Mediations … Some Preliminary Considerations

Before launching into lighter, more practical topics related to mediation, some foundation and context to the practice field in Alberta is perhaps helpful.  

With increasing urgency over the past decade, mediation and arbitration have become the preferred dispute resolution option to those within traditional litigation – JDRs, trials and appeals. This reality undoubtedly reflects the many positive features to mediation and arbitration which are only accentuated by the growing lack of appeal to traditional litigation – rising costs, risks, impracticality and inaccessibility of it. 

It is trite to observe and repeat that disputes between parties, individuals and corporate entities alike, are both disruptive and draining. Because of the growing impracticality and inaccessibility of dispute resolution options within traditional litigation, private dispute resolution (mediation and arbitration) is the closest most disputing parties will get to “justice” in the resolution of their disputes.  So, it is of critical importance that the process be guided by mediators and arbitrators in a principled, efficient and effective way, sensitive throughout to the importance of the work both from the perspective of the integrity of the process and the significant impact of the task on the lives and welfare of disputing parties.

The demand for and volume of mediation work has, to date, outstripped the effective utilization of the process by parties and their counsel, as well as an acceptable standard to which mediators practice. Over the past decade, many lawyers in litigation practice have endeavoured to branch out into practice as mediators and, to a lesser extent, arbitrators. Very few have developed any traction with these efforts. This reality undoubtedly reflects the varied and wide-ranging skill set necessary to be an acceptable neutral candidate for the role by the opposing parties and thereafter to consistently discharge dispute resolution work in a satisfactory fashion. These comments are obviously focused on mediators with legal background and experience. To be clear, there are quality mediators in the marketplace who effectively discharge their work without a law background.  

Training, whether it be programs culminating in certificates, certifications or LLM degrees in dispute resolution, should be a significant consideration to the selection of mediators and to the discharge of such work. This training serves to sensitize aspiring mediators and remind experienced mediators of the multitude of principles in play in guiding a dispute resolution process, principles which behoove both mediators and counsel to better understand and embrace. To be sure, training is not the be all and end all to developing a mediation practice and the effective discharge of retainers.  Some lawyers have dedicated much time and energy to training and yet, for other reasons, have not developed traction in the field of practice. Others, with no training, have enjoyed some success with their practices because of other practice skills and inter-personal attributes.

Where the value and importance of formal training is concerned, I can, perhaps quite uniquely, speak from practical experience.  Before I decided to substantially supplement my earlier training from Harvard (1999) with my LLM ADR program from Osgoode Hall (2006), I had already completed 500 or so mediation retainers. In the 2,000 or so mediations conducted since my Osgoode Hall program, I have mediated with greater confidence and with greater sensitivity to key principles which promote integrity to the process and the satisfaction of participants with it. Before this training, I followed a path and the instincts that I hear about and see from other mediators practicing in the field, without the benefit of training. Elaboration on this observation will follow in future blog pieces.

This and blog pieces to follow are not intended to cobble together a self-serving path concerning the selection of mediators and a style of practice that points exclusively to me and a small handful of others as preferred candidates for mediation and arbitration retainers. Rather, it is intended to offer thoughts and observations about considerations that counsel and their clients should increasingly weigh, both in the selection of a mediator and in optimizing results through the mediation process. 

In blog pieces to follow, I will revisit some basic principles to the work of mediators in particular (as opposed to arbitrators) and then will follow those articles up with lighter and practical topics that arise from experiences in my mediation “travels”. I also plan to wade into more diffuse subjects such as the future of dispute resolution in the context of the current excitement and concurrent apprehension about artificial intelligence (A.I.), as well as the significance of knowledge and sensitivity to other disciplines of science and human endeavours to the work of mediators and the success of mediation processes.

Stay tuned…