Save the Date for Mediators Beyond Borders International’s Parallel Event at the 61st session of the Commission on the Status of Women (CSW61)

I am honoured to be joining several highly accomplished women mediators, negotiators and leaders in New York for this exciting panel “Peacebuilding Beyond 2017: Women as Agents of Change” on Tuesday March 21st.


Our dialogue will explore how we can foster gender equity and create lasting economic empowerment opportunities for women. The event, sponsored by Mediators Beyond Borders International, is a parallel event during CSW61 which will highlight the extraordinary work of women mediators and leaders in peacebuilding, conflict resolution and prevention, education and partnerships. My fellow panelists are enormously qualified women, whose extensive credentials I cannot properly summarize in this post:

Special contributors include Maria Volpe, an internationally recognized scholar in mediation and Director at New York’s CUNY Dispute Resolution Center; Jill Strauss, a conflict resolution and communications professor at City University in New York; and our own Mina Vaish, Managing Director of York Mediation, where she provides ADR processes in family, civil and workplace disputes and organizational consulting on policies and procedures in conflict resolution. Mina has pioneered the use of collaborative mediation in complex cases and is a committed contributor to the work of Mediators Beyond Borders.

The UN Commission on the Status of Women is the principal global intergovernmental body exclusively dedicated to the promotion of gender equality and the empowerment of women. It is instrumental in promoting women’s rights, documenting the reality of women’s lives around the world and shaping global standards on gender equality and the empowerment of women.

Visit our Twitter and Linkedin for updates from New York!

 

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Telephone Mediation is Family Mediation Friendly

Telephone mediation can change the dynamics of relationships between disputants by positively impacting the tempo and tenor of the discussions.

 

 


The choice of the space in which mediation takes place is vital to the process of conflict resolution. Factors such as climate, the culture of mediation practice, and procedures that govern the practice of alternative dispute resolution (“ADR”) (such as rules of confidentiality) have usually confined ADR proceedings to enclosed spaces in colder climes.

However, the ubiquitous phrase, “this is how we have always done it”, can be one of the greatest enemies of progress.  ADR professionals often book face-to-face meetings without consideration for the particular socio-cultural needs of clients.

While the location chosen by the service provider may be a neutral safe environment, it may not necessarily be the best option for the individuals concerned, given their personal circumstances.

By doing away with the prospect of face-to-face confrontation, mediation by telephone and skype allows parties’ negotiations to be less emotionally-charged – away from the gaze of the other party who might be ready for confrontation.

With telephone and skype as options in the mediation toolkit, meeting spaces can potentially be expanded to include the secure and familiar environments of parties’ homes.  Our world is growing smaller and consciousness about our socio-cultural diversity is rising.  It might be worth our while, as service providers, to consider incorporating new technologies into our service models, thus making them more inclusive and efficient.

Originally posted December 2010


Regina Thompson smiling

Regina Thompson

Regina Thompson is a roster mediator for mediate393. She also has extensive experience mediating human rights matters.

Strategic Intervention Services Associates

Email:sisa@rogers.com

www.sisadr.org

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Best Practices for Screening in Family Mediation-Arbitration

There is a consensus among those who teach and practice screening for power imbalances and domestic violence that some ways of doing it are better than others. Read the following guidelines for more insight on screening in family mediation-arbitration.

Originally published October 2013 ©

The best practice has been established and used for years in the context of mediation and is adapted for family arbitration.

We suggest that family arbitrators should take responsibility for the integrity of the screening processes that are used in their arbitrations.

Guidelines for Screening in Mediation-Arbitration

We suggest that family arbitrators read and follow these guidelines:

  1. Intake/screening meetings—Before starting the mediation phase of a mediation-arbitration, mediator-arbitrators should meet with each party, separately and confidentially, to assess whether the case is appropriate for mediation-arbitration. The mediator-arbitrator will seek to learn the concerns each client has about procedure; it is not a fact-finding exercise.
  2. Keep confidentiality—A key element of screening is its confidentiality.  A person who has been threatened with death or fears for their life, or that of their children, will not disclose this fear unless they feel safe. The risk of retaliation for letting the ‘cat out of the bag’ in such cases is too great. Parties must be able to trust mediator-arbitrators to respect the confidentiality of all disclosures made in a screening process.Screening is supportive of the needs of both parties. It is not for the purpose of finding out who is truthful, who is “good” or who is ‘bad.” It is a non-judging, supportive procedural risk assessment, designed to inform the mediator-arbitrator sufficiently to decide whether to take the case and, if so, how to structure it well and safely for all.

    It is the mediator-arbitrator’s job to find out what is needed to do this, and to get that information in a safe way. If the mediator-arbitrator relies on the lawyers to do the job, then each party will be screened by a different person, making it obvious who disclosed information that caused the arbitrator to decide to terminate the process. This breach of confidentiality can be dangerous to someone in a coercive controlling relationship.

    No one, other than the mediator-arbitrator, should  know who “caused” the process to not proceed.

    This is why the best and safest practice is for the mediator-arbitrator to do his or her own screening; or, alternately, send both clients to the same expert on screening processes, who will meet with them each separately and confidentially,  and ask that person to provide a single confidential report back to the arbitrator with procedural recommendations that do not disclose which party provided what information.

    Neither party should know when the other was screened, or what the results of that person’s screening meeting were. A “Confidential Screening Report“, for example,  should not be made an exhibit at a trial or made public in any way. Such reports are provided to arbitrators in confidence, strictly for the purpose of helping the mediator-arbitrator decide whether to take the case and, if so, how to structure it safely and well for all.

    If a mediator or arbitrator feels that a case is inappropriate for mediation-arbitration because one party is afraid or other power imbalances that cannot be addressed through adaptations in the process, the mediator-arbitrator should simply decline the case as being inappropriate. To disclose any more could put a victim of coercive controlling violence at risk of retaliatory harm.

  3. Design a safe process—If the mediator-arbitrator decides to proceed, he or she should design the process with the safety of the parties in mind. Should they be allowed to wait together? Should lawyers be present at all times? Should they come and leave at different times? Should there be referrals to counseling, anger management or court support workers for one or both, to assist their ability to manage the negotiation or the giving of evidence in the arbitration? Should there be security? Does this impact the decision about whether a reporter should be present? Is there a risk to the mediator-arbitrator’s safety? Should special precautions be taken?These procedural “safety planning” decisions should be made in a non-judgemental way, blaming neither party and seeking to meet the individual needs that both parties will have expressed in their respective screening meetings.

    It is a process that supports them both, blames neither, and seeks to give them a safe and effective mediation-arbitration process, one that is more likely to help them reach a fair settlement and enable them to participate fully and effectively in a safe mediation-arbitration.

  4. Discuss the role of counsel in the process—These steps should be taken whether the parties have lawyers or not. Many assume that lawyers understand the risks faced by their own clients but the facts may not support this assumption. Lawyers often do not ask their own clients essential questions about risk and safety; victims of violence sometimes have been so focused on getting out of the relationship safely that they do not appreciate the risks they face until they are interviewed by a trained professional. Abusive clients often hide behind their stature in the community, their compelling personalities, their cultural or religious identity or their seemingly reasonable, rational behaviours. They are often able to credibly portray their traumatized spouse as “crazy”, “irrational”, “over-protective parent” or even an “alienator”. Lawyers can be the last to know.
  5. 3rd party screening—In those cases where the case is going directly to arbitration, with no mediation component, the Regulation requires the arbitrator to have the screening done by a third party. The best practice is for the arbitrator to require both parties to meet with the same professionally trained “screener” who understands family law, mediation, arbitration, the dynamics of power and control and screening procedures. The arbitrator should trust this person to provide him or her with a reliable sense of the suitability of the case for arbitration. This “screener” should meet both parties, separately and confidentially, and provide the arbitrator, in confidence, with a report that gives the arbitrator enough information to design a safe process and comply with his or her duty of identifying, assessing and managing the power dynamics at the start and throughout the arbitration process.

Relying on the lawyers to screen their own respective clients, or having each party screened by a different third party, although permitted, presents the arbitrator with considerable challenges in ensuring reliable and early risk assessment and maintaining confidentiality.

Screening for power imbalances and domestic violence is an important first step in all family law dispute resolution, and more so in mediation-arbitration than any other process. It is our hope that this discussion will reinforce the value of arbitrators implementing consistent and reliable screening protocols.


Hilary Linton is a Toronto lawyer whose practice is restricted to providing mediation, arbitration, teaching and consulting services. She has used her years of experience to launch her ADR business, Riverdale Mediation, which specializes in family mediation and arbitration, teaching mediation and negotiation theory and skills, and private training and consulting for corporations, government and individuals.

 

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Risks of Lawyers Screening their own Clients under the Arbitration Act Reg.

Those of us working in family law can count on one thing never changing: we are in a danger zone. Read more on the risks of not adequately screening your clients. 

Originally published October 2013 ©

The percentage of separations involving some form of family violence/abuse has remained steady at about 50%. The numbers are higher among cases in court. There are more cases still involving violence plus mental illness, job loss, substance abuse, depression or other significant imbalance of negotiation power that can indicate a safety or other risk.

The first six months post-separation, when the parties are often dealing with lawyers, are the time of highest risk to personal safety.

We know that victims of domestic violence are often too afraid, embarrassed or unaware of the seriousness of the risk they face to disclose it to their lawyers. The higher the incomes and social status, the more obstacles to disclosure.

And we also know that if you only ask questions about violence, you will miss a large number of potentially highly dangerous cases, because the dangerous power imbalances arise in relationships based on coercion and control; violence may be a relatively minor factor.

Cases may not be appropriate for private dispute resolution for many reasons: the parties are too far apart; they are too high conflict; one or both lacks insight; the parties are not governable enough to comply with the rules; one party lives in fear for their life or that of their children; one party is too depressed to participate effectively, etc., and the oversight of the court is required.

What does the Act say?

Under Ontario’s Arbitration Act Regulation, only family arbitrators are required to take training in assessing whether a case is suitable for private ADR, known as screening. Screening is a process of identifying, assessing and managing these forms of power imbalance, family violence and risk. Many family lawyers have not taken this training.

Most of us who provide ADR processes believe that we have the responsibility to provide, to the best of our ability, a safe, effective and appropriately-designed process of negotiation and/or determination. This duty can be implied by the Standards of Practice and Codes of Conduct of our governing organization (eg. the Abuse Policy of the Ontario Association of Family Mediation) or the law (eg. the regulation under Ontario’s Arbitration Act; in British Columbia, s. 8 of the Family Law Act. )

If neither the lawyers nor the mediator/arbitrator knows about a significant power imbalance resulting from coercive controlling violence, for example, the safety of clients or their children could be at risk by something as seemingly benign as sitting together in the waiting room.

Parties may participate in a process for which they are poorly suited, ungovernable, incapable of participating effectively. Victims of violence may, unbeknownst to the mediator-arbitrator or lawyers, be coerced. Subtle threats of retaliation, undetected by anyone but the victim, may prompt unbalanced agreements or irrational behaviours. Victims may be seen as difficult, unpredictable, inconsistent, unreliable, unreasonable, and judged critically because they are terrorized or traumatized… with none of the lawyers nor mediator-arbitrator understanding why.

A mediator in a mediation-arbitration, not having conducted a risk assessment, may confront or “take on” a bullying aggressor, unknowingly exposing a victim or children to retaliatory harm after the proceeding. Mediators and arbitrators may be charmed by the professionalism and reasonableness of an abuser and, unconsciously, align with him or her to the detriment of a victim and/or the children. A depressed or angry client who has risk markers that have not been identified by the mediator or arbitrator, unable to effectively manage his or her emotions, may attack the other party in the parking lot afterwards; or may come back to the mediation room with a knife or gun; may take his or her own life after a meeting with the mediator or arbitrator; or arrange for someone to stalk and beat up the mediator-arbitrator. (Recall the  case in Arizona where a party and his lawyer were murdered in the mediator’s building following a mediation.)

These are some of the reasons why mediators, arbitrators and the parties’ lawyers may want to ensure that effective risk assessment is done before a case is accepted. Otherwise, one runs the risk that, part way through an arbitration, the identification and assessment of risk is made and the arbitration must be aborted. (We routinely advise our arbitration clients that the on-going requirement of screening means there is no guarantee that an arbitration will proceed or be completed.)

Experts will tell you that it can often be difficult to accurately assess power imbalances, and the assessment may not be made correctly right away, if ever.

This is why, under the Regulation, arbitrators must consider the results of the screening not only before the process begins, but also throughout.

What are the critics saying?

There are two common arguments made against screening in family arbitration, aside from the concerns about bias and costs noted in the first post in this series.

First: judges don’t screen so why should we? The answer is easy: we are not judges. We are taking people’s money, in a private process, presumably because we can offer something better.

Second: we are lawyers, not mental health professionals. Again, the answer is easy. Screening is not mental health work; it is risk assessment, a valuable step in contemporary family dispute resolution.

It is important to acknowledge that none of us is perfect. The best screening processes provided by the most experienced screening professionals can still result in parties entering processes to which they are not suited. We do not guarantee safety or accuracy of assessment; we can only conscientiously and consistently implement the best practices we know.


Hilary Linton is a Toronto lawyer whose practice is restricted to providing mediation, arbitration, teaching and consulting services. She has used her years of experience to launch her ADR business, Riverdale Mediation, which specializes in family mediation and arbitration, teaching mediation and negotiation theory and skills, and private training and consulting for corporations, government and individuals.

 

 

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What is mediation?: rantings from a family mediator

illustration of 3 people at a table in mediationThis rant is for those (few remaining) lawyers who discourage their clients from trying mediation with the allegation that mediation is too “touchy-feely.”  Lawyers and mediators can collaborate to help make a balanced and meaningful mediation process for parties in conflict.

Originally published by Hilary Linton-December 2013 ©

As a mediator, it is hard to believe that, in this day and age, some lawyers still have such a patronizing attitude.

I recently had a client who was represented by one such lawyer. After the intake meeting, the client informed me that she intended to change lawyers. She wanted to try mediation but was being discouraged by her lawyer, who used the said obnoxious characterization.

After the client changed counsel, and after our second mediation session ( the lawyers did not attend but were kept informed of progress ) the client announced: ” This doesn’t feel very touchy-feely at all!”

So what is mediation? And why do some lawyers persist in discouraging it?

Mediation is a strategic, focused, fully informed and balanced process of negotiation. It is a ‘safe place to have difficult conversations’, meaning difficult emotions are accepted for what they are. I suppose this may be challenging to lawyers uncomfortable with or unskilled at handling strong emotions.

Mediation is very much a process of strategic negotiation. Hard bargaining is permitted. Taking positions is allowed. Bargaining with the strength of one’s legal rights, and taking responsibility for one’s legal obligations, is encouraged. Full, sworn financial disclosure is a must. Legal advice on process and outcome is always promoted and supported. In fact, we don’t let our clients reach binding settlements here unless their lawyers are present.

Mediation is a process that takes each person’s procedural needs into consideration. Each meeting is designed to make each person feel as safe and comfortable as possible. If that is “touchy-feely”, then we should be doing a lot more of it, because it leads to strong, balanced, voluntary and enduring settlements.

We do not countenance bullying in any form, not by the parties, not by the lawyers, not by the mediator.

If a person cries, or is angry, or is a “difficult person”, mediators try to understand why. When people behave badly, we try to find the reasonable reasons for the unreasonable behaviour– not so that we can have a group hug afterward, but because deeper analysis of what drives the conflict leads to better agreements.

What does a good mediator look like?

Good mediators do a lot of research, reading, reflection and self-analysis. I litigated for 15 years and know that mediators work at least as hard as lawyers, sometimes harder, because we have two clients to satisfy. We work with two people who are vulnerable, damaged and afraid of their future. Whether they have lawyers or not, almost all clients have these fears. Good mediators definitely try to empower both parties to negotiate well with confidence, with the support they need, with full knowledge of the strengths and weaknesses of their settlement alternatives, and with full information and advice.

We know as well that clients who are living with abuse and violence are at the greatest risk of being harmed when they are separating– whether they have lawyers or not. Most family mediators are trained to identify, assess and manage risk far better than most family lawyers are. This knowledge and experience, which supports both parties because often they are both “victims” of some kind, helps us provide negotiation processes that can feel better and therefore work better for both parties.

It is hard to understand why all family lawyers are not almost always recommending mediation. Any client— whether in court or not– can access up to 10 hours of subsidized mediation (providing the case is assessed as appropriate by the mediator.) The rates are ridiculously low— a person earning $60,000 a year with 2 kids will pay $82 an hour through mediate393 inc. Yes, the mediators are subsidizing the lawyers!!

I recently had a half day mediation under the mediate393 program. Both lawyers attended. The clients between them paid $130 an hour for four hours of mediation……$260 each for a half day mediation with a senior family lawyer-mediator. The issues were complex: income determination for self-employed individuals, spousal support quantum, and duration, proper treatment of an inheritance and family trust income, plus some challenging parenting issues. The parties resolved almost everything because their lawyers were prepared with financial disclosure, the parties had attended a previous mediation without counsel and trusted the process, the mediator and each other, and they were ready to settle.

So no, we don’t sit in a circle, hold hands and sing kumbayah. And yes, we do care deeply about our clients and the quality of the process we give them. Fortunately, the majority of family lawyers get it and use mediation to their client’s advantage as often as they can.


Hilary Linton is a Toronto lawyer whose practice is restricted to providing mediation, arbitration, teaching and consulting services.  She has used her years of experience to launch her ADR business, Riverdale Mediation, which specializes in family mediation and arbitration, teaching mediation and negotiation theory and skills, and private training and consulting for corporations, government and individuals.

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Coach your Client to be a Better Negotiator: Tips for Negotiating Effectively

Two young boys playing in the grass their swim trunks. One on the left is holding a bucket, the boy on the right is petting a grey puppy.ADR professionals are, by definition, skilled negotiators. What attitudes, skills, and strategies do we already have to help coach our clients to achieve the best possible outcomes?


10 Coaching Tips for Clients

 

1. Our clients all come to us from a place of fear. They fear loss: of what they want or need, of a relationship, of control, or of bargaining power. We know from research that people are more likely to focus on what they have to lose in a negotiation than what they have to gain.

They also may fear reprisal from the other party or others; the impact that an emotional discussion might have on them or the other party; or the process itself, as many clients have never engaged in facilitated bargaining before.

2. People who are afraid are likely to act defensively, unpredictably, positionally and perhaps uncooperatively.

3. Our job is to create a safe place for them to have difficult conversations so that they can overcome fear and the behaviours that it causes. Instead, clients can focus on powerful negotiation.

4. Our best tools for doing this? Genuine curiosity, non-judging observation and questioning, and a keen self-awareness of our own responses to conflict and personal biases.

5. How can you structure your process in a way that allows you to be curious, non-judging and aware? For example, have clients complete pre-process confidential intake forms so you have some information from them, about them, before you meet them. Give them time at the pre-processing stage, preferably in confidential one-on-one meetings, to tell you about themselves, their concerns, their needs, their fears.

6. Learn the skill of conflict analysis and use all the available tools to identify the sources of conflict. Use these tools to help the clients analyze their own conflicts too.

7. Help clients focus on creative feelings to generate a positive, forward-thinking and optimistic sense of future possibilities.

8. Understand the research on basic human emotional needs, and design your process to enable clients to have those needs met, and to empower them to meet these needs in the other.

9. Cultivate an atmosphere of respect. Encourage clients to understand that basic human respect can be the least expensive, and most effective concession they can make in a negotiation.

10. Keep clients focused on making and responding to concrete proposals to avoid getting mired in blame and the past. “Who can do what today to move this matter forward?” is the question you want to ask them when they get stuck.

With these skills, you will find your clients better equipped for the bargaining process.

Good luck!

 

Originally posted by Hilary Linton 2015 ©


Hilary Linton is a Toronto lawyer whose practice is restricted to providing mediation, arbitration, teaching and consulting services.  She has used her years of experience to launch her ADR business, Riverdale Mediation, which specializes in family mediation and arbitration, teaching mediation and negotiation theory and skills, and private training and consulting for corporations, government and individuals.

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