What is causing “the perceived injurious experience”?

The Circle of Conflict

Fig. 1

What is causing the “the perceived injurious” experience? What drives conflict? How does each party in conflict get their needs met? Read this excerpt from our Introduction to Family Law course for more insights.

  • Relationship-based conflicts: fuelled by misperceptions, stereotypes, negative conduct, ineffective communication, historical experiences, etc.
  • Value-based conflicts: caused by different ways of living or upbringing, different cultures, religions, or ideologies, resulting in different criteria for evaluating and responding to events.
  • Data or information-based conflicts: caused by an absence of information, different access to it or unequal distribution of it; and/or different evaluations or interpretations of it.
  • Structural or resource-based conflicts: resulting from different access to, distribution of or control over resources such as time or money, geographical constraints, physical differences or organizational structures.
  • Externally-driven conflicts: result from caused by factors beyond anyone’s control, not necessarily acknowledged or voiced.
  • Interest-focused conflicts: driven by goals, fears, wants, hopes that are either different but compatible or directly in conflict either because they are identical or irreconcilable.

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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Identifying and Assessing Family Violence and Power Dynamics


What are the fundamental principles of ADR? What are some basic screening concepts I should know before starting mediation and/or arbitration? What are mediators looking for when assessing for risk?  Learn measures mediators use to balance power and keep parties and children safe.

Alternative dispute resolution (ADR) functions with three fundamental principles:

  • ADR is a voluntary process
  • ADR is a fair process of self-determination and/or adjudication
  • ADR will do no harm

Before engaging in any ADR process, the mediator should screen both parties to assess for risks of domestic violence and signs of power imbalances. There are some basic concepts that mediators should keep in mind while screening each client. These key concepts include:

  • Conduct confidential supportive interviews with each party before a process is chosen. Intake forms are crucial.
  • Ask each person about power in the relationship, including any violence they have experienced. DO NOT ask what a party did to the other.
  • Not a fact-finding; intake is about subjective perception.
  • Ask yourself as the mediator: Can each person fully and safely participate in this process? What do they need to do that?
  • Ask questions to elicit information that is known to predict risk

Each party’s answers, combined with the screener’s instincts, observations, experience and skill will lead to a decision about whether the process is or can be made voluntary, self-determinative and will do no harm to parties or children.

What should professionals be looking for?

Family law professionals should be keenly aware of the many forms domestic abuse and violence can take. Screening tools like  MASIC and DV-RAP are designed to predict the possibility of one party causing physical harm to the other. In a negotiation process, once imbalances and risks are identified, measures can be taken to design an ADR process best suited to the dispute. If there are major imbalances at play, here are some helpful strategies to manage them:

  • Caucus, increase the structure & reinforce rules: take breaks, slow the pace of negotiations, use objective information in decision making.
  • shuttle negotiation, co-mediation, split day mediation, long distance mediation via Skype
  • separate arrival and departure times, separate waiting areas, use of supports/advocates, educate office staff
  • require lawyers to be present
  • coach the weaker party for how the process will go; confront stronger party about the impact of too much negotiation power.
  • require a restraining order or counselling

If after screening it is determined that the proposed dispute resolution process will not be effective, fair, balanced and safe (emotionally and physically) for parties and children, the process should not go forward. Safe termination is recommended and parties should be referred to a more suitable process to settle their dispute.






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What We Learned Training Mediators in Barbados

from www.barbadoslawcourts.gov.bbOur team had a wonderful experience working with the mediators of the Barbados Supreme Court.

The training was funded by the
IMPACT Justice Project, an initiative of the Canadian government that is designed to enhance access to justice at all levels—from community to court— throughout the CARICOM countries.

(Click here for a link to local media coverage of our training in Barbados).

This training followed a week of training with The Royal Barbados Police Force, also as part of the IMPACT Justice project. (See our prior blogs on the workshops we have previously done with police officers and community leaders throughout the Caribbean.)

Sir Marston Gibson, the Chief Justice of the Barbados Supreme Court, explained the importance of courts in Barbados making high-quality mediation accessible. Courts there, as here, are backlogged with cases that could be resolved more effectively and efficiently out of court. The culture of mediation is relatively new to Barbados in both civil and family disputes.

The pilot project that he has established there encourages judges to refer all appropriate civil and family cases to mediation.  As in many jurisdictions, the project recognizes that family mediation is probably not appropriate in situations of coercive and controlling domestic violence. But all other cases are considered appropriate for the initial three hours of mediation, which is paid for by the parties at established rates.

All of the mediators in our group were already trained and many were experienced mediators.

We learned that mediators in Barbados face the same challenges as the rest of us; resistance from the legal community based on perceptions that mediation presents competition to lawyers; general lack of awareness among litigants about the merits of mediation; lack of resources to pay mediators appropriately and lack of funds on the part of litigants.

Our training focused on teaching aspects of mediation that the students had not learned, including how to analyze the underlying emotions and relationships driving the conflict; understanding how to work effectively with ‘high conflict’ people; strategies for empowering parties to negotiate more effectively, and tools for making strategic decisions about when to caucus with the parties. Our use of the concept of a “perceived injurious experience” as the starting point for understanding how conflicts escalate into disputes and our inclusion of mental health professionals on our training team was well received by the participants.

Training in another jurisdiction presents many opportunities for mutual learning, particularly in this case where our “students” had much to teach us about the culture, history and dynamics that are unique to dispute resolution in Barbados.

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Negotiation with Your Teen?

graffiti artist painting a muralAt a past workshop I did with fellow parents of teenagers, I was asked whether it is appropriate to ever negotiate with a teenager. It is a good question. Especially if we consider our role to be that of boundary-setter.

originally posted March 2010

How can we negotiate without losing authority?

I think one of the hardest things for parents of teens to accept is that they cannot control their children at this age. Not their behaviour. Not their language. Not their appearance. Not their tendency to lie. Not their decisions to drink, stay out past curfew, smoke weed or paint graffiti.

Some parents find this alarming; and those are the very parents who experience the most conflict with their children.

Things to consider when negotiating with your teen

In one of the books I have read, parents are advised to “never negotiate with a terrorist”. I could not disagree more. Teens who act like terrorists do so for a reason. The conflict we experience with them is a good thing; it shows that they need and want to remain engaged with us. If they did not care, they would just stop fighting. They need us, and so they maintain a connection through conflict. They are defining for themselves the boundaries of a healthy parent-child relationship, and that means they will at times act like terrorists.

So how do you negotiate with someone like that? First, by accepting and loving them, unconditionally, for who and what they are. By standing firm about your expectations of them, and letting them know that you will not accept a violation of the rules. By treating them like the responsible person you expect them to be. By being clear about the consequences of any breach of the rules. (You will need to decide for yourself whether punishment is an effective deterrent.) By being a thoughtful, calm, patient, non-judging and empathetic listener. And by being willing to flex when, after hearing them, they make some sense and help you realize that perhaps the rule should be bent or changed.

Negotiation with teens is not that much different from negotiation with any other difficult person; it just takes a willingness on the part of the parent to understand the needs of the person with whom they are negotiating. And teens have a very unique set of needs that are, thankfully, temporary.

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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From Jennifer Lawrence to Aceh, Indonesia

The annual United Nations Commission on the Status of Women is an inspiring event that, in a perfect world, every single woman should attend.

Attending as a Canadian mediator and trainer, I was struck by how much is happening in the rest of the world that is unfamiliar to me in my privileged “first” world life.

It is an eye-opening, multi-national dialogue among women seeking to make their world and our world a better place.

I spoke at a “parallel” event to the actual Commission events. Sponsored by Mediators Beyond Borders International, our topic was “Peacebuilding Beyond 2017: Women as Agents of Change”.

Mediators Beyond Borders empowers women around the world including through an innovative dispute resolution training program. As moderator and MBBI CEO Prabha Sankaranarayan said in her opening, imagine a world where 1 out of every 3 women was a trained mediator.

Prabha noted that we live in a time of record, forced displacements. One in seven people alive today has been displaced— a shocking fact. Within the context of the impacts of climate change- which threatens lives and communities around the world- and the fact that most contemporary conflict is intro-national— it is critical to develop capacity for dispute resolution from top down and from bottom up.
“Peace agreements have a better chance of success when women in society are engaged in peace building”, she said.

Other fantastic speakers were Vicki Isler, whose extensive experience in environmental and international law and policy brought a keen focus to the underlying theme of all events at the UN’s CSW: women and sustainable development.

Raihal Fajri
, a graduate of the MBBI training institute program, spoke of her work in Aceh, an Indonesian province that has faced conflict for more than 30 years. Her talk reminded us all how long change takes—— and how persistent we must be in our efforts to bring about change.

My talk focused on the unique challenges facing women negotiators, and how we can turn those challenges into strengths. I spoke of Jennifer Lawrence’s poignant reminder we women can be inclined to jeopardize our own success out of fear of “not being liked”, and that, in her case, that led to negotiating for less money than her male counterparts, who apparently were not held back in asking for appropriate remuneration. This story resonates with women around the world.

At the same time, we have qualities that can lead to more successful and enduring outcomes—including a comfort with silence, inclusive dialogue, listening to the needs of others, and tolerance of high emotions. We need to perceive our bargaining power as being equivalent to that of men— and then we will be able to achieve true win-win solutions that endure and build better relationships.

It was a great honour for me to be included. My good friend and colleague, a great mediator herself, Mina Vaish of York Mediation, was the co-chair of the event and her commitment to the event and MBBI made it a standing-room only event.

And I had the pleasure of meeting other Canadian women who are committed to MBBI’s mission: Tricia Morris, Ruth Sirman and Suzanne Sherkin.

Thank you MBBI for this great opportunity. I will definitely be joining your organization and helping out in the future.

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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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