We are very pleased to advise that the Comite Des Organismes Accrediteurs en Mediation Familiale (Quebec) has published on its website a translated version of Mediate BC’s Distance Mediation Practice Guidelines.
These guidelines were a key deliverable from our Distance Mediation Project, a six-year research initiative funded by the Law Foundation of BC, that explored the use of technology-assisted family mediation (focusing on separation and divorce issues). Find out more about the Distance Mediation Project here.
Confidentiality is a key benefit of mediation (compared to a public court process). However, the principle of “confidentiality” is not well understood and often confused with “privilege” or “privacy” issues. In his Slaw post today (January 15 2015), Michael Erdle tackles this important issue by discussing two recent Canadian decisions: the Supreme Court of Canada decision in Union Carbide Inc. v. Bombardier Inc. and Jan Wong v. The Globe and Mail Inc, a decision of the Ontario Superior Court of Justice.
As Michael notes at the end of his post, it is critically important that mediators discuss with mediation participants:
– the wording of the Agreement to Mediate which spells out the extent to which the parties contract to keep information confidential (including situations in which one party may take steps to enforce an eventual agreement); and
– the eventual Settlement Agreement which should explicitly describe what, if anything, will be “confidential” and what happens if one party breaches those terms.
One last point: the Settlement Agreement (like any formal contract) should also include robust and well-considered provisions describing what happens if there is a dispute between the parties about the agreement (a dispute resolution clause – including mediation of course!).
This is a good time to review your standard wording. Let us know what you come up with!
Kari D. Boyle, Executive Director, Mediate BC Society
Image courtesy of Stuart Miles at FreeDigitalPhotos.net
You can’t have a real conversation without curiosity. It can lead to creative and innovation approaches to conflict and open a pathway to resolution.
We all know this but I wonder how many conflict resolvers make a concerted effort to identify and uncover their own assumptions and to be open to the possibility that they might be wrong. Owning up to our errors gives us opportunities to learn new things.
They didn’t teach us this at law school!
Good news for 2015 – it is not too late to learn how to be genuinely curious. If you are looking for a simple, step-by-step method of honing your curiosity I encourage you to take a look at a new book by my friends and colleagues Kathy Taberner and Kirsten Taberner Siggins: The Power of Curiosity – How to Have Real Conversations That Create Collaboration, Innovation and Understanding. Their website offers the opportunity to read all of Chapter One for free. I think you will be hooked.
The examples in the book range from business, leadership, coaching, personal relationships and parenting situations. This is a skillset that transcends the context.
I’m curious to find out your feedback about this book as you apply its approach in 2015.
From everyone at Mediate BC, a very Happy New Year!
Today we welcome a guest post by Marlene Russo, lawyer and mediator in Victoria BC. Marlene is also Mediate BC’s Mediation Advisor in the Victoria Justice Access Centre.
The October 2014 BC Court of Appeal decision in McKenzie v. McKenzie might well end up being a game changer for family mediators and lawyers in BC. The parties had been married for 12 years. There were no children of the marriage. Both spouses had incomes in the top 2% of Canadians, with the husband having the larger income. The wife claimed spousal support.
The Court clearly stated that they must not only consider the familiar question of whether the wife had been disadvantaged by her marriage (she hadn’t been), but referred to two prior Court of Appeal cases (Chutter 2008 and Bell 2009) to clarify an additional issue as follows:
In long term marriages such as this one, the spouses should not be economically disadvantaged by the breakdown of the marriage.
The Court granted the wife spousal support. It is now clear that being economically self-sufficient does not prevent a successful claim from being made.
This is a case worth reading and talking about as it seems to resolve a long-standing debate on the issue. You can find it easily on the CanLII website.
Mediate BC Society and the Legal Services Society recently launched an innovative new pilot program.
The Family Mediation Referral Program assists BC families to achieve early resolution of family disputes involving division of property/debt and spousal support, in addition to any child related issues (such as parenting arrangements, guardianship, child support). The program provides people who qualify financially for legal aid – but do not have a legal issue that qualifies them for representation by a legal aid lawyer – with a referral to Mediate BC for 6 hours of paid family mediation services by a private mediator. Fees for mediation services beyond the 6 paid hours are determined by the parties’ income and net assets.
Mediate BC has assembled an impressive group of Family Roster and Associate Family Roster mediators from around the province who have offered to provide their services to this program. Mediate BC is very pleased to be collaborating with LSS on this project which will increase access to justice for BC families experiencing separation and divorce.
To access the program, people can visit their local legal aid office or call the Legal Services Society at 604 408 2172 or toll free at 1 866 577 2525, Monday to Friday from 9:00 am 3:45 pm (Wednesday to 2:00 pm).
We welcome a special guest post today from Monique Steensma, Manager of the Court Mediation Program of Mediate BC. Monique describes an exciting new Online Dispute Resolution / Mediation initiative available to small claims litigants at Robson Square Provincial Court in Vancouver. Feel free to pass this important information along to your colleagues and clients – anyone who has an active or potential small claims matter in that registry:
On-Line mediation has come to Robson Square Provincial Court through a pilot program (the “ODR Pilot”) being operated by the Court Mediation Program. The ODR Pilot was developed over the past 18 months in cooperation with the Office of the Chief Judge, Court Services Branch, the Dispute Resolution Office at the Ministry of Justice, the Justice Education Society and Mediate BC.
In early November, the ODR Pilot started to invite parties to applicable small claims cases in Rule 7.4 to apply to have their mandatory mediation conducted via the ODR process, instead of the standard process where parties attend an in-person session for two hours at the Courthouse.
In the first stage of the ODR Pilot, a mediator will work with the parties on a text-based platform where they can communicate, upload documents and images, and begin work on a potential agreement. In this stage, parties can participate anytime they like; the platform is available to them 24 hours a day, 7 days a week and communications are asynchronous. All parties require is an internet connection and a computer, tablet or smart phone.
Cases can reach full settlement in the first stage, or may go to a second stage where parties meet with the mediator in a live web conference or teleconference to conclude the mediation. All cases settled in the ODR Pilot can use the same Court-enforceable Mediation Agreement that is used for in-person mediations.
Parties who settle their disputes using the ODR Pilot need never set foot in the Courthouse. Those who do not settle will proceed to trial conference, just as if they had attended an in-person mediation.
A small group of experienced Small Claims Mediators participated in a training program for the ODR Pilot and will be conducting these mediations: Neil Hain, Leanne Harder, Sharon Sutherland and Dan Williams.
ODR Pilot Program
[first published in Mediate BC’s Newsletter December 1, 2014]
Professor Julie Macfarlane and her team at the National Self-represented Litigants Project have produced a terrific resource for the public. It is a plain language document that provides a practical and easy-to-use guide to settlement.
Mediators should take a look and consider referring clients to this helpful resource – whether they are represented or not. There is an excellent section on mediation including detailed tips about how to prepare for mediation.
Lawyers should consider how they could use this guide to support their clients.
Thanks so much to Professor Macfarlane for her prolific contribution to improving access to justice in Canada.
Today we are very pleased to feature an article recently penned by Mediate BC Roster Mediator Julia Menard. She explores the complexity of the current BC teachers’ dispute from the perspective of a conflict resolution practitioner: how can we move through impasse (even a seemingly intractable impasse)? Her insightful article is the third piece in her most recent newsletter.
BC Teachers’ Strike: 3 Tips from a Mediator
As some of you may know, we’ve got a fierce battle going on in BC at the moment. All our teachers in the public school system are out on strike and the educational system has come to a grinding halt.
By the time you read this, perhaps the teachers and students will be back in the classroom. Nonetheless, these 3 tips for how to break an impasse, is useful for any of us In a stuck position in our discussions.
1. Stop Blaming – Start talking about impact
It’s easy to tell someone else that they are wrong. Each side in a conflict easily slips into blame. It’s a common thing to do when we are in pain. And, it’s not helpful. It makes the other party feel defensive, not open. This can provoke counter-attacks and it certaintly doesn’t lead to any learning. Instead, express how the situation is impacting you. Speak about your experience, not about the other party’s. With the teachers’ strike, each side in this dispute, and all the followers in each camp, can get more vigilant about not blaming the other. A key to de-escalating the rhetoric is to shift from the language of blame to the language of commitment. What are you committed to? What’s important to you? What do you want and are hoping for? This more future-focused language also makes it easier for the “other side” to agree with you. What you focus on, grows.
2. Stop Pressuring – Start creating space
Each side is trying to pressure the other side into agreeing to something. Have you come across this kind of dynamic in your own life? If someone starts pressuring and pushing you to do something, what’s your natural inclination? If you’re like most people, you’ll want to resist, push back, walk away or ignore. It’s the same dynamic with the teachers’ strike. The BCTF is pushing to force the government to negotiate. The government is pushing to force the teachers’ federation to negotiate. Both parties want to negotiate – but neither can easily agree to it if it’s expressed through pressure. A key way to de-escalate pressure is to stop demanding something happen, and refocus on what both parties want. This creates more space for something to happen. In this situation, the pressure is coming from the teachers being on strike. There’s a pressure to resolve the issue so the teachers and students can get back in the classroom. That’s not a helpful environment to negotiate in. That’s kind of like negotiating with a gun to your head. Way too stressful. To start to de-escalate, both parties need to separate the strike from the contract talks. Put the kids and teachers back in the classroom. Put the negotiators back in the negotiating room. Create more time and space for the discussions to happen.
3. Stop Demanding – Start dialoguing
Each side is demanding agreement to their own solutions and rejecting the solutions from the other. What’s more helpful is to be flexible with solutions, but firm on the values driving those solutions. So, for example, the BCTF proposed the solution of binding arbitration. The government didn’t want that solution. Instead of seeing this as one party offering something and another party rejecting it, it’s more helpful to see it as one party proposing something that needs to be explored. Values drive our solutions and values are as important as how to implement them. The other party counter-proposed (more or less saying “no”). This also needs to be explored. As anyone in sales knows, the word “no” is only the starting point in a negotiation. Both sides need to start to get curious about what is behind their various demands.
The key question to ask in any impasse is “What’s most important here?” If we ask that question with the last proposal for binding arbitration, one can guess for the BCTF, it might be quick resolution. For the government, saying “no” might be to maintain influence on the outcome. So, digging a bit deeper reveals two criteria for any new solution to be “win-win” – that is: quick resolution and maintaining autonomy. Another proposal is the BCTF would like Clause E80 thrown out. The government would like it kept in the discussions. What’s important to both here? The BCTF wants to maintain autonomy, the government wants quick resolution. They each want the criteria of the other!
Does this surprise you? It no longer surprises me. When you peel back the layers, you find in most disputes incredible common ground. Both parties want to get back to dialogue. Both parties want to maintain their autonomy. Both parties want to serve their constituents. They need to be exploring, clarifying and discussing each of their impasses in mediation. Both parties want to go to mediation. I think if they both pick up the phone, the mediator they first approached, Mr. Vince Ready, will answer.
“An ounce of mediation is worth a pound of arbitration and a ton of litigation!” -Joseph Grynbaum
Julia was also interviewed on CBC radio Victoria last Friday (September 5th). Take a listen here. You can learn more about Julia by visiting her Mediate BC Roster profile and visiting her website www.juliamenard.com.
What can the BC mediation community contribute to this important issue? What processes/approaches do you think will assist in getting kids back to school? We look forward to hearing from you!
I have been very inspired by the ongoing posts to the National Self-Represented Litigants Project blog. My post last week was an introduction to a very important topic featuring frequently in that blog. This post takes the topic to a slightly deeper level.
One could write an entire book (or two) on this topic. It is absolutely central to the civil and family justice reform work that is ongoing in Canada. For the purposes of this short article, I will try to identify what I believe to be some of the most critical pieces.
First, I assume that “justice system” in this context means the broader system to resolve disputes and not just the courts. Mediation can be used at all stages, from the time a dispute arises, prior to the commencement of a formal court action, during a court action and right up to the conclusion of a trial or an appeal.
Second, it is important to note that mediation is not a panacea and it is not perfect fit for every conflict. However, the benefits are so compelling it should at least be considered seriously as an option.
The Final Report of the National Self-Represented Litigants Project states:
A significant number of SRL’s say that they were never offered mediation, and/or do not know what it is. This is a clear gap that needs to be urgently addressed (for example in educational workshops and better publicity). Some SRL’s were nervous about participating in mediation, and especially where there was a lawyer representing the other side. Some SRL’s who were eager to resolve their case expressed frustration that the Bench did not exercise greater pressure on a recalcitrant opposing side to come to mediation.
1. Education of the Public
Mediation is still an unknown concept to most individuals. Recently, Mediate BC was invited to participate in a “wellness conference” at a local college. We were excited to be included as we think mediation is indeed a healthy option for citizens with legal problems. It was not until we set up our booth and surveyed the other participants that we realized the organizers probably thought we were a “meditation” rather than a “mediation” organization! This is, unfortunately, a common mistake. We used it as a wonderful opportunity to raise awareness of mediation as a useful and healthy tool! When we explained the process and compared it to the court process people’s eyes lit up. They got it immediately and appreciated its potential benefits.
Similarly, at a recent expo of small businesses, many participants told us that they had been through extensive court battles and did not want to repeat that experience.
There is still a cultural bias in favour of the court system for conflicts of a legal nature. Many people still think that their only option is to start a court action if they can’t resolve something directly. Some insist on having their “day in court” when they really don’t understand what that means.
Obviously, more education is required. But when and for what audiences? Our approach is to target early education/awareness efforts at the group we call “trusted intermediaries” – the people who are sought out by those facing legal disputes and court actions. Trusted intermediaries include lawyers but are a much wider group than that. They include financial advisors, therapists/counsellors, faith leaders, legal advocates, community service groups etc. They are often the ones whose job it is to guide people in conflict day in and day out. If they have an understanding of the mediation process and its benefits, they can provide strategic assistance at these critical times.
2. Education of System Representatives
Those responsible for the formal justice system (lawyers, paralegals, judges, court registry staff etc.) must have a detailed understanding of mediation and how the public can access mediation resources and programs in their jurisdiction. I agree with Nic that, for lawyers, education must go beyond just law school or new lawyers will find that the adversarial legal culture will swallow up their collaborative approaches. As Peter Drucker said: “Culture eats strategy for breakfast”.
BC’s new Family Law Act requires “family dispute resolution professionals” (lawyers, family mediators, family arbitrators and parenting coordinators) to discuss the advisability of using various types of resolution (including mediation) and inform the party of the facilities and other resources that may be available to assist in resolving the dispute. I believe the intent was that if mediation was a viable option for a family the family lawyer should provide information to his or her client about the process and recommend that it be used. Time will tell whether these provisions are applied in a meaningful way.
There are opportunities for lawyers to take new kinds of roles that are more affordable for people and yet still support the mediation process.
The current formal justice system is highly resistant to change. These are big changes and they will not come easily.
The Final Report references counsel’s perceived “antipathy towards mediation”. This included a perception that counsel did not suggest mediation as a viable alternative and did not include strategic coaching of the client about mediation and how to use it. One has to ask whether this is a result of counsel’s lack of familiarity with mediation or a symptom of a more deeply held systemic resistance (a “culture of opposition” in the words of the Final Report).
3. Build It Into the System So It is Easily Accessible
Mediation should not be an after-thought. It should be included in all PLEI information, triage processes and referrals. We need to give people real options at an early stage and at each strategic decision point along the way.
4. Ensure Mediation Processes are Affordable and Resources are Allocated Fairly
Ideally, mediation services should be available in every community and priced in a way that meets the financial realities of the parties to the dispute. Mediation is actually much more affordable than many people believe and, given that it can resolve a dispute much more quickly than the court system it can save parties significant sums.
We would like to see mediation services available on a sliding scale basis that allocates resources fairly depending on the actual financial situation of the parties. This is the family mediation model now in place in many court locations in Ontario (subsidized by government) and it is working well. We believe it could work for pre-court disputes as well.
5. Consider Mandatory Processes
“Mandatory mediation” rules are really “mandatory attendance” rules. All you can do is get people into the room (or involved in the process through distance technology), you can’t force them to talk to each other and certainly not to reach agreement. Mediation is a voluntary process in that sense. However, we know that once people come together for mediation the process works most of the time. Of course, special attention needs to be paid to ensuring safety, particularly for families who may be experiencing domestic violence. Research demonstrated many years ago that outcomes from a civil mandatory process were similar to those from a non-mandatory process. The truth is that even people who are initially resistant to the process like it when they get into it. And it works.
6. Use Popular Culture
So far, I have yet to see a TV show or movie that fairly displays a realistic mediation process. We know how media, and social media in particular, can shift culture quickly. So, as my last point, I suggest (perhaps whimsically) that we need a creative and compelling TV or internet show that features competent and qualified mediators in action. This could correct misunderstandings about the process and normalize it as part of our culture more quickly than any advertising or promotional campaign.
I realize that these comments just touch the surface of the issue. However, I hope it helps to spur a deeper dialogue towards real change.
Kari D. Boyle, Executive Director, Mediate BC Society
Professor Julie Macfarlane issued a new post to the National Self-Represented Litigants Project Blog today. We highly recommend that both mediators and lawyers read it and consider how they can make the mediation process work better for self-represented litigants.
It used to be that, in motor vehicle personal injury cases in BC, ICBC would refuse to mediate with a self-represented litigant. The general wisdom was that this was much too risky and could result in a significant waste of resources if the plaintiff later experienced “settler’s remorse” and wanted to set the agreement aside. In that milieu the access to justice consequences were not considered to be too significant since most personal injury claimants could retain a lawyer using a contingency fee arrangement. Since then, however, claims in the small claims range ($25,000 or less) became less attractive financially for plaintiff counsel so the problem remains.
Contingency fee agreements are not common outside of the personal injury / insurance milieu.
As Julie points out, “the world would be an easier place for other justice system participants if every SRL could have a lawyer. However, this is not about to happen.” Yes there is risk in mediating with an SRL but there is also significant risk and damage that results from an unwillingness to offer this tool to parties in dispute. More needs to be done to make mediation accessible to SRLs and mediators can help in a number of ways including:
- highlighting the importance of the pre-mediation process as an educational as well as a preparation tool
- structuring the mediation as a series of shorter meetings rather than one exhausting marathon session
- ensuring that the SRL has access to legal information AND information about where to obtain legal advice if needed
- having a list of lawyers who are willing and able to provide unbundled legal advice and coaching to SRLs before, during and after the mediation process
- providing the SRL with other resources to support them including paralegal help, assistance with form completion etc.
Professor Macfarlane provides a more complete list in the blog post.
A callout to mediators: what are some of the approaches that you use to support SRLs in the mediation process AND to get the word out about mediation in this context?
We will collect the comments and publish another post in a few weeks.
Kari D. Boyle, Executive Director, Mediate BC Society