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.
When 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
What 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.
I 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.
Another 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.
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 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.