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.

Posted in ADR Training, Arbitration, Children, Collaborative Practice, Family Law, Inspiration, Lawyers, Mediation, Negotiation, Parenting Coordination, Separation & Divorce, Training | Tagged , , , , , , , , , , , , , , , , | 1 Comment

Children’s Interviews in the Parenting Coordination Process

A black and white photograph of 3 small children playing in the sandThough parents are ultimately the decision makers, and the children do not have the same decision-making authority, parents decisions can be informed by the children’s wishes.

originally posted July 2015

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Interviewing children in the parenting coordination process is often a great way of gaining information. This can be invaluable when working with parents that present with very different opinions as to the views and preferences of their children, or who may be unable to consider their children’s interests at all. Once it has been determined that bringing the child’s views and preferences into the conversation is both safe and suitable, the information can serve as the centre from which child-focused decisions and agreements may radiate.

At times parents may be unable to accept the child’s interests and preferences. Parents may also be unable to allow their children’s needs to take precedence over their own self-interest, despite those needs being vocalized or apparent. Though parents are ultimately the decision makers, and the children do not have the same decision-making authority, parents decisions can be informed by the children’s wishes. By honouring children, even young children, and their place and importance as family members who are also experiencing the hardships of their parent’s separation, relationships can be strengthened.

Like adult participants, children must also be treated with courtesy, respect, and professionalism. Informing children about the limits of confidentiality and ensuring that they feel safe and respected is important for any child regardless of their age and developmental level. It is important to assure children that as a custodian of their thoughts, fears, and concerns, you are committed to ensuring their safety. They must understand that while there are limits to confidentiality, that you respect their privacy, and value their wishes to not have certain aspects of their inner lives revealed to their caregivers. Creating this sense of safety and establishing a trusting relationship with your child clients will provide instrumental in eliciting the information the process will benefit from and ensuring their safe participation.

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J. Norton (B&W) ®MCP (324x420)

Jared Norton is a Parenting Coordinator with Riverdale Mediation.  He seeks to help parents to develop co-parenting relationships and interactions which support the best interest of their children.  Jared helps co-parents address potential risk factors and to enhance protective factors within the context of the child’s world.

Click here to read Jared’ complete bio and CV.

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Family Arbitration: Exploring Your Options in Dispute Resolution

a bumblebee perched on bright orange flowers surroundedFamily arbitration is a very different process from mediation, and yet they are often confused. Arbitration is a process whereby the parties present their version of the story before a privately-retained arbitrator, often a senior family lawyer, who hears the evidence, applies the law and makes a binding decision. To explore other ADR process options, read our other blog posts.


Family arbitration is therefore, more like court than it is like mediation. However:

  • Unlike court, which is open to the public, arbitration is confidential; the parties agree that the record of the arbitration will be kept in confidence unless there is an appeal
  • Arbitration is not free. The parties pay the arbitrator they choose. Arbitration can be expensive, depending on how complex the matter is, how cooperative the parties are and how experienced the arbitrator is.
  • Parties in arbitration can limit their appeal rights.
  • Those coming before an arbitrator must first be assessed for suitability. This is similar to the screening process as that done by family mediators. The purpose is:
    1. to identify, assess and manage power imbalances that could negatively affect either party in a private FDR process, in particular any risk that a party, a professional or a child might be harmed before or during the arbitration process;
    2. to ensure that parties are participating voluntarily and
    3. to assess whether they are suitable candidates for a private and expensive process. (See Arbitration Act  & Regulations  and FDRIO Standards of Practice for more information).
  • Arbitration must follow the basic rules of due process, but it can be much less formal than court. Parties are free to design a process that best meets their needs, subject to certain requirements imposed by the Arbitration Act and the Family Law Act.
  • Depending on the jurisdiction, arbitration can provide parties with a resolution much faster than going to court.

Arbitration is a popular process in some jurisdictions and for some cases, such as complex financial matters that require specific expertise or high conflict situations where both parties want a speedy resolution. Arbitration can be a very fair and effective process. However, it is critical that candidates for family arbitration are carefully screened before they commit to the process.  Arbitration can be prejudicial to those who are not suitable candidates, particularly where there are significant unknown power imbalances.


For more information about the arbitration process, visit the resources below:

ADR Institute of Ontario 

Ministry of the Attorney General

Justice Canada

Originally posted August 10, 2016 

 

 

 

 

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Recognizing Moments of Successful Co-parenting

Art - Kool Aid (434x640)Providing hope and a realistic vision is as important as developing a roadmap for parents that they can follow towards achieving their final destination.

originally published August 15 2015


Like any intervention Parenting Coordination ultimately seeks to create change. In this case it is change in the toxic co-parental dynamic. As such, the end goal of the Parenting Coordination process is to move parents to a place where PC is no longer required, and where they function as effective co-parents. Realistically this may be that they are able to function just enough, and ideally they can buffer their children from conflict, be disengaged from each other, and can support the children’s relationship with the other parent.

Often the challenge is to educate parties what successful co-parenting looks like. Many parties entering Parenting Coordination have never experienced successful co-parenting and it is difficult to imagine a future where it could occur. Providing hope and a realistic vision is as important as developing a roadmap for parents that they can follow towards achieving their final destination.

As a PC it is important to acknowledge and capitalize on small often unobserved successes and chart incremental change. It can be easy to operate from a problem focused lens, but working from a solution focused and strength based lens parents may be able to develop a new narrative and conceptualize their conflict differently. They may also be able to see for the first time moments of successful co-parenting. Over time these moments build upon themselves and eventually they may achieve the ability to support their children without the assistance of court or a third party professional.

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J. Norton (B&W) ®MCP (324x420)

Jared Norton is a Parenting Coordinator with Riverdale Mediation.  Jared seeks to help parents to develop co-parenting relationships and interactions which support the best interest of their children.  Working with co-parent’s strengths, Jared helps co-parents address potential risk factors and to enhance protective factors within the context of the child’s world.

Click here to read Jared’ complete bio and CV.

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Learning as we Train New Mediators in Belize

The last session of training that we provided in the Caribbean for IMPACT Justice was November in Belize. We spent the week training with 38 police officers of varying rank, who came each day from across the country.

We were inspired by the energy these officers put into merely getting to the course. Many spent 2 hours or more each way, by bus, arriving in crisp uniforms, ready to study and practice their mediation skills.

As with all the sessions in other Caribbean countries, the people taking this training were hardly students in the usual sense. They included senior members of the Belizean Police Force who have been utilizing sophisticated forms of dispute resolution in tough situations for years. Many have experience that we, the trainers, will never have, including having members of the community show up at your doorstep seeking mediation. Several in this group were experienced trainers and mediators themselves.

We had many women in our group, many of whom were single parents. They described the challenges they face juggling the often dangerous work they do with demands of caring for children and family, getting to and from work, and managing in a tough economy. Working with gender constructs is an important feature of the IMPACT Justice Project, and all participants were already keenly aware of the impact of gender on negotiation process and outcomes.

Belize City is one of the most fascinating places I have been. Like many urban centres in former colonies, many of the buildings were designed and built in a former era, with colonial influences and often slave labour. We were fortunate to get a tour of the Supreme Court house, a former Governor’s residence and the oldest Anglican Church in Central America, built with bricks that served as ballast in ships from England.

Over the course of the five days, the group of officers explored the ways in which classic negotiation and mediation theory and practice might be interwoven with their day to day work. In some cases, such as situations of danger or domestic violence, it is not possible. But in many others, the officers felt that much of what they do could benefit from using the active listening, patient questioning and non-judging facilitation skills they were role playing each day. From neighbour disputes to husband and wife conflicts, they found applications for a  less adversarial, less judgemental and less authoritarian approach to conflict resolution.

 

 

 

By the end of the week, we had made new friends,  enjoyed many wonderfully warm and funny moments, and shared with our Belizean colleagues some great learning.

But most of all we enjoyed the bustle of this busy city; the great local food (coconut and ginger Tableta is a treat, and the confluence of Mayan and Caribbean cooking was always good) and meeting the many people who taught us about the history and contemporary life in the country. We also were able to explore the Lamanai Mayan Ruins outside Belize City , and appreciate some of the country’s fantastic natural beauty and historical significance.

IMPACT Justice (Improved Access to Justice in the Caribbean) is a 5-year project funded by the Canadian government. It is implemented by the University of West Indies Cave Hill campus in 13 CARICOM member states. The goal of the project is enhanced access to justice benefiting men, women, youth and business.


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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