland and approach her to vent a little. She listens, validates, challenges, guides and empathizes. 10 minutes later it’s all better.

I’d spoken to Sharon earlier in the day and mentioned my apprehension in making the video. That in doing so I didn’t want to insult anyone or say the wrong thing. I had this realization that when you have the concern against “biting the hand that feeds you” it’s an acknowledgement that there’s a hand and it does feed you – and it can stop feeding you.

That fear is the ocean surrounding the island. That fear has to go because I have to tell you, it was good to be with peers, and it was good to be in a place where we all understood each other. I thought to myself as the conference wrapped up how nice it was to be off the island for a day.

Peace out and rest easy Kidlets, and we’ll see you at the next training thing. I still have some more CPD hours to do before the end of the year.

Until then I remain,

Your favourite Uncle Jer, esq

[1] Not the American lawyer kind of esquire, but the haute gentleman

Jereme Brooks

Jereme Brooks

Jereme Brooks is a Child Protection Mediator and also works with, and designs programs for, high risk youth and families. In addition to his sense of humour, he brings strong connections to the two cultures he is a product of (Okanagan First Nation and Street) to his mediation practice.

Image Credit: Aleksandar Ciric


10 First-Career Dispute Resolution Professionals

We[1] have given the final word in this series to a group of professionals who all entered dispute resolution as a first career.  We’ve provided short bios of each of ten individuals we contacted for this post since their career paths offer interesting insights into opportunities to enter the field early.

In seeking out 10 people who started their careers as dispute resolution professionals, we were optimistic that we could find that many, but didn’t expect to be quite so encouraged by how many more we found! It would have been easy to have grown this list to 20 or even more.  Clearly the disheartening advice that so many new DR professionals continue to hear (“There’s no room in the field”, “No one will take you seriously until you’re older,” etc.) do not reflect the changing landscape of dispute resolution practice.  There are, in fact, a growing number of opportunities for young professionals to enter the dispute resolution field.

Let’s find ways support first career dispute resolution professionals through mentorship, pointing out new niche markets that might be ripe for new ideas and energetic development, and sharing ideas about the many, many ways in which one can make use of conflict resolution training to build a career!  In doing so, we will be building a more robust and sustainable dispute resolution landscape for all of us.[2]

Click the images below to learn more about these 10 First-Career Dispute Resolution Professionals.

[1] Identifying a list of First Career DR Professionals was decidedly a collective effort. Many thanks to C.D. Saint, Robin Phillips, and Kent Highnam for ensuring such broad representation of different career paths. 

[2]Join Sterling Nelson, Carrie Gallant, Laura Matthews and Janko Predovic at “Share the Land”: CLEBC’s Dispute Resolution Conference on November 10th to hear more about their experiences and to discuss barriers and opportunities to developing a first career in dispute resolution.

Our guest curator for this series on First Careers in Dispute Resolution is Sharon Sutherland. Sharon is a Mediate BC Civil Roster Mediator.  She began her dispute resolution practice in 1994 immediately following her call to the bar in Ontario.  She is co-chair of the November 10th CLE Conference on Dispute Resolution Share the Land.

Matt Chritchley

Matt Chritchley

Sarah Daitch

Sarah Daitch

Robert Finlay

Robert Finlay

Carrie Gallant

Carrie Gallant

Kyra Hudson

Kyra Hudson

Laura Matthews

Laura Matthews

Emily Pos

Emily Pos

Janko Predovic

Janko Predovic

Adam Rollins

Adam Rollins

Sharon Sutherland

Sharon Sutherland


Genteel zombies' afternoon croquet…seem like an appropriate topic, given the date. This post is about brains. Specifically, it’s about how brains react to rewards (like a big bag of Halloween candy), and how this response can be mediated (pun intended) by a person’s environment.

When I sat down to write this post, I was ready to talk about how emotions take over the rational brain, and turn people into zombies — rendered incapable of making decisions. As I dug a little deeper, however, I discovered there was little-to-no science to back this up. It seems that current thinking on the subject militates towards the idea that there is no such thing as a purely “rational” decision [i.e. all decisions are based on emotion], and that we haven’t the foggiest how to measure what a rational decision is in the first place. In fact, one study of persons with damaged emotion centres in their brains found that inability to process emotional information did not improve decision-making. Instead, the participants had trouble making decisions at all.

As such, I am going to talk about a much more scientifically-validated field of study which approaches, mutatis mutandis, the same problem. I’m going to talk about a party’s ability to wait to get something they want more, instead of taking something now that they want less.

Delaying Gratification

A long-term orientation in decision-making is generally referred to by psychologists as the ability to “delay gratification.” What is important about the ability to delay gratification for our purposes, and what I will explore further in this post, is the link between environmental variables and parties’ ability to delay gratification (or not). We are, after all, the masters of the mediation environment.

In the early 1970s, psychologists at Stanford University conducted an actual, honest-to-goodness scientific study, dubbed the “Marshmallow Experiment.”  They told young children that they could either choose to eat a treat now (eg. a marshmallow), or wait and get something better (usually an extra treat, so they would get, for example, two marshmallows instead of one).

(As it happens, there is some quite entertaining YouTube footage of this particular experiment)

Subsequent studies found that when the children were distracted from the first treat, they were more likely to be able resist the temptation of eating it and make it to their second, better treat. Thinking “sad thoughts,” and thinking about the rewards themselves made the children less likely to be able to wait, while thinking about “fun things” served as ideal distractors and created an increased ability to delay gratification. It has also been found that the more likely the later reward was, the more likely the party was to hold out for it.

Studies also tell us that the ability to delay gratification improves with age, it isn’t a uniquely human characteristic, and that the ability to delay gratification is an indicator of various life skills and even body mass index.

So What?

As mediators, we have to juggle enormous complexity during the course of a mediation: the power dynamics amongst the parties, the objective and subjective dynamics of the negotiation, the issues, the bargaining power of each party, each party’s position (as it changes), and more. To deal with these dynamic challenges, we also have a huge array of tools to help parties reach an agreement: reality-checking, setting the agenda, checking-in, re-framing, coaching parties, caucusing, and so on.

Settlement, to analogize to the studies above, is almost certainly the first marshmallow. When they hold out and don’t settle, parties tend to think that they can do better if they wait, rather than take what’s in front of them. Not only can it be useful to recognize that some parties are simply better at delaying gratification than others, but also the idea that certain conditions foster or suppress this ability may be useful.

I can’t claim to fully grasp all of the implications between these studies and mediation. I do think that it is interesting that, as discussed above, science tells us a reduction in certainty about a future reward can create impetus to take what’s available in the short-term, and that this is essentially how reality-checking works. It is also interesting to me that simply placing a settlement proposal (marshmallow) in front of a party may make them more likely to settle.

Similarly, we know that a distraction from an immediate reward will help delay gratification. It is interesting to contemplate that one of the effects of controlling the agenda, and helping parties focus on salient issues might simply be a removal of distraction. In the same vein, I imagine that many of us have had the experience where a moment of silence actually created the breakthrough that got parties moving together. It is fascinating to me that one of the mechanisms through which this works might simply be by reducing the level of distraction in the conversation.

The last thing that struck me as I wrote this is the certainty with which I embraced the notion that emotion over-rode rationality. Our social contexts are so powerful, that they continuously affect the reality in which we live. Certainly, parties struggle with this same issue during mediations (vis-à-vis confirmation bias, among others), and it is our job as mediators to help them see things from a different perspective.

Brandon Hastings

Brandon Hastings

Brandon Hastings is a lawyer and Civil Roster mediator.  He is working with the CLE Share the Land Conference Co-Chairs to create both a graphic representations of the interconnections of the BC mediation community and an audio-video study of diversity on BC’s mediator rosters.

Photo credit: Sharon Sutherland.



Categories: Communication, Mediation, Popular Culture

Putting a Friendly Face to Mediation

Mediation doesn’t always get a fair shake when it comes to pop culture. I can think of several instances where an arbitration process was called mediation. Another where a shuttle mediation seemed to be conducted by a rather pathetic facilitator unable to deal with facts, supporting evidence and the conflict narrative of the mediation (please, in no way take away from this that the emotional aspects of how people experience and relate to conflict as being trivial!). Representations in the media are slowly improving, but they’re not there yet.

AL-WNMAs a part of Conflict Resolution Week, Mediate BC put out a request to Roster mediators to submit pictures and behind the scenes videos. We wanted to do this to communicate the many benefits of mediation and to demystify what actually happens in mediation.From this, we’ve created a set of resources based on our surveys and interviews that will have a life beyond Conflict Resolution Week. These resources are also intended as ones that can be shared with potential mediation clients to help them get a bit more understanding of what the mediation process is and can do for them.

Behind the Scenes of Mediation









Our warm thanks to all those Roster mediators who decided to provide their photos and videos! The generosity of the mediation community for #WhyNotMediate has been amazing.

Practice Tips

Dispute resolution professionals may also be interested in taking a look at the practice tip videos that CoRe Conflict Resolution Society has been producing for use in the upcoming CLE Share the Land conference as well. If you can’t attend the conference, think about selecting one practice tip a week and working that into your practice. Soon enough you’ll have incorporated a bevvy of best practices into your mediations!

Check out CoReClinic’s YouTube channel for their Share the Land Best Tips.


Categories: Conflict Resolution Week, MediateBC, Mediation

5 Ways to Bridge the Gap Between Mediation Training and Practice

Mediation (Trial) By Fire

I remember my first mediation like it was yesterday. I was a third-year law student working in my law school’s mediation clinic. After a semester of mediation training and role-playing, I was assigned an employment law mediation. I arrived armed with mediation skills, copies of relevant employment law statutes, and an assortment of delicious protein bars. I was prepared – or so I thought. Within the first five minutes of the mediation, one party aggressively threw a heavy binder across the boardroom table at the other party. I was shocked. An uncomfortable silence filled the air. I did not know what to do. All I could think was: Why did this not happen in any of my role plays? Did I skip a chapter in my mediation skills handbook? Protein bar, anyone? Luckily, my experienced co-mediator jumped in and helped me get the mediation back on track. We separated the parties into breakout rooms and began a successful shuttle mediation. Crisis averted.

I realized at some point before law school that I wanted to pursue my first career in mediation. After completing mediation training, I was faced with a challenge familiar to new mediators: How do I gain experience in mediation without having experience in mediation? Fortunately, I discovered that this challenge can be overcome with creativity, resourcefulness, and determination. Sharon Sutherland, the curator of this blog series on First Careers in ADR, asked me to write about how I bridged the gap between mediation training and practice. 

1. Work at a Mediation Clinic

One of my goals in law school was to gain practical experience in mediation. Besides joining my dispute resolution board and participating in mediation competitions, I worked at my law school’s mediation clinic. Similar to working at a volunteer community clinic, I was able to gain real-world experience in a structured mediation program. My professor guided me through each stage of the mediation process including pre-mediation, co-mediation, and drafting agreements. Since the mediation clinic provided me with mediation referrals, professional liability insurance, and mediation forms, I was able to concentrate primarily on skill development. Moreover, working at the mediation clinic enriched my law school experience. I felt a sense of camaraderie working with other law students who shared my interest in dispute resolution. After completing my work at the mediation clinic, I received a professional reference which was valuable for obtaining mediation jobs and certifications.

2. Observe Mediations

After graduating law school, I initially gained experience by observing mediations. I arranged these opportunities through professional connections or simply by cold-calling mediators. Fortunately, I found that mediators, lawyers, and clients were supportive of my requests to gain entry into their boardrooms. I observed a variety of mediations with a variety of styles of mediators. For example, I was able to compare facilitative and evaluative mediation techniques. During each mediation, I job shadowed the mediator including shuttling back and forth between rooms. I carried a note pad to document effective mediation techniques and to practice tracking terms of the agreement. After each mediation, I conducted a debrief session with the mediator to review and assess what transpired during the mediation. This was my favorite part of the day because I gained valuable insight from the mediator (and found out what he or she really thought). I felt a sense of community while observing mediations since the mediators were generous with their time and went out of their way to provide me with a supportive learning environment. By observing mediations, I obtained a unique perspective and a comprehensive overview of the mediation process. I was also provided with an opportunity to start to consider the style of mediator I wanted to become and the type of mediation process I wanted to utilize in my practice. 

3. Work at a Mediation Organization

I gained experience by working as a Manager at Mediate BC where I co-developed the Family Mediation Program, an innovative program that provides improved provincial access to mediation services for families and mediation training for mediators. As a new mediator, I found that working at a mediation organization was a valuable learning experience. I gained insight into many aspects of the mediation process including pre-mediation orientations, screening for safety and appropriateness of mediation, mediation forms, and drafting agreements. I also acquired a breadth of knowledge about mediation services offered throughout the province – which is helpful information for mediation clients. During the implementation of the Family Mediation Program, I helped provide mediation support to lead mediators and trainees. As a result, I acquired a deeper understanding of mediation while working in a training capacity with other new mediators. An additional benefit to working at a mediation organization was that I acquired business contacts and started to build my reputation in the mediation community.

[Curator’s Note: Many mediation programs require part-time office assistance, and even where the job seems largely administrative, the work can be incredibly useful in developing greater fluency in speaking about mediation to potential clients, understanding the business-side of practice, and making connections. These administrative skills may well make a new mediator more valuable as a co-mediator (as Robert mentions in the next section).]

4. Co-mediate with an Experienced Mediator

Due to the complexities of mediation, I realized that I needed to gain extensive experience under the supervision of an experienced mediator. Therefore, I designed an independent practicum and became a certified mediator by completing many of the required co-mediation hours at an experienced mediator’s business. Considering the drawbacks of co-mediation for experienced mediators (including fee splitting, liability risk, and training responsibilities), I wanted to provide value to the experienced mediator’s business to create a mutually beneficial business relationship. I provided value to the experienced mediator’s business by sourcing mediation referrals, coordinating mediations and managing cases, conducting pre-mediation orientations, updating mediation forms and technology, tracking mediation terms and drafting agreements, and contributing to marketing and social media.

Besides earning mediation fees, I received many benefits through co-mediating with an experienced mediator.

  • First, I was able to gain valuable hands-on experience in a variety of mediations. As mediations can be unpredictable, emotional, and complex, I acquired a breadth of experience that prepared me for future mediations.
  • Second, I was able to practice my mediation skills on real cases under the supervision of an experienced mediator. I found that practicing my mediation skills in a safe training environment (and receiving personalized feedback during debriefing sessions) allowed me to build confidence, manage the emotional climate and power imbalances, and balance numerous moving parts during the mediation process. It also allowed me to gradually expand my role as a mediator and develop my mediation style. As a new mediator, I discovered that taking an active role in mediation demonstrated confidence to lawyers and clients which helped counteract any negative perceptions that they may have of inexperienced mediators.
  • Third, I was able to gain experience in every stage of the mediation process and every aspect of running a mediation business including case management, coordinating mediations, pre-mediation orientations, screening for safety and appropriateness of mediation, collecting fees, drafting agreements, and marketing and social media.
  • Fourth, I was provided with the opportunity to meet potential referral sources – lawyers and clients. During these co-mediations, I learned the importance of networking in building a successful practice. (For more information about co-mediation, please read Mediate BC’s blog series On Co-Mediation.)

5. Join a Mediation Practice Group

By joining a mediation practice group, I was able to acquire valuable insight from professionals with a variety of backgrounds including lawyers, therapists, and financial advisors. Similar to joining a listserv, I gained experience in mediation through group discussion of real cases and analysis of specific mediation issues. Often, I would seek input from the mediation practice group on challenging cases that I experienced as a mediator. Furthermore, I found that joining a mediation practice group was a valuable networking opportunity because it allowed me to develop business relationships with other dispute resolution professionals.

[Editor’s Note: There are a wide range of formal and informal, in-person and online mediation practice groups. You may wish to consider joining the Victoria or Vancouver Mediator Lounges, or set up a local Mediator Lounge for your area. In addition to the professional development opportunities Mediate BC provides, the upcoming ADRIC National Conference, Family Mediation Canada 30th Anniversary Conference or CLE’s Share the Land conference provide opportunities to discuss (and form) practice groups. CoRe Conflict Resolution Society also holds monthly events in-person or via livestream. In short, there’s no shortage of options and opportunities!]


By outlining the ways that I bridged the gap between mediation training and practice, I hope that I have provided some insight for new mediators on how to gain the experience necessary to mediate complex legal disputes and build a successful practice. Since I believe that mediation will continue to grow in popularity, I encourage new mediators to take advantage of these opportunities and continue to find a variety of creative ways to gain experience in mediation.

Rob Finlay

Rob Finlay

Guest blogger Rob Finlay earned his law degree from the Seattle University School of Law before joining Mediate BC where he co-developed the Family Mediation Services and Family Regional Mentoring Program (now revised as the Family Mediation Program). Rob is active as a mediator with Finlay Counselling & Mediation Services in New Westminister.

Photo (gif): Jason Bateman & Julia Louie-Dreyfus, Arrested Development; Justice is Blind via GIPHY

Categories: Dispute resolution training, First Careers in ADR, MediateBC, Mediation