Jirga Council Dispute Resolution

Jirga - V1The process of mediation/arbitration can be flexible and there are many other forms of the process such as the Peace Circles, and Jirga Councils.  In a country as diverse as Canada, it is important for legal professionals to expose themselves to alternate methods of dispute resolution around the world.  It will help us be creative and flexible with our practices, and in the end ensure the client is dealt with in manner they are comfortable with.

Jirga councils replace the function of courts in rural and tribal areas of Afghanistan and Pakistan.  The Jirga is usually made of community elders that are respected and have some legal understanding of matters. They include religious leaders, local notables, and mediation specialist. The Jirga hears from the two sides along with any witnesses and other parties involved in the matter.  The council initially acts as Mediators but they have a lot of power, and if things are not progressing they can start to act as Arbitrators.  The Jirga’s conclusion is usually binding with fulfillment tied to each party’s honor and respect in the community.

Benefits of the method include:

  • Process and decision reasoning is often quite transparent
  • Focus on reconciliation and community relationships
  • Economically, culturally and religiously sensitive to small remote communities
  • Community decision ensures community enforcement where other authority is not present
  • Facilitates community building

Challenges:

  • Lack of remuneration in some cases for council members may lead to influence from other factors
  • Managing influence of wealth and power of one party is difficult
  • Male dominated council often puts women in weaker position. This has led to creation of Sisters’ Jirga in some areas.
  • Lack of trained facilitators can sometimes result in inhumane sentences awarded to people.
  • Lack of an appeal process limits people from seeking another opinion on the matter or when they feel the process was not fair.  However, parties sometimes do abandon the decision at some cost.

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Saboor1Saboor Khan, P.Eng, MBA, is currently a part-time student at the Western University Juris Doctor program, and works as Supervisor of Product Development at StarTech.com.  He takes great interest in the diverse means of legal conflict resolution that exist among different communities in Canada and around the world.

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Thank you Family Mediation Canada!

I was honoured to be asked to provide two days of advanced family mediation training for Family Mediation Canada (FMC) in Vancouver this month.

Hilary & Betty Ife

Hilary with Betty Ife, renowned Vancouver family mediator

It was a particular pleasure to do this on the 30th anniversary of FMC’s creation by the Department of Justice in Ottawa.

Howard Irving, one of the original FMC directors, spoke about the history behind FMC and brought with him some of the very first editions of RESOLVE, the FMC newsletter.

I was fortunate to train many senior and experienced family mediators from across the country and we enjoyed learning from one another very much.

Thank you FMC!

 

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FMC LogoFor more information on FMC (Family Mediation Canada), please visit: www.fmc.ca

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Pecuniary Power Imbalances and Choosing a Mediator

imbalancePower imbalances are an important consideration during mediation, but they do not start when mediation begins. Rather power imbalances are pre-existing factors that are at work leading up to the process.

In his paper Exploring the Concept of Power in Mediation: Mediators’ Sources of Power and Influence Tactics Shapira discusses coercive power, which is defined as “the ability to cause what the other party would consider a negative outcome” (Shapira, 2005; p 542). He notes that this power comes from “control over resources such as money, physical strength, and high social status” (ibid.). While coercive power is certainly evident during the mediation process, it plays an important role before the mediation begins. This is because the choice of mediator can be influenced by power imbalances, which can propagate that imbalance throughout the mediation process. I will discuss two ways that power imbalances can affect mediator choices through the pecuniary pressures on the parties choosing the mediator.

In mediation, each party typically pays the mediator equally. At first glance, this seems to be an equal process. And to some extent it is equal, insofar as it prevents one party from hiring and thus indirectly influencing the mediator.  However a 50/50 split of costs can disadvantage certain parties by indirectly forcing them to disclose the amount of money they have. For example, imagine a mediation involving a matter where each side wants to keep their financial assets hidden from the other. If Party A is rich and suggests an expensive mediator that the poorer Party B cannot afford, Party B to some extent shows its hand by rejecting that mediator. This gives Party A coercive power over Party B during the actual mediation, as Part A has knowledge of Party B’s general financial position.

The second way pecuniary power imbalances influence mediator choice is through the length of the mediation. Lets say that Party A knows that they have more money than Party B, who has enough money to afford a mediator but only for a certain amount of time. This will necessarily push party B to want to reach an agreement quickly. The more expensive the mediator chosen, the more pressure is put on the poorer party to settle quickly. Again, this puts party A in a position of power over Party B, as Party B will be more likely to concede on issues in order to save time and money. Korobkin in Bargaining Power as Threat of Impasse calls this sort of power “patience power”, as the party that can wait longer to reach a deal is less likely to resort to their second-best option.

In conclusion, pecuniary coercive power plays a role in mediation before mediation begins through the choice of mediator, and this power has the potential to reverberate through the mediation process.

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David Thompson Isaac Law (640x425)

David Thompson Isaac is a law student at Western University. He received his MA in Philosophy from the University of Waterloo, where he studied the interaction of science and Indigenous peoples’ understandings. David is interested in the way power influences interactions between groups. He can be found on twitter at @DIsaac8.

 

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How to Get Along: A Seven-Week Conflict Resolution Workshop for Couples

Brook Thorndycraft (intern with Riverdale Mediation Ltd.)

Erase conflictA few months ago, I took a break from work to chat over coffee with my friend Ali, a psychotherapist and couples counselor.   As we talked about a conflict resolution workshop I was designing, Ali mentioned how great it would be if some of her couples could do an intensive conflict resolution workshop to help them develop the skills to get past some of the ways they get stuck.

Now, several months later, we are excited to be developing a seven-week conflict resolution workshop for couples!  We are offering it for the first time on Wednesday evenings starting January 20th, 2016, in downtown Toronto.

We have designed the workshop to teach skills that are useful for minor disagreements as well as for more serious conflict.  Our philosophy is that all relationships have conflict or misunderstanding at some point, and the more we develop conflict resolution and communication skills when things are feeling good, the easier it is to use them when there are bumps in the road.  In fact, in an intimate relationship, small conflicts are almost always about more than what they seem to be about on the surface.  This means that the best time to take a course like this is when the conflict level is still low, but high enough that it feels uncomfortable.

That being said, we also welcome couples who are currently experiencing a high degree of conflict, including those who are currently in couples counselling.  We see this as a great supplement to therapy.  The workshop is an opportunity for people to develop an understanding of what drives relationship conflict, and to develop the skills to resolve it.  We will provide a supportive environment that encourages them to step out of the details (e.g. “Why don’t you ever do the laundry??”), and see the bigger picture.  A supportive space that focuses on group learning and skills building can offer new ways of looking at a situation.  The group setting of the workshop will encourage people to focus on the skills to resolve conflict, rather than the details of who did what to whom.

For more information, please contact us at getalongworkshop@gmail.com

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2015 - Brook T.Brook Thorndycraft, M.A. B.Ed., is a current intern with Riverdale Mediation Ltd., and has been working in community work and education for the last 12 years. She currently works as a Professor in the Community Worker Program at George Brown College, and as a Counselor with Toronto Public Health. She also works in private practice as a Conflict Resolution Consultant with individuals, families, and non-profit organizations. She encourages people to understand conflict as an opportunity for change and growth, and supports them to develop their emotional capacity and practical skills in order to deal with conflict more successfully. She provides skills building workshops, organizational development and conflict resolution, and one-on-one coaching. Brook has training and experience in popular education methods, restorative justice, and mediation, and brings her community-based experience into her conflict resolution work.

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Family Dispute Resolution Brings Changing Needs in the Profession

FDRIO logo (symbol)The family dispute resolution (FDR) field has grown exponentially over the past ten years. This has been in response to the changes occurring in family law generally: more unrepresented people, backlogs in some courts, frustration with a non-specialist family law bench, lawyers becoming disenchanted with the traditional adversarial approaches, increased awareness of the prevalence of family violence, growth in communities where English is not a first language, cultural differences demanding different approaches, ever-growing access to information on the internet, and more.

As the world around us has changed, so too has the way FDR services are delivered.

The demand for free and subsidized family mediation and information services has grown with the government’s increased commitment to funding. Legal Aid has adapted its services to fund legal advice for those in mediation or negotiating agreements. The courts could not function without Information and Referral Coordinators in the Family Law Information Centres offering triage, providing referrals, assisting with forms and helping parties understand their FDR options. The Mandatory Information Programs receive high satisfaction ratings from those who attend them because the need for information and support has never been greater.

Collaborative practice is now the process of choice for most people seeking to work with family lawyers. The growth of private FDR services like mediation-arbitration and parenting coordination, processes that hardly existed ten years ago, demonstrates the demand for new ways to respond to new realities. Sadly, our family court support workers are in great demand, evidencing a real need to find dispute resolution processes that actually meet the needs of victims of abuse and violence and their children. In private practice, an entirely new area of expertise, screening for power imbalances and family violence, has grown up. FDR professionals are increasingly aware that they and their clients work in a danger zone, and that safety of clients and professionals must be a priority.

As the field has matured and become more diverse, the need for a single resource for all of us has become apparent.

FDR professionals no longer offer single services; most of us offer some combination of mediation, collaborative practice, arbitration, parenting coordination, counselling, coaching, consulting-triage and/ or screening services. Whether you are a lawyer or a mental health or other professional, you no longer assume that the client at your door is necessarily at the right place. We offer many services because our first job is to assess which process might be best for a particular family… and we all need to understand how all the other processes work in order to do that job well.

As these new processes have evolved, so too has the need for better and more transparent standards of training, practice, and certification. Many people do not understand the difference between med-arb, mediation and parenting coordination. There are no rules or Standards of Practice for many of these services.

Hence, the creation of the Family Dispute Resolution Institute of Ontario (FDRIO)

A not-for-profit, FDRIO was conceived by OBA members Tom Dart, Richard Shields Barb Landau and me over a year ago. We believed that FDR is entering a “golden age” and that the time was ripe for a new, multi-disciplinary professional organization that promoted and supported all forms of FDR. The idea attracted a strong, diverse group of FDR professionals and before long the idea took off.

We now have a growing membership consisting of family lawyers, mediators, arbitrators, collaborative professionals, coaches, financial professionals, child specialists, parenting coordinators, family violence specialists, among many others. Our board consists of mental health professionals, financial specialists, coaches, mediators, arbitrators and collaborative professionals.

Our mission is to provide a place for all FDR professionals to share expertise, establish harmonized standards of practice, and create compatible credentialing processes and certifications. We seek to provide a strong, progressive and credible voice for the FDR field along with transparent, quality standards of practice for every FDR process where ever possible. We are working with existing FDR organizations to find efficiencies and areas of collaboration.

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Ontario’s Mediation & Information Services for Separating Couples a Success

Tall Trees (640x480) (2)Recent statistics show that the most frequent users of Ontario’s free Family Law Information Centres are lawyers, and that the public who uses these free information services and free or subsidized information and mediation services are highly satisfied with them.

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In Ontario, everyone who starts or receives a family court application must attend a MIP. (Mandatory Information Program).

Statistics from the Ministry of the Attorney General show that, even though the program is mandatory, people appreciate it.

From April 2014-March 2015, 82% of respondents said they were satisfied with the MIP.

People who use the Family Law Information Centres (FLICs) are also highly satisfied with the free services they obtain there, with a 76.5% satisfaction rate.

And the free and subsidized mediation services province-wide received a 93% satisfaction rate!

The data shows that the majority of people using the government funded FLICs seek information (about 50%) and help with forms. (about 30%). The main issues people ask about are child custody, access and support.

About 35% of those using the FLIC resources are applicants; 22% are respondents and 43% are family lawyers!

The numbers are staggering: province wide- about 78,000 people use a FLIC every month. In Toronto alone, at mediate393’s three FLIC locations (393 University Ave; 47 Sheppard Ave. and 311 Jarvis St.) there are on average over $13,000 users every month.

In Toronto, this program is delivered by the Family Information and Mediation Service mediate393 inc. For more information about the family information and mediation service providers across Ontario visit the MAG website.

For more information about mediate393 inc. click here.

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