10 Common (and Discouraging) Pieces of Advice Offered to New Dispute Resolution Practitioners

Graduating from law school with an interest in mediation and alternative dispute resolution seems inevitably to lead to the question: what now? Although law schools offer options to learn alternative dispute resolution theory and some schools still offer hands-on mediation training, it can be hard to find concrete guidance on how to pursue a first career in mediation after being called to the bar.

Proceed with Caution?I have been fortunate enough to be able to speak with various professional mediators and have had some wonderful, supportive conversations. That said, there are certainly some very prevalent beliefs about the feasibility of entering the field of dispute resolution as a new practitioner that are much less encouraging. For this blog, I have been asked by the series curator to write about the negative ‘cautions’ that I have heard about pursuing a career in mediation as a means of framing a discussion about the perceived barriers to entering the field. These ‘cautions’ or ‘myths’ will be responded to in an upcoming blog and, hopefully, will generate discussion at the upcoming CLE conference (Share the Land) where dispute resolution as a first career will be the topic of one of the panels.

Below is a list of some of the disheartening input that most want-to-be mediators have likely heard (at least once).

  1. You cannot go straight into mediation; you have to be a litigator for at least 10 years. [1]
  2. No one will hire you as a mediator until you establish a good reputation, and you won’t be able to establish a good reputation until you have mediated many disputes.
  3. You need a full head of grey hair to be taken seriously as a mediator (i.e. you cannot have a mediation career while you are young).
  4. There is not enough work in mediation to make it a full-time career.
  5. You must have a split practice and cannot be solely a mediator.
  6. Mediation is falling out of fashion and is no longer a growing area.
  7. Rosters are closed or full and there is nowhere to find work as a nascent mediator.
  8. Certain sectors may not take a female mediator seriously.
  9. You cannot be both a mediator and a litigator, the skill set is not compatible; if you work in litigation, you must give up your mediation career.
  10. You will never make enough money pursuing mediation as a career.

Admittedly, there is some overlap in the above list (e.g. #4 and #10), but each entry can stand alone or be woven together; no matter how they are packaged, they represent a discouraging parcel of advice.

Throughout law school, I enjoyed many positive discussions with Sterling J. Nelson about the various ways we may each be able to pursue a career in dispute resolution. Preparing information for this blog, I have spoken with some wonderful individuals who have managed to carve out a career in mediation straight out of law school or following articles. Four of these people Robert Finlay, Carrie Gallant, Laura Matthews, and Janko Predovic, will join Sterling on November 10, 2015, at the CLE Conference on Dispute Resolution: Share the Land. The panel  “I Wanna Drive the Zamboni”: Dispute Resolution as a First Career will offer an opportunity to hear their stories and discuss much needed advice on ways to achieve a thriving dispute resolution career. If you are interested in the topic, please join us there and bring your questions and comments to enliven our discussions.

Robin PhillipsGuest blogger Robin Phillips graduated from Allard Hall Faculty of Law (UBC) in 2014 and articled with Race and Company LLP. Robin took a number of dispute resolution courses at UBC, including the clinical Mediation program, and completed Mediate BC’s Court Mediation Practicum. She continues to have a strong interest in dispute resolution and will be pursuing further opportunities in the field.

Watch for the next post in this series on September 8th when Nancy Cameron, QC examines this list of advice and offers her perspective on its accuracy.

[1] As a recent law school graduate, my focus has been on developing a dispute resolution practice within the legal field, and so the comments I’ve heard tend to reflect the presumption that one is a lawyer first, and then a mediator.  Several of the comments here presume that one is also engaged in a litigation practice before entering into mediation. I would be very interested in hearing from other young practitioners the degree to which these perceived barriers apply to other fields of study.

“I Wanna Drive the Zamboni” OR Is a First Career in Dispute Resolution an Impossible Dream?

It may be that my timing in entering the field of dispute resolution was just exceedingly fortuitous, or Aaron Volpatti watches the wheels on the zamboni go round and round.perhaps I was simply so naïve that I “missed the memo”: but somehow, I decided straight out of law school that I wanted to specialize in dispute resolution and mediation and didn’t run into anyone who seemed to think it was a crazy idea.  In fact, I received a great deal of support from my articling principal, colleagues, and experienced mediators who all seemed to think it was a perfectly logical idea.

By the time I was working with the Court Mediation Program in its early days, and even more so once I was teaching at UBC Law, I started to hear from so many new practitioners that “everyone” says you can’t make DR a first career.  The range of discouraging comments students and young professionals were hearing ran the gamut from “No one will hire you to mediate if you don’t have gray hair and 30 years of legal practice” to “There’s no work for anyone outside of the current 15 (or 20 or 25) full-time mediators”.

My own experience, and that of many young colleagues, tells me that is simply not true.[1] Nonetheless, the perception that it is, continues to discourage new practitioners, and to create barriers based on false assumptions.  These perceptions have the biggest impact when held (and expressed) by senior practitioners who launched their own careers at a time when mediation was often conceived of as a retirement job for senior counsel, or a mid-career change for people seeking a greater chance to be part of problem solving than their first careers provided.  When senior members of a profession assume that something can’t be done, it’s very difficult for new practitioners to hold onto their hope that it can.

If we want to see dispute resolution thrive in this province, we need to identify ways to engage younger practitioners from the start of their careers.This message that DR needs to be a second or third career should be a concern for everyone who hopes to see collaborative decision-making processes continue to expand in BC.  As long as young practitioners are blocked from entering the practice, the field can never become sustainable. New programs will falter as experienced professionals leave en masse as they retire or reduce their practices because younger professionals will not have gained experience alongside these potential mentors[2].  If we want to see dispute resolution thrive in this province, we need to identify ways to engage younger practitioners from the start of their careers.

First Careers in ADR Blog Series

This series will look at both the challenges and the opportunities connected with becoming a dispute resolution practitioner as a first career. It will also include examples of the paths people have taken to achieve that goal. You can expect to see posts that cover:

  • The 10 Most Disheartening “Facts” Shared with New Mediators by Robin Phillips.
  • A Response to the “Facts” by Nancy Cameron, QC.
  • A vlog discussion between young lawyers about the challenges of building a practice while entering the legal profession.
  • The challenges and opportunities of developing a practice in a smaller community by Emily Pos.
  • Thoughts on ways to bridge the gap between training and experience by Rob Finlay.
  • Profiles of 10 BC professionals who made DR a first career.

Join us over the weeks, and share your thoughts via comments, tweets, emails, etc.  This is a discussion that will benefit greatly from the input of practitioners at every stage in their careers!

Sterling J. Nelson will be hosting a panel discussion with four practitioners who made their first careers in dispute resolution at the November 10th CLE Conference on DR – “Share the Land”.

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.

[1] Check out the American website ADR as First Career for examples – and confirmation that this is a concern facing other jurisdictions as well.

[2] Experienced professionals interested in mentoring should read the On Co-Mediation blog series

Photo: Vancouver Canucks “Photo 2 of 15 – Game Day: Canucks vs. Ducks” 15 September 2010 

Categories: Access to justice, Articled Students, Dispute resolution training, First Careers in ADR, Lawyers, Mediation, Mentoring

Summary of Dialogue Sessions: Mediators, the LSBC and the “Unauthorized Practice of Law”

The Law Society of BC issued an Information Form on the Unauthorized Practice of Law at the beginning of 2015. Mediate BC distributed the information form to Roster mediators by email (Jan. 21, 2015) and here on the Mediate BC Blog (Feb. 19, 2015). In June, Mediate BC hosted three dialogue sessions with Mike Kleisinger, Unauthorized Practice Counsel with the Law Society of BC, as special guest.

We would like to thank all those who participated in the dialogue sessions. Mediate BC welcomes further discussion in the LinkedIn Roster Mediators group or in the comments below. If you would prefer to share something privately, we welcome your email.

Below is the summary of the three dialogue sessions held in June 2015.

The “family checklists” shared by various members (and mentioned on page 4) at the dialogue session are available for Roster mediators on the Mediate BC intranet in the general mediation discussion forum.

Summary of Dialogue Sessions June 2015

2015 Mediator Survey Summary

In the Spring of 2015, Mediate BC issued its second annual survey to its Civil and Family Roster mediators to learn more about the use of mediation in British Columbia.

Some highlighted findings:

  • On average, mediators conducted 25 civil mediations, 20 family mediations and 9 workplace mediations in 2014
  • In over 60% of family and workplace mediations, at least one participant was not represented by counsel
  • The largest increase in civil mediation issues were in restorative justice and employment
  • The largest increase in family mediation issues was in division of assets/debts

The top 5 growth areas for mediation as identified by Mediate BC mediators are:

  1. Family Mediation, Court Connected
  2. Wills, Estates, Succession Planning
  3. Workplace, employment, Occupational Health & Safety
  4. Elder Care
  5. Online or Technology Assisted Mediation

For more insight into the business of mediation in British Columbia, read the entire summary here (and the 2014 summary here).

Mediate BC 2015 Mediator Survey Summary

Categories: Access to justice, MediateBC, Mediation

Thoughts on The World Mediation Conference in Berlin 2015

by Martin Golder

Martin Golder

Martin Golder

I had to keep pinching myself to realize where I was. 4 days of presentations from all over the globe on mediation practice. British Columbia was well represented with 5 practicing mediators from BC. I addition to myself there was Arlene H. Henry QC, Joseph Boskovich, Norm Smookler, and Martyn Westerman.  Although the conference was quite intimate with only about 40 participants, 27 countries were represented and with 5 speakers a day. About half of the participants were also speakers.

The World Mediation Organization

The WMO is the brainchild of Dr Daniel Erdmann of Berlin who had the theory that we all have the inclination and in fact some native ability to solve the problems that we encounter around us. He began to gather a group around this idea to develop these abilities into practice. When these groups had come into existence in 4 or 5 countries he merged them together into the WMO. Since then the group has held conferences in several locations in Europe, Asia and Africa. In contrast to the International Mediation Institute in Den Haag which is mostly composed of ex-jurists, the WMO tends more towards the idea that conflict resolution is not in the sole jurisdiction of the legal profession. There was however an impressive list of mediation professionals present.

The World Mediation Conference Presentations

WMO Conference Participants

WMO Conference Participants

Dr. Erdmann had teamed up with the German Mediation Academy to run this event and Patric Illigen and his wife Sylvia orchestrated our days. The presentations typically of about 90 minutes each were then interspersed with networking breaks that were long enough that by the end of the four days I was starting to know everyone a bit and some people very well.

The presentations illustrated a wide and diverse view of what mediation can be in different situations from our familiar interest based model to evaluative and facilitative. Perhaps the most unusual was a Romanian presentation from Nicoleta Munteanu on mediation in classified information scenarios. While I am sure that this is a necessary level of certification in some jurisdictions I felt like I had suddenly dropped into a John LeCarre novel.

Moty Cristal was at Camp David talks with Clinton, Arafat and Barak and presented a fascinating account of how even these international level talks have a huge human component that ultimately can determine how it all turns out. I thought of Helen of Troy.

Maria Theologidou a lawyer from Greece presented a fascinating review of dispute resolution techniques in antiquity and mythology.

Joseph Boskovich & Norm Smookler at the conference.

Joseph Boskovich & Norm Smookler

Sarah Blake spoke about intercultural mediation from her perspective working with Indigenous Australians. Her work has aimed to shift the dominant society view of cross cultural mediation as one that uses the interest based models of the dominant society to jurisdictional convergence mediations that seeks to respect the dispute resolution traditions and methods of both parties equally.

Prof Andrew Goodman a very distinguished lawyer and mediator travels all over the world helping governments and companies set up dispute resolution systems. He talked of our vaunted neutrality as something of an illusion as the mediator will not be able to resist a certain level of judgement about which parties are worthy or undeserving. His presentation method was delightfully and deliberately provocative and generated some good discussion.

And then there was the dynamic Beverley Tarr, a transplanted Brit in Chicago who seems to have single handedly changed the process of divorce in practice and in the legislation in Illinois. She developed a 2 day divorce mediation process that is integrated into legislation.  And yes you read that right, 2 days. She has done over 1400 cases including many high profile and high value cases and the process has been successful in 99% of the cases.

Roland Wilson from George Mason University focuses on East Asian conflicts and Peace issues and is in the process of setting up a George Mason University school of dispute resolution in South Korea. His experience in Asia is extensive in military, government and academic fields. He spoke of the need to ‘people’ international conflict with grass root groups that interact and influence their cultural milieu.

Sandra Thaler an Austrian mediator spoke on the transfer of farms and businesses down through generations. Not only are there the issues of a farm or business being passed to only one descendant and how the other siblings are woven into that process there are also the dramatic differences between the values of generations.

Dr. Inge Vanfraechem from KU Leuven Institute of Criminology in Belgium was project manager of a European project on restorative Justice in intercultural settings. The power of RJ while recognized academically is still in its infancy in actual practice.

Douja Elhajj a Muslim mediator in Australia has taken on the brave (in my mind) and daunting task of bringing traditional Islamic law and Australian law into balance in her community.

Thalia Veintitimilla works in LA with Mexican US immigration conflicts and family reconciliation issues.

Mario Appiano from Turin talked of a familiar subject of getting recognition for mediation as a preferred method of dispute resolution by introducing it at the school level.

Ana Maria Rocha talked about the use of mediation in domestic violence situations. With experience as a lawyer, Member of the Portuguese National Parliament and in international work in compliance with the International Human Rights Standards she brought an unbiased and thoughtful view.

Prof Anna Rosario Dejario Malindog spoke from the Philippines on various mediation practices of indigenous and ethnic peoples of South-East Asia since time immemorial. They certainly have similarities to North American practices and I felt encouraged to look more deeply into these.

Dr. Ilona Németh-Kiss a Hungarian lawyer living in Moscow presented her thesis with WMO which took me back to why we choose to be mediators and the high satisfaction rates that mediation engenders.

I have missed some I am sure but you get the idea of the wide ranging experiences represented.

The BC Mediation Experience

Joseph Boskovich & Arlene H. Henry, QC at the conference

Joseph Boskovich & Arlene H. Henry, QC

There were a couple of speakers who were unable to attend and so one slot was filled with the BC mediation experience. Joseph Boskovich started with a bit of history of mediation in BC followed by Arlene Henry who talked about the present and Mediate BC. I finished with an introduction to Journey to Empathy, the use of focused empathy and compassion as an impasse breaker.

In general the BC experience was viewed in high regard as some jurisdictions were just starting out. Afterwards we were approached with the possibility of presenting some courses so I think there is a market out there for BC experience. I specifically was interested in the response to Journey to Empathy. Several people said they were so glad to hear that empathy can be difficult at times. Andrew Goodman was sure that it was not for him and even went so far as to say that this ‘soft’ approach to mediation might actually put mediation into disrepute. I can certainly see where he is coming from with this as in ‘hard-nosed’ mediations empathy can be viewed as a weakness to be exploited. However the neurological research on the use of compassion and empathy supports its use as a path to better solutions.

Post-Berlin

After I left Berlin I was planning to visit a workshop in Geneva on this very subject hosted by Olga Klimecki, François Bogacz and Jeremy Lack. Unfortunately I was not able to make the workshop but François kindly sent me the slides from the presentation.

I remain firmly convinced that Compassion and Empathy are the most powerful tools in our arsenal as mediators. The scientific back up for this is growing by the day. The historical evidence goes back thousands of years at least to the Vedas. Being able to suspend your judgement is more effective than using your judgement to manipulate a solution. Both methods perhaps have a place as many of the presenters showed but even in ‘hard-nosed’ international peace deals the participants are still individual human beings.

Martin Golder is a Mediate BC Civil Roster mediator and has been a mentor in Mediate BC’s Court Mediation Program. In addition to Martin’s active mediation practice in Victoria, he is also a retired architect.

This post was originally published on martingolder.wordpress.com and re-posted here with permission. Pictures provided by Arlene H. Henry, QC.

Gone Fishin’

Gone Fishin'

The summer heat has hit BC with what looks to be three solid weeks of sunshine and weather in the high twenties and low thirties. It’s perfect time to hit the beach, go camping, hike a mountain, or maybe even do a little fishing.

This blog is on break for the next couple weeks.

Enjoy the summer!

Photo credit:  “Gone Fishin’” by darwin Bell (creative commons)

On Co-Mediation Part VII: The Child Protection Co-Mediation Pilot Project

This is the final post in our “On Co-Mediation” series. Read the other posts here:

Introduction | Part I | Part II | Part III | Part IV | Part V | Part VI | Part VII

Through most of this series, posts have focused on individual co-mediation experiences, personal experiences of mediators who commonly mentor newer mediators and the business benefits and opportunities co-mediation may afford. What about from a larger, program perspective? Between May 2011 and March 2012 Mediate BC and the Child Protection Mediation Program operated a joint Child Protection Co-Mediation Pilot Project[1]. Colleen Getz of C.A. Walker & Associates produced an Outcome Assessment of this pilot project.

The project had three main objectives:

  • To provide professional development and practice support for child protection mediators
  • To increase internal capacity of the Child Protection Mediation Program (CPMP) to deliver culturally relevant mediation services through mediators on the Child Protection Mediation Roster
  • To design, develop, and provide opportunities to explore the effectiveness of a new model of mediation service delivery in child protection mediation.

A brief note about the process is probably important, as the project differs from how a private practice might engage in co-mediation.

Interested child protection mediators identified areas of interest for professional development through the co-mediation opportunity. Mediate BC received mediation referrals from various sources throughout the province and tried to match co-mediators by area of interest and background to the mediation referrals received (co-mediators were assigned, not selected by participating mediators). BC is a big province, and this approach quickly created budgetary problems so location was introduced as a primary consideration in co-mediator matching.

Splitting fees in co-mediation wasn’t a consideration as both mediators on each case were paid their standard rate set by the Child Protection Mediation Program so discussions around fees for the co-mediators were not a part of this project. The question of client billing for co-mediation also wasn’t a factor given child protection mediators are not paid by the participating families, but through their service contract with the Child Protection Mediation Program.

Highlights from the Outcome Assessment of the Child Protection Co-Mediation Pilot Project

From the Mediators

What were the mediators’ experiences of the co-mediation pilot project?

  • 72% of mediators found the feedback from their co-mediator was beneficial or very beneficial
  • 92% reported they would be interested in co-mediating again
  • 44% of Mediator Survey respondents indicated the primary purpose of co-mediation is connected to learning opportunities (training and continuing professional development)

So what did mediators identify as the benefits of co-mediation?benefited

I found this to be a wonderful piece of experiential learning. The coordination of our different approaches required me to really think about what I was doing and to see the mediation unfold from another perspective then the one I am immersed in.” – a Mediation Survey Respondent

Overall, this was a great experience and the opportunity to get feedback on my mediation style was invaluable. I would be willing to co-mediate again and, specifically, to co-mediate with this mediator. Thank you for this opportunity!” – a Post Mediation Evaluation Respondent

From the mediation participants

Interesting feedback also came from the mediation participants in how they perceived co-mediation. participants

Mediation participants identified large mediations, with multiple parties or participants (81%) and mediations in which there is significant conflict between the parties (75%) as the two types of cases most ideally suited to mediation. Mediators agreed with regard to large mediations (92%) but selected mediations in which the subject matter or other technical/legal requirements of the mediation are outside a particular mediator’s area of expertise as the other type most ideally suited to co-mediation (92%).

2 sets of ears were a lot better than one set. Having 2 mediators present were able to hear all involved & perhaps different views.” – a Co-Mediation Services Questionnaire Respondent

Capturing some highlights from the report does not give a full and nuanced view of the co-mediation pilot project overall. If one is interested in co-mediation, it is well worth the time to read the Outcome Assessment and consider these findings along with the experiences and thoughts shared earlier in this series.

Outcome Assessment of the Child Protection Co-Mediation Pilot Project

Co-Mediation Assessment Report by Mediate BC

Read more about the Child Protection Co-Mediation Pilot Project. Those particularly interested in the service delivery model question may want to learn more about the Child Protection Mediation Scheduling Services.

[1] Funded by the Legal Services Society of BC, the BC Ministry of Children and Family Development, Mediate BC, and the Law Foundation of BC.

On Co-Mediation Part VI: Money Talks – Co-Mediation and Billing by Sharon Sutherland

Today’s guest blogger is Sharon Sutherlanda Mediate BC Civil Roster mediator and a committed and experienced mediation mentor.  Sharon has designed and managed practicum programs for Mediate BC, and has mentored mediators in the Court Mediation Practicum, the Child Protection Mediation Practicum, UBC Law’s clinical mediation program, CoRe Conflict Resolution Society mediations, Toronto Small Claims Court, New Brunswick and Northwest Territories’ child protection mediations, and by private agreement in civil and strata disputes.

This is the sixth post in our “On Co-Mediation” series. Read the other posts here:

Introduction | Part I | Part II | Part III | Part IV | Part V | Part VI | Part VII

In my last blog post on this topic, I wrote about the various ways in which co-mediators might share fees between each other, taking into consideration the interests each brings to the negotiation.  This post is a continuation of that post with a focus instead on the discussion of fees for co-mediation with clients.  

Negotiating with the clients?

Most senior mediators will have both a repeat client base and a clearly stated fee for their services.  Since clients know in advance what that mediator charges, it may well be unrealistic to ask a repeat client to pay more than usual for a co-mediation arrangement – even where there is a clear advantage to the client to have a second mediator participate.  (I want to emphasize that there will be instances where it truly makes considerable sense from even a repeat client’s perspective to have a co-mediation team – and thus to keep in mind that negotiation of a new fee that includes additional payment for the co-mediator might be entirely realistic.[1])  With new clients and new referral sources, however, the mediator can negotiate a fee that considers the need to share fees with the co-mediator.  That might mean a variation on the hourly rate the mediator would normally charge that might reflect efficiencies that can develop with repeat co-mediation practice, or it might mean charging higher fees to reflect a combination of knowledge and experience that is especially useful and likely to result in faster or more durable agreements.  I will not attempt to enumerate all the interests that might factor into a fee agreement in any given case: I simply want to emphasize that the potential to negotiate a fee that makes sense to everyone in a mentoring arrangement simply requires the application of our usual interest-based negotiation practices.

Alternative billing for mediators

No doubt because of the influence lawyers have had on developing mediation business practices (both as highly influential participants in the selection of mediators and as mediators themselves), mediation has typically mimicked the legal profession’s billing practices and relied upon an hourly fee structure.  The prevalence of the hourly rate in legal practice is shifting these days, and that shift offers an opportunity for mediators to examine their own billing practices to determine the most rational approaches – which might vary from practice area to practice area.  Taking the time to examine one’s own assumptions about billing approaches creates the secondary opportunity to consider alternative billing when co-mediating.  Examining the many approaches to alternative fee structures that are becoming more and more common, and contemplating variations and further alternatives is beyond the scope of this post. Mediators who would like a starting point for identifying possibilities that clients and their counsel already are becoming familiar with might start with the recent article on this topic in The National.  This article emphasizes the importance of working with a client to come up with an approach that makes sense for both client and lawyer.  There is no reason that mediators cannot also enter this same form of discussion, including in the mix of interests the benefits to client and mediator that might flow from co-mediation in some circumstances.  A fee-structure that specifically recognizes co-mediation is a logical step in the evolution of both mediator fees and mentoring arrangements.

Differential billing for division of services – the “firm” model

Despite the degree to which mediator billing has tended to follow lawyers’ billing practices, one aspect of the traditional legal billing model that has seen little use in the mediation world is the use of differently skilled and more or less experienced mediators for different aspects of client work. In other words, mediators tend not to develop firms made up of a range of junior through senior practitioners in order to make effective use of the differences in their billing rates to provide appropriate and cost-effective service to clients.  In a mediation firm model, cases might be divided amongst mediators individually based upon rational billing criteria.  For example, clients with a Small Claims matter might engage the firm knowing that a junior mediator would take primary responsibility for the work, and comfortable that a senior mediator would be mentoring all aspects of the junior’s practice as part of the firm’s internal organization. This just might increase the use of mediation for smaller dollar value claims as “frequent users” call upon the same firms to resolve both large and small claims and are not told that mediation is simply not cost effective in matter with lower monetary value. Any such practice change increases the likelihood that clients will turn to mediation more broadly and to seek mediated solutions for a wider and wider range of their issues.

Co-mediation in this scenario would be a straightforward process benefitting clients, mediators and the firm.  Such a structure would also allow for an exploration of the division of work in ways that we, as solo-practitioners, simply never contemplate, and which might even lead to changes in the way that members of the mediation community frequently assert that mediation is really a second (third/fourth) career rather than something one might aspire to become while completing grade 12 Grad Transitions career planning.  One measure we might look to in judging just how thoroughly mediation has become a part of our conflict resolution thinking is the number of first career mediators that we see successfully enter the practice.[2]  A mediation firm model is one way to ensure that we do create a pathway for first career mediators.

 

[1] Some of the most common reasons for two mediators to be better than one in a specific case are: gender balance (most often discussed in the divorce mediation context, but equally applicable in many contexts in which one or more parties might find it stressful to work with a solo mediator who shares a gender with the “other side”, e.g. workplace harassment, personal injury where the nature and consequences of the injuries can be difficult to discuss with a room full of persons of another gender, some human rights topics); process-expert paired with content-expert where there is no content expert with enough mediation expertise; and very large multi-party mediations where some aspects of the mediation can be divided between mediators (though this is unlikely to occur in most mentoring situations).

[2] [Editor’s Note: An upcoming series on this blog will be an exploration of first careers in ADR: opportunities, challenges, and examples. Keep an eye out for this new series late summer 2015!]

On the Cutting Edge of DR – A Reflection on the 2015 BCAMI Symposium

by Julie Daum.

Photo of Julie Daum

Julie Daum

I have recently returned from the 2015 BCAMI Symposium “On the Cutting Edge of Dispute Resolution” in Vancouver on June 8 & 9th at the Morris J. Wosk Centre for Dialogue, Simon Fraser University on Coast Salish ancestral territory.

As a mediator living in the North-Central BC, I was excited to have an opportunity to meet other mediators, arbitrators and other “-ators” (The term “-ators” became a running joke at the Symposium for the multiple roles of the DR professional: mediator, arbitrator, facilitator. You get the idea.) and catch up with colleagues, acquaintances and friends. The BCAMI Symposium fulfilled my hopes to do this very well.

I wanted to share some of my experiences, impressions, thoughts and take-aways of the BCAMI Symposium. You may also be interested in viewing the complete schedule of speakers and topics and the presentation materials. I’ve written below on a few of the sessions I attended. That said, my opinions are my own and while expressed here, they may change over time.

I arrived early on the Monday morning knowing that the Symposium was sold out and anticipated a busy registration desk and wanted to get a good seat. I was not disappointed as the Morris J. Wosk Centre for Dialogue is beautifully laid out with hardly a bad seat in the Asia Pacific Hall where the keynote speaker and the introductory panel were scheduled.

Setting the Tone

Keynote speaker Geoff Plant, Q.C. opened his talk Whither ADR? Some thoughts on the Supreme Court of Canada’s View of the Constitution and Access to Justice with some words of caution in the pursuit of justice reform in Canada. A couple of recent Supreme Court decisions may have inadvertently erected barriers reinforcing traditional views. The decisions were not meant to limit ADR processes but may have negative consequences. He lauded the symposium participants on the work done so far in reforming the justice system by providing options to the public for resolving disputes and therefore increasing access to justice, but also noted the work isn’t done yet. We need to encourage access for the public and innovations need to be designed to meet the needs of the citizens rather than the needs of courts and public institutions.

It was a good reminder of the importance of the work we do and the impact on Canadian society. It also served as a motivator to keep innovating and designing processes for people that work. It awakened some big questions for me about access to justice: we need to work not just on meeting the needs of the public but having dispute resolution professionals that are reflective of the public. This would mean much more diversity.

The Meat & Potatoes

Med-Arb: The Delicate Art of Combining the Best of Two Worlds; Chair: Elton Simoes, MDF, MBA, Q.Arb., Q.Med.; Speakers: The Honourable Wally Oppal, QC, Gordon Sloan, M. Scott Siemends, C.Med., FICB

In Med-Arb: The Delicate Art of Combining the Best of Two Worlds, the panel started with opening remarks about the practice of Med-Arb that helped my understanding of the practice and some of the benefits. It also raised some questions that need to be answered about the combination of mediation and arbitration. Scott Siemens shared his experience with community designed Med-Arb process in Rwanda and Wally Oppal re-iterated the need to design processes that work for the people and are flexible in having a variety of user-friendly approaches. Gordon Sloan disagreed with the other panelists stating that it was an access to decision-making issue, not access to justice issue. To empower people it is the participants who need to be making the decisions and are therefore more likely to follow-through on them. He further argued that mediations fail due to lack of good process, and instead of switching to arbitration when a mediation fails, that we dig deeper to help the participants find their own resolution.

The discussion about some of the challenges of Med-Arb and how to resolve them, like when do you switch from mediation to arbitration? Who makes the decision to switch? How do you switch from mediation to arbitration? Do you approach a Med-Arb differently from just a mediation, and why? These stimulated thoughts that we need to continually challenge and be critical of our own processes. When do we design or engage processes because they work for us? When is it best for our clients?

Workplace Mediation; Chair: Jerome Dickey, BC, CHRP; Speakers: Jean Greatbatch, Brenda Hooper, C.Med., Roy Johnson

The Workplace Mediation panel was another diverse panel with three different approaches to workplace mediation. Brenda Hooper views the workplace like a family system and offers conflict management coaching as well as workplace mediation. Jean Greatbatch brings a restorative element to her multi-faceted workplace practice. Roy Johnson, who works with other dispute resolution professionals that offer different services to organizations, brought forward The Top 5 Ways to Waste Everyone’s Time in Workplace Mediation. A common theme from the panelists, and excellently summed up in #3 of Roy’s list, was:

#3 -Want to Fix Everything. Mediation is not a cure, it is just a tool. If we are not discussing how to make sure progress is sustained, we are wasting time.

This point was mentioned earlier in the day during the session on designing processes as well. We need to be helping clients to restructure their organizations and build skills to prevent and resolve their conflict. The speakers outlined the importance of going to root cause of the conflict. Jean Greatbatch compared it to having a cleaner come to your house. If you don’t have a good system of storage, organization, and basic cleaning skills, then the house will soon be the same mess it was before the cleaner. We could encourage an addiction to our services but it wouldn’t be beneficial for the clients, or our reputations.

I want to check out Roy Johnson’s book he wrote with his colleague Larry Axelrod, “Turning Conflict into Profit”.[i]

How to Deal with High Conflict Personalities; Chair: Jerome Dickey, BC, CHRP; Speakers: Michael Lomax, Bob Finlay, Craig Neville

The How to Deal with High Conflict Personalities session was structured so that the chair asked a question and the three panelists answered the questions and had roughly equal speaking time and we got to hear from three experienced practitioners. Among some of the great tips for dealing with participants who exhibit the behaviors and traits of someone with High Conflict Personality Disorder, the speakers spoke about how they manage themselves in the process:

  • managing your expectations,
  • acknowledging our interest as mediators in success, and
  • self-care.

I appreciated the focus on observable behavior and not expecting participants to change, but focusing on the future and the specific goals of the mediation, and passing the ball of responsibility to the HCP instead of carrying it ourselves. I was relieved to hear about the necessity of self-care including regular vacations and how we need to continually do our own work in order to help provide participants with clarity regarding their conflict. I found some motivation to get busy planning my family’s next adventure to make our first trip to the Caribbean at Christmas, and eliminate the guilt about taking time off to recharge and refresh myself!

Access to Dispute Resolution: fromADR to DR; Chair: Assunta De Ciantis; Speakers: Geoff Plant, QC, Carol Baird Ella, Kathleen Bellamano

In the final session, Access to Dispute Resolution: from ADR to DR, we heard about the challenges of providing cost effective processes and services to the public and some ways Kathleen Bellamano found to help clients access those services. We also heard about the obstacle-ridden path that former Provincial Court Judge Carol Baird Ellan found as she left the bench to attempt to provide low-cost dispute resolution services to clients. Ultimately she has not yet been successful in that endeavor and her tale was a cautionary one, lest we congratulate ourselves too soon that we are making mediation and arbitration accessible and affordable for the public.

Final Thoughts

As I left the Symposium my mind was awash with thoughts of how I can improve my own practice as mediator, and the larger questions of justice, access and affordability. I also came away considering how to support opportunities to ensure we have a broad and diverse array of practitioners in order to provide the public with choices to assist them when they need to make important decisions in their lives.

I also left renewing old friendships and with a handful of business cards from those I just met.

My sincere thanks to BCAMI and the Planning Committee (Assunta De Ciantis, Elton Simoes, Bob Springer, Diane Tucket, Lee Turnbull, Gareth Keane, Jerome Dickey, Peter Austin, Brenda Hooper, Kari Boyle) for organizing the 2015 BACMI Symposium. I’d also like to thank Royal Roads University and the cooperating entities ADR Institute of Canada, ADR Institute of Alberta, Justice Institute of BC and Mediate BC for their sponsorship and support of the 2015 BCAMI Symposium.

[i] [Editor’s note: “Turning Conflict Into Profit” is available to Mediate BC Roster mediators through the Roster Lending Library.]

Julie Daum is a Child Protection Roster mediator, facilitator and conflict resolution coach and instructor from Fraser Lake. Julie has been a mentor with the Child Protection Mediation Practicum, and currently focuses on developing culturally appropriate practices for working with First Nations families and communities. She is a member of the Wet’suwet’en First Nation and belongs to the Frog Clan.

The opinions expressed in this post are those of the guest blogger and not reflective of the opinion of the Mediate BC Society or any of its affiliates. Disclosure: Mediate BC was a “cooperating entity” for the 2015 BCAMI Symposium.

On Co-Mediation Part V: Money Talks – Co-Mediation and Fees by Sharon Sutherland

Today’s guest blogger is Sharon Sutherlanda Mediate BC Civil Roster mediator and a committed and experienced mediation mentor.  Sharon has designed and managed practicum programs for Mediate BC, and has mentored mediators in the Court Mediation Practicum, the Child Protection Mediation Practicum, UBC Law’s clinical mediation program, CoRe Conflict Resolution Society mediations, Toronto Small Claims Court, New Brunswick and Northwest Territories’ child protection mediations, and by private agreement in civil and strata disputes.

This is the sixth post in our “On Co-Mediation” series. Read the other posts here:

Introduction | Part I | Part II | Part III | Part IV | Part V | Part VI | Part VII

Something about discussing money causes many professionals embarrassment.  A sense of awkwardness can arise even in mediators who have mastered the art of the difficult conversation (so long as it’s someone else’s difficult conversation).  It’s not surprising that one of the most common concerns expressed by mediators regarding the possibility of co-mediation is the difficulty in addressing fees for two mediators with clients.  I want to start with a simple reminder that negotiation and management of difficult topics is precisely the skillset we are offering to clients: if fee discussions make you squirm, it can help considerably to give conscious consideration to the application of the mediation skills you would utilize if you were assisting two other parties to negotiate a deal.  (Just as many of us catch ourselves being far less skillful in personal conflict with family and friends than we ever are when professionally engaged, we can also lose sight of the fact that negotiating fees is something we have all the skills to do well – as long as we’re wearing our mediator hats instead of any awkward, private life hats we might switch into from time to time.)

Sharing fees?

One of the primary reasons that fee sharing between co-mediators or a mentor and mentee is important to address is that most mentees will seek experience in order to join one of the Mediate BC rosters.  For their participation in a mentored mediation to count towards the Civil Roster’s 10 mediation requirement, the mediation must be fee-paid or part of an approved mentoring program.  Private arrangements between two mediators will not fall within an approved mentoring program, so the mentee must receive some portion of the mediation fee (at least 1/3) for the mediation to count. For this reason, I’m only discussing arrangements for co-mediations (not observations) and presuming that fees will be split.

Each mentoring/co-mediation situation is different, and while most learning mediators will have an interest in roster certification, it is helpful to treat each mentoring arrangement (and even each individual mediation within an arrangement) as an opportunity to explore interests and come up with a plan that benefits all participants.

Negotiating with the student mediator

There is a wide array of possible arrangements that one can make with a learning mediator, just as there will be a wide range of interests on the parts of both mentor and learning mediator in entering into co-mediation. A few of the most common arrangements include:

An arrangement for a set number of co-mediations to meet Roster qualifications combined with a set number of co-mediations or referrals following

Many new mediators are seeking a specific number of fee-paid mediations to meet Roster qualifications (usually up to 10).  As a consequence, they may well have an interest in a longer arrangement, rather than a one-off co-mediation opportunity.  In these circumstances, the mentor may provide the initial co-mediations and may bill their client the usual fee.  Payment of a negotiated portion of that fee to the learning mediator might be viewed by the mentor as “giving back to the community” or “paying it forward” following mentoring opportunities someone offered them in the past.  In that case, the mentor will likely be open to a few such mediations in a year, treating them much like pro bono mediations which they might similarly (or otherwise) take on.

Alternatively, the arrangement might be conceived of as an exchange: a portion of the mentor’s usual fee for X mediations for any of the following (and more):

  • A set number of referrals for co-mediations with the mentee once the mentee is on the Roster. (This typically presumes that the new mediator has a distinct referral base or area of expertise that the mentor would normally not receive referrals from);
  • Referrals to the mediator from the mentee’s own continuing practice as a lawyer, psychologist, etc. (There are potential issues of conflicts of interest, but an agreement would address the ability of the mentee to make referrals or to encourage colleagues to make referrals);
  • Other forms of work exchange (e.g. I have traded co-mediations for administrative help in scheduling mediations and billing. One might also exchange other services of value that a mentee can provide such as website design expertise, social media support, or any of a wide range of tasks.  And the trade need not be for professional services: I have seen parties to mediations settle the last few dollars of a dispute with an exchange of services such as hairdressing, cooking for each other, sharing of “comp” tickets for theatre, etc.  In mediations I will ask parties to consider whether there is anything else of value they might want to bring into a “stuck” discussion.  We can certainly do the same in exploring our own interests.  Think creatively!)

An arrangement for a single co-mediation based on a referral from the mentee

This is likely the most straightforward arrangement for fee sharing.  The mentor would not have the case (which includes the opportunity to build his own practice in a different area) were the mentee not to bring the case to him, so the financial considerations are limited.  It’s still relevant to consider lost time from other business opportunities, the number of such mediations one can afford to do, etc., but it is typically easy to weigh these kinds of considerations against a simple, shared fee – even if that fee is for less than the mentor might have billed on his own.

These kinds of one-off arrangements turn on fairly straightforward questions:

  • Do I want to help out this particular mediator?
  • Am I interested in the case, or case type, or the business opportunity of gaining experience in this area, or anything else?
  • Will it prevent me from doing something else?

If one takes on the co-mediation, then the fee split should be a straightforward negotiation. 

An arrangement for a single co-mediation of a case referred to the mentor 

Clearly there is more involved from the mentor’s perspective in a negotiation regarding splitting their own fee for a mediation with a co-mediator seeking experience or mentorship.  For many in the BC mediation community, the existence since 1998 of the Court Mediation Practicum Program and other Mediate BC practicum initiatives has normalized the idea that a learning mediator might pay to participate in a mediation to gain valuable training and experience.  Within that context, sharing fees with someone asking to learn is not entirely intuitive.

It may be helpful for a mentor to keep in mind the benefits (professional, personal, and possibly long term financial) that can result from a co-mediation so the notion of giving up a portion of fees is consciously weighed against the real, if less immediately “countable”, benefits. (These benefits have been discussed throughout this series.)  With that in mind, it is also worth contemplating whether any additional benefits to the clients arise from the co-mediation that might justify charging a higher fee for the two mediators. (The negotiation with the client is discussed further in my next post, but consider whether there might be an advantage gained by the clients that should be recognized.) Essentially, as with any negotiation, carefully thinking through the risks and potential benefits to each party, and contemplating the potential for “expanding the pie” by including the possible interests of the clients in the discussion means that the best agreements are available when one has genuinely prepared to problem solve rather than simply responded in the moment to suggestions.

An arrangement for sharing pro bono mediations

I wrote in last week’s post about the potential to co-mediate pro bono and fee-waived or reduced fee mediations.  In that post, I was focused on the potential to provide a learning opportunity for peers, but, one might choose to co-mediate with a mentee in pro bono mediations you would take on in any event.  In such cases, fee sharing is, for the most part, eliminated from the negotiation between co-mediators.  However, learning mediators may well wish to have these mediations counted as part of their requirements to join a roster.  In principle, there should be no difference between a mediation in which the mentor and mediator share fees of $1500 via a ⅔:⅓ formula and a mediation where a fee of $0 is split on the same basis.  If the learning and participation of the mediator is the same, I would argue that the experience should be considered in the same way by the Roster Committee.  However, I would strongly suggest that mediators considering such an arrangement, and hoping to count a mediation for Roster credit, seek confirmation from Mediate BC before relying on an assumption that any such mediation will count.

[Editor’s note: The Roster Committee wants to ensure each mediation counted toward the experience component of a Roster application is a “true” mediation and not a less formal problem solving exercise; fees and the use of an agreement to mediate provide a good differentiation between the two types.]

An arrangement between a mentor and a “cohort” of learning mediators 

I don’t know anyone who is doing this explicitly, but I think a symbiotic relationship could be developed by a mentor working with a group of learning mediators sharing subject interest.  Writing this blog has inspired me to consider developing just such a cohort!  What I am imagining here is that a single mentor might well work with a group of individuals training to be mediators who all share a community with common issues to mediate.  For example, many minor sports associations are developing volunteer board members’ expertise in conflict resolution so they can play the role of mediator in disputes between parents and coaches, parents and parents, junior athletes, etc.  At the provincial level, sports associations are at highly varied levels of development of dispute resolution expertise despite requirements to have dispute resolution processes in place to receive some forms of funding.  Even greater diversity exists at the community sports level.  A mentor with an interest in sports mediation might very well work with a group of, say, five board designates to train them in conflict resolution and/or to co-mediate the first disputes that go to mediation within the organization.  I use sports organizations as an example because of my own experience in many capacities with such organizations, but the same model is feasible for other groups such as clubs for any hobby or interest, any residential community (from school residences, through strata corporations, and seniors’ centres), not-for profits (where disputes with volunteers can be common), special interest groups, etc.  Think about your own areas of interest and connections: is there an opportunity to help develop a better community culture of conflict resolution through co-mediation with existing leaders?

In Part VI of the “On Co-Mediation” series, Sharon continues her thoughts on co-mediation fees but as they relate to the mediation clients.

This post also now appears on True North Dispute Management.