Without Borders : FDRIO UnConference

FDR Without Borders- Family Dispute Resolution UnConference May 4, 2016

On May 4, 2016, FDRIO is hosting the first-ever “Unconference” in dispute resolution, taking place at The Centre for Social Innovation on Spadina Avenue in Toronto.

The idea was borrowed from the tech industry, where unconferences are used to generate creative thinking and build networks.

What is exciting about unconferences is that they are loosely structured, allowing for the
informal exchange of information and ideas between participants, rather than following a conventionally structured program of events.

May 4 will begin with those present proposing ideas. We then vote topics and the
unconference begins. The theme, “FDR Without Borders”, welcomes a wide range of speakers and participants.

To get started, FDRIO has lined up a couple of speakers you will want to hear, including Les Jacobs, Professor and Director of the Institute for Social Research at York University and Senior Research Fellow of the Canadian Forum on Civil Justice.

If you have an idea, presentation, topic, or innovation to present (or debate!) that is related to best practices in FDR, bring them with you. We want you and need you to be there!

The only drawback is that space is very limited – to the first 90 registrants. Our last conference sold out and we expect this one will too.

Admission is only $75 – $25 for students.

You’ll have an opportunity to visit our display area, where thinkers, innovators, authors, artists and colleagues will promote their ideas and products to help you in your work.

For more information and to register, visit the FDRIO website.

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Mediate Like a Roman

Canoe - 2What does a mediator do? In helping to understand what a mediator is & what a mediator does I have gone to Latin sources. I refer the reader to the Latin word interpres (which came to me on my phone today as my Latin Word of the Day). This word means a middleman, “an agent between two parties, mediator, broker, factor, negotiator” in English. In looking at various Latin sources an interpres includes “messenger of the gods” and “goddess of marriage”, a “soothsayer”, “a translator” and of course the obvious meaning of interpres “an interpreter”.

I suggest that the Latin word interpres accurately describes what a mediator is and does. It’s trite that many disputes have their roots in lack of communication or misunderstandings. The mediator’s role is to ensure that each party not only hears the other but understands the other. By being empathetic and objective a mediator is much more likely to accurately hear what a party is really saying. The mediator, unlike a party to a dispute, comes to the table with a lack of “involvement” or “history” & unlike a party to a dispute is more likely to accurately filter out background noise & hear what is really being said. As an interpres the mediator’s role is to act as a translator to the other party by ensuring the latter has accurately heard the former through the mechanism of reframing.

The interpres by acting as “the messenger of the gods” has the job of helping the parties recognize their interests in the particular dispute. By acting as an interpreter the mediator is there to assist the parties to arrive at their own solution to the dispute in such a way that both parties interests are met.

Some mediators, like the writer, are more directive and not only help the parties recognize their interests but suggests a solution that meet those interests. Whatever style a mediator adopts the mediator is acting as an interpres which leads me to believe that mediation is a very old profession known to the Romans which is not surprising when one considers that most Western legal systems have their roots in Roman Law.


 

Joel Skapinker, B.A., LL.B., LL.M. Barrister & Solicitor, Accr. Family Mediator

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Gender in Negotiation

In light of International Women’s Day being this week, here is an article by Deborah Kolb reviewing the role gender plays in negotiation.

 

 


After many years of indifference, the study of gender is now an important area of scholarship in negotiation. At the same time as interest has grown, so too have the perspectives on gender and negotiation evolved. Elsewhere, we have suggested that there are three major ways to look at gender.[l] The first, and by far the most common, is to treat gender as differences between men and women. A second approach, an interpretive one, treats gender as being socially constructed. And the third approach, with its roots in postmodern thinking, uses a lens of gender to look at how theory and practice render invisible key elements of the social enactment of negotiation. Our purpose in this paper is to review these different perspectives, but to focus more directly on research based on the interpretive and postmodern approaches. Because most of the gender research occurs in the laboratory, the focus has been primarily on individuals in interaction. To extend our understanding of gender and negotiations, we need to look more closely at organizations as a primary site for the construction of gender identities.[2] In this paper, we will trace the different ways gender has been studied in negotiation and show how a focus on organizations as gendered entities is critical to understanding about the ways gender matters in negotiation.

Gender Equals Difference

As Rubin and Brown noted in 1976, sex is one of the most easily measured variables, so it is not surprising that the question, “Do men and women negotiate differently?” is frequently asked.[3] Recent research suggests that women don’t ask, often let opportunities for negotiation slip by, typically set low goals, concede easily, and let their emotions show, among other factors. [4] Although individual studies on sex differences may produce significant findings, cumulative results across studies are often contradictory. Meta-analyses of these studies have shown only small statistically significant differences and on just two dimensions: women tend to be more cooperative than men and tend to receive lower outcomes when money is at issue.[5]

To ask a question about differences between men and women assumes that gender is a stable attribute of individuals. Accounting for these differences requires that there is some basis in biology, socialization, role theory, or entitlements to explain why they exist. [6] The most common argument posits that women emphasize nurturance and support in their relationships because of their social development and the mothering roles they often play (or are expected to play). In contrast, according to this argument, men are groomed for separation and individualism, behaviors presumably more suited to the demands of negotiation.[7]Thus women are more likely to treat a negotiation as an event in a long-term relationship, one linked to a larger social context and concerned with fairness and sensitivity to others, while men see it as a one-time event with no direct consequences for future interactions.[8] Without directly testing for the origins of gender differences, these explanations become tautological and are often marshaled after the fact to account for women’s deficiencies when they negotiate. For example, when men outperform women in salary negotiations, the explanations given for these differences are “the problems” that women have in negotiating.[9]

In a field that prides itself on pragmatism, the advice that results from this stream of research is problematic. First, the findings boil down to two points— either women are the same as men or they are different from them (i.e., deficient). So the advice is directed only to women; namely, how can women overcome their deficiencies and better equip themselves to negotiate or how can they strengthen their instrumental orientation to the task. [10] No similar advice exists for men. Second, the advice from this work may itself be gendered and subject to gender stereotypes that people use to judge behavior.[11] Thus, to tell a woman to act in a more self-interested, assertive, or instrumental way assumes that these behaviors are neutral in the sense that men and women can use them with the same effects and same consequences. However, these behaviors when enacted by a woman are likely to be seen differently than they are when men employ them. Assertiveness, self-orientation, and an instrumental focus may backfire against women. This type of asymmetry has created double binds for women in other research arenas. [12] In the leadership field, for example, it has been shown that beliefs about effective leaders, which tend to reflect masculine, agentic qualities, conflict with beliefs about femininity. A double bind test for a woman leader is the question can she be a leader and a woman too? If she acts decisively and pushes for what she needs—behaviors we might expect from leaders—she may be seen as too pushy. But if she conforms to feminine expectations and consults widely, she is seen as indecisive. [13]

Others value difference—articulating a woman’s point of view that brings unnoticed benefits to the negotiation process and the agreements that it produces. From this perspective, a focus on relationships, the skills of empathy, and the ability to manage conflict and competition simultaneously are thought (although not explicitly tested) to be advantageous in negotiations. [14] However, when researchers have tested to see if a “feminine concern” for others is correlated with joint gains, the findings are not encouraging.[15] It is not enough to care about the other party. For women to achieve high joint gains, in this case profit, they need to be primed to pay more attention to their own needs. Further, appreciating the feminine skills that negotiators bring to the table ignores the ways that these skills are not equally valued when compared with the more “masculine” skills basic to claiming behavior in distributive negotiations.

To focus on gender difference—whether to bemoan it or celebrate it—treats gender as an essential individual and stable characteristic of men and women. First, the approach treats men and women as internally homogenous categories, yet we know there is considerable variability within the sexes. Second, it fails to recognize that gender is hierarchically arrayed in society, and so to focus on difference is to accept a false symmetry in which the masculine emerges as the standard and the woman as the other.[16] In the negotiation field, the research and the pragmatic advice derived from the gender difference perspective reinforces masculine attributes; that is, it inadvertently places a premium on enlightened self-interest, analytic rationality, objectivity, and instrumentality.[17] In contrast, those attributes typically labeled as feminine—empathy, concern for relationships, subjectivity, and emotional expressiveness—remain less valued. As Joan Scott points out, what may start out as an explanation of the experiences that lead to differences between women and men, often translates into “women are the way they are because they are women.” [18] When we focus on the question—whether men and women negotiate differently—it is the women that emerge as in deficit and in need of “fixing.

Interpretive Perspectives on Gender

Interpretive perspectives shift the focus away from essentialist characteristics of men and women to the negotiation interaction itself. From this perspective, gender is continually socially constructed, produced and reproduced. In other words, we “do gender” rather than have a gender. [19] “Doing gender” means that in the process of enacting a social practice (such as negotiation), individuals are constantly engaged in constructing identities and social situations in gendered ways. In this way, gender is not an individual characteristic, but both a means and an outcome of the ways parties socially construct negotiation. Interpretive perspectives emphasize the fluidity, flexibility, and variability of gender-related behaviors. The challenge is to understand how parties enact negotiation in a particularly gendered way. If the research question from the first perspective is, “Do men and women negotiate differently?” the interactive perspective raises a more useful question, “When and under what conditions does gender shape the course of interactions?[20]. Three levels of analysis comprise these conditions—the individual, the interactional and the situational/organizational levels.

Continue Reading Gender in Negotiation

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Reflections on Teaching ADR in Grenada – Part 2

Photo Collage - 160304 - GrenadaOur colleagues Nicole Stewart Kamanga and Liz Waisberg are on our teaching team in Grenada this week. They, along with Riverdale associate Elizabeth Hyde and mediate393 mediator Joel Skapinker are delivering training to 35 community leaders as part of the IMPACT Justice Project. See our previous blog for more information about this exciting project. 

_______________

Another perfect weather day!

As our Group’s skills continue to build, today they worked on a complex multi-party land use dispute between First Nations, vacationers, campgrounders and the government.

Their enthusiasm was contagious as everyone got into character.  They observed directive and facilitative styles as each coach took a turn mediating the dispute.  By the end of the exercise, they had resolved several of the issues.   The Group also worked on drafting skills and identifying the Do’s and Don’ts of effective MOU and Report writing. They practiced these skills when they drafted an Agreement based on the land dispute resolutions they generated earlier in the day.

Once the day’s work was done, we toured the central part of the island. Our guide drove us up winding roads into the mountains, pointing out local foods and plants and providing us with some background information about the island.  We enjoyed this opportunity to learn more about the beautiful island of Grenada.

We have learned from our students that it can take 5 years to obtain a court date and that the local legal aid centre has one lawyer and one social worker. They have told us that mediation will be a welcome and highly effective means of resolving disputes here.

….

We had the opportunity to have a short tour of the island and see some of the communities outside of St Georges. The island is extremely hilly and most of the houses are built into the mountains.

It was important to see how people in Grenada live because their issues are quite different from North American issues. Land disputes are common in Grenada.

The participants in the course are extremely engaged and want to use their new skills to try to resolve issues because the courts are so back logged it can take 5 years for a case to be heard. They have discussed how the course content will help them to navigate issues of conflict and try to resolve disputes.

_____________________________________

NicoleNicole Stewart Kamanga
LL.B., LL.M., Acc. FM.
Nicole is a lawyer and an Accredited Family Mediator. Prior to entering her legal career, Nicole worked as a Children’s Advocate in a women’s shelter, providing individual and group counseling to the children and their mothers.

 

 

Liz SWCG PicLiz Waisberg 
MSW, RSW, AccFM
Liz is a registered therapist and accredited family mediator with a Master of Social Work degree from the University of Toronto. She also holds a Bachelor of Social Work degree from Ryerson University. Liz has extensive clinical experience working in hospital-based settings since 2001. She has worked as a clinical social worker in the Emergency Department and in Mental Health settings working with children, adults and families. Liz has also worked in the mental health field providing support and crisis intervention to individuals and families struggling with issues such as depression, anxiety, chronic pain and grief. Most recently she has been working with individuals who have experienced trauma or sustained traumatic brain injuries.
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Reflections on Teaching ADR in Grenada

Our colleague Joel Skapinker is on our teaching team in Grenada this week. He, along with Riverdale associate Elizabeth Hyde and mediate393 mediators Nicole Stewart-Kamanga and Liz Waisberg are delivering training to 35 community leaders as part of the IMPACT Justice Project. See our previous blog for more information about this exciting project. 


Our first day of teaching mediation in Grenada was quite an experience. I was impressed with the sophistication of the participants who are very keen on learning as much as possible.  Many of the attendees are police officers and community leaders who have experience in conflict resolution but with limited or no formal training.  They had acted using common sense; this group has a strong instinct for doing things correctly without really appreciating why they were doing them.  It was very satisfying to see them absorbing the information we taught and asking questions that demonstrated their readiness to integrate the taught theory into practice and to become well-trained mediators.

I have learned much from the attendees already. Great exchanges are taking place in the small groups we coach.  For example: the island of Grenada was named after Grenada in Spain by Columbus who “discovered” the island; the indigenous population were largely killed by the Spanish, and the survivors assimilated into the general population of Africans brought here as slaves; the French took over from the Spanish in a war and that the French lost the island (twice) to the British; there was a revolution in the 1980s which brought in Cuban and  Soviet communists to help create socialism; Ronald Reagan, in one of his few disagreements with Margaret Thatcher, invaded Grenada in 1983 on the pretext of rescuing US students “stranded” in Grenada; and the minimum wage in Grenada is $2.50 (CDN) per hour.

I have always known that travel is educational but to travel specifically in order to teach & learn is educational on steroids. To  have the opportunity to teach this particular group is even better. Its an honour to have been chosen to accompany Elizabeth, Nicole & Liz.


Joel Skapinker
(B.A., LL.B., LL.M., Acc. FM)
Joel has many years of experience practicing family law, currently with Skapinker & Shapiro.

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Practical, Ethical Guidelines for Comprehensive Family Mediation: Part 4

Pink Lady Slipper flower with dew on the petalsIn this part 4 of this blog series, Hilary sets out four practical ethical “rules” which should be considered in mediation practice


Four suggestions

Given the unique vulnerability of family mediation clients, and taking what exists already in the form of codes of conduct for family mediators, the following is a set of practical ethical “rules” which should, in my view, be the minimum requirements for this kind of mediation practice:

1. You must know and explain, openly and honestly, who you are, and how you practice mediation. Morris calls this first step “know yourself”. By this she means understand your own ethical values, and the assumptions which underlie them.[25] This in turn will impact the kind of mediation you tend to practice; for example, what do you consider to be the goals of mediation and the indicia of success? How do you deal with issues of confidentiality, particularly where the process involves caucusing? Do you caucus? How hard and far do you “push” parties to be open, honest, vulnerable and empathetic with each other in the name of reaching the goals of mediation? Are you prepared to be substantively evaluative if that is what the parties want? How do you deal with perceived bullying, lying, deceit, manipulation (however you might define that complex concept) or mere reluctance to fully participate? How hard do you try to enable the parties to realize some type of transformation, as opposed to “merely” reaching settlement? Much of this self-analysis will turn on your personality type; your natural inclinations to introversion or extroversion, to thinking or to feeling, and to sensing or to working with concrete facts will have a real impact on your own comfort levels and practices.[26]

2. You must clarify, in writing, the reciprocal obligations and expectations between you and your clients, in terms of ethics, process and outcome. This includes explaining to your clients “who” you are and “how” you practice mediation as discussed above. This is the only way of fairly and honestly letting clients know what to expect of you and what you expect of them, in order to reach the goals that they and you share for the particular mediation. Most mediation agreements state that the parties agree to mediate in good faith, but the expression of reciprocal ethical obligations and expectations pretty much begins and ends there. What do you expect of your clients ethically? And what do they expect of you? Presumably you will covenant not to lie to or mislead each other [27]. Substantively, the mediator and parties should identify at the outset the desired goal of the process; such as mutual commitments for behaviour to prevent abuse, a property division agreement that both parties consider fair, processes for improved communication, a sense of being heard, closure, to learn from past mistakes, a parenting plan that puts the interests of the children first, an agreement to start or continue counselling, and so on. The agreement should address how much direction, evaluation, and legal information the parties want from you, as well as your expectations of the parties in terms of them seeking legal and other advice. Clarifying these expectations in writing not only reduces the possibility of misunderstanding and disappointment during the mediation process, it protects the parties from their own lack of knowledge about the process. It “warms them up” for what they need to do. And it makes it more likely that the sorts of conduct you are covenanting not to engage in will in fact be avoided, making for a more useful and positive experience for all. In doing so you will be protecting, in the most effective way possible, the “weaker” party from bullying and other negative behaviour that might otherwise cause them harm.[28]

3. It is impossible to provide comprehensive family mediation in a way that is fair to the parties unless you have practised family law. For example, it is unfair to the parties for a non-family lawyer mediator to mediate a marriage contract. This is because this kind of mediation necessarily and continually implicates the practice of law.[29] A comprehensive family mediator must understand the nature and complexity of the parties’ legal rights and obligations in order to know whether true informed consent exists; a non-family lawyer will be incapable of making that assessment, or of determining if a party understands the legal advice he or she has been given sufficiently to apply informed consent. Some of the issues that will be mediated are not only done so in the shadow of the law; child support law, for example, cannot be contracted out of. The law must be applied and the parties will rightly look to the mediator for understanding as to how the guidelines operate. Determining income pursuant to the guidelines, for the purpose of calculating child support, is complicated and technical, especially for self employed people. A mediator who does not have legal skill and training risks doing harm to the parties by mediating child support settlements. The mediator should be able to competently guide the parties through financial disclosure issues and “net family property” calculations, as almost all separating couples will want to work through the family law act provisions as a starting point for their discussion about division of property. Legal skill and training is required just to know what assets are valued and how; the parties are entitled to expect this kind of expertise and guidance from their mediator. It is not the job of the mediator to judge the settlement the parties make, nor to advise the parties of their rights and obligations if they prefer to divide property in a way that is entirely different from the Family Law Act. But the mediator must be able to help the parties work the issues through based on the law and assess whether the consent to accept a settlement is truly informed. If the mediator does not understand the law, he or she will not be able to make this assessment.

The mediator needs moral and substantive credibility in the eyes of the parties; otherwise a bully may take advantage of real or perceived superior legal knowledge, resulting in a settlement that lacks real consent. The fair process that is promised will not materialize; not will the anticipated fair result.

How, one might ask, can there be a “risk of harm” to parties when the mediator does not prepare a binding agreement? Most family mediators prepare only a nonbinding memorandum of agreement which enables the parties to seek legal advice on its proposed terms. (In fact, the FMC and OAFM Codes prohibit the preparation of binding documents.) This practice serves the interests of nonlawyer mediators as much, or more, than the interests of the parties; it gives the mediator comfort, from a liability and unauthorized practice of law standpoint, in mediating settlements notwithstanding the mediator’s lack of substantive expertise in the subject matter of the dispute. But it provides no comfort to parties who commit in principle to settlements which they later learn, from their lawyers, are profoundly unfair from a legal perspective. At this point, such settlements may unravel, and the mediator has done more harm than if the parties had not mediated at all. The promise of mediation will not have materialized and the hostility, resentment and aggravation of the conflict may be worse.

4. The mediator must never be lazy; ethically this translates into brutal honesty with the parties and with yourself, a passion for the process and empathy for the parties. The mediator must never tolerate conduct that takes away from the realization of the goal of the process. The mediator is ethically obligated to push the parties relentlessly to find out what is needed and why, and what lies behind a party’s resistance to do what is needed. It means aggressively and tirelessly compelling the parties to verbalize the interests behind their positions, and to make sure that each party understands the other. It means smoking out bad faith, bullying, lies, misinformation and intentional half-truths, by talking about it, by putting what you are seeing or intuiting “on the table” for discussion; it  means challenging the parties’ assertions and assumptions without appearing partial; it means never losing sight of the goal of the parties and the fairness of the process by which you are trying to help them accomplish that. It means evaluating positions that the parties may take if evaluation is what is needed to maintain a fair process, and not tolerating disingenuous, self-serving conduct. It means directing the parties towards possible solutions when that is what is needed, and knowing when to bring in third parties to help break impasse or to obtain reliable information that both parties trust. It means providing straightforward opinions about assertions made by parties as to the legal merit of their argument if they are just plain wrong, but doing so in an impartial and non-judgmental way. And it means knowing when to leave the parties alone and completely stay out of the process.

These four principles may appear to be incompatible with traditional notions of “neutrality” and “self-determination”, but it is suggested that respecting and practicing them will go a long way towards ensuring that real and meaningful impartiality and self-determination are in fact occurring. The concept of “neutrality”, for example, implies objectivity and distance from the source of the conflict. It is derived from the law, as a result of the superficial similarity between the roles of judge and mediator.[30] But the mediator’s role is nothing like that of a judge. What parties to mediation want is not actual neutrality, but the appearance of impartiality, honesty, empathy and an ability to find a connection with each side’s story.

“Because neutrality implies objectivity and distance from the source of the conflict, it cannot countenance empathy or give the mediator room to acknowledge or experience grief, compassion, love, fear, anger or hope. Neutrality can paralyze emotional honesty, intimate communication, vulnerability and self-criticism. It can undermine shared responsibility, prevention, creative problem-solving and organizational learning. It can ignore the larger systems in which conflict occurs. It can fail to comprehend spirit, forgiveness, transformation or healing, which are essential in mediation. As a result, it can become a straitjacket and a check on our ability to unravel the sources of conflict.”[31]

Conclusion

Comprehensive family mediation is a high-risk area of practice. The decisions made in mediation and the way in which they are made will affect the parties and their children for the rest of their lives. The mediation process is occurring in the context of a very complex and difficult body of substantive law that is rapidly changing. The mediator must understand the currents of the law. Of equal importance is the emotional context in which the parties are trying to make critically important decisions; it is a vortex of love, hate, passion, fear, grief, anger, depression, confusion and anxiety.

Mediators promise to deliver a process that will help the parties move on from all of this. It promises free and genuine consent, true self-determination, true democratic participation, a fair process, an impartial, skilled and committed mediator, cooperative problem-solving and san end result that does not harm the parties or their children.

Practising their craft with these four principles in mind will help them keep their promise.

 

 

Excerpt from: Linton, Hilary. “Practical Guidelines for Comprehensive Family Mediation.” (2003): 1-17. 

[25] Morris, FN 2, p. 340

[26] It is suggested that all family mediators should complete a Myers-Briggs personality typing process to help them answer these questions about themselves, and therefore direct themselves in their practices.

[27 ]This covenant will require thought; the agreement should define “lying”. Gerald Wetlaufer in “The Ethics of Lying in Negotiations”(1990)765 Iowa Law Review 1218, defines lying as “all means by which one might attempt to create in some audience a belief at variance with one’s own”, at p. 1223. Given that there is a distributive element to the mediation process, lying can be seen by parties to mediation as an effective strategy. It is therefore essential that mediation contracts be based on the premise that “full and truthful disclosure is the key to identifying and exploiting opportunities for integrative bargaining”, (p.1228) and that the parties and mediator all promise to each other to mediate in the spirit of candid and full honesty in order to fulfill the objectives of the process.

[28] For more on the issue of reciprocal solicitor-client obligations, see Wilkins and Menkel-Meadow FN 23.

[29] Menkel-Meadow , FN1, asserts that mediation invariably involves elements of the practice of law among many practices, because of the application of legal skill and judgement to fact situations. (p. 424) This is undeniably a part of a comprehensive mediator’s role. See also Carrie Menkel-Meadow, “Is Mediation the Practice of Law?” (1996) 14 Alternatives to High Cost Litig. 57. This journal is premised on the argument that comprehensive family mediation must, if it is to be done in a way that lives up to its promise, include “the practice of law”.

[30] Cloke, FN 4, p.13.

[31] Ibid, p. 14

 

 

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