Observations from the “Field”
As mediations continue to rapidly transition to the mainstream of dispute resolution relegating the “alternate” label more apt to Court processes (trials, JDRs), little wonder that new challenges are arising for mediators in their work, counsel and their clients, and the general cause of dispute resolution. The reasons for this rapid evolution from traditional litigation processes to private mediation have been discussed in my earlier blog pieces.
In the early days of mediation – 15 to 20 years ago – the ADR mechanism was new, refreshingly different, surprisingly successful and attracted more progressive parties and their counsel seeking a path to resolution of disputes that minimized costs, risks, delay and excessive conflict inherent with traditional litigation. With the rapid growth of interest and use of mediations by parties in dispute and their counsel, the process has been subjected to a rapid influx of counsel representing parties in dispute and concurrently a larger number of lawyers interested in developing a practice in the field as mediators. Naturally, with a large influx of new and aspiring mediators, most of whom have no training or desire to seek it, together with an even larger influx of litigators who may not have previously supported or developed an appreciation for the process, challenges to the effective and principled execution of a mediation process by mediators are many and varied.
Counsel and clients involved in disputes within the insurance realm (personal injury, disability, property loss, subrogated claims) were the leaders in widespread use of mediations and thus evolving trends are perhaps best examined in that context. Lessons from such reflections will undoubtedly impact on the growing number of non-insurance disputes proceeding to mediation. Most non-insurance disputes (for ex. family, commercial, workplace) present opportunities for resolution beyond mainly a good faith debate and valuation of outcomes that can be anticipated at trial (as is typically the case with insurance disputes).
Against this backdrop, one of several evolving trends in mediations relates to the impact of a litigator’s training and the perceived objective of counsel on behalf of a client – advocate and strategize with a view to maximizing the prospects of a clients’ position prevailing either through trial or a negotiated settlement. To put another way, litigators are “wired” by training to win on behalf of a client in whatever dispute might be involved through whatever process. As, in the insurance context, the selection of a mediator, from a practical perspective, rests largely, in the first instance, with the insurer, what impact might a litigator’s training have on that process? Anecdotally, there would appear to be an increasing number of instances where defence counsel seek out and promote mediators, who it is hoped, will oversee a process and provide valuations concerning the merits of a claim that might be viewed as “defence friendly”. To put another way, such mediators might be expected to show a propensity to be generally conservative in their assessments of the value of claims and, at the same time, be inclined to utilize an aggressive approach to getting deals done with plaintiffs and their counsel through the use of pressure, subtle and not so subtle. As an aside, mediators who are quick to provide uninvited evaluations of claim at a mediation and apply some degree of pressure on the parties to conclude a deal either do not understand or choose to disregard basic principles that should apply to all mediations – party autonomy, the voluntary nature of the process and a need to demonstrate respect for the process and the parties and counsel involved in it.
There are many problematic ramifications stemming from this trend observed of some defence counsel. First, whether we are talking about established mediators or aspiring mediators, developing a reputation as being anything less than objective or consistently trustworthy, whether it be real or perceived, fair or otherwise, is nothing short of a “kiss of death” to any hope of a sustained practice in the mediation field. Furthermore, to those counsel who demonstrate a propensity to promote mediators who are perceived to be “defence friendly”, their credibility and rapport with plaintiff’s counsel, who might be prepared, in good faith, to try the services of such mediators (and commonly are disappointed or worse with the experience) inevitably suffers. There are, with respect, too many examples of mediations being mishandled or worse by mediators which serves to undermine the integrity of the process. Some plaintiff’s counsel report that while a mediator choice “imposed” on them by defence counsel might be problematic, they know how to “deal” with them so as to minimize possible prejudice to the position of their client. This is hardly a desirable or acceptable scenario when both sides to a dispute ought to be comfortable with the mediator selected – he or she plays an important role in steering a satisfactory process to a reasonable resolution. Counsel are urged to inform themselves regarding mediator options and on how best to utilize the mediation process to the benefit of their client and be prepared to push back on proposed mediators from opposing counsel that are viewed as potentially problematic to a successful process.
Mediations are a voluntary process. No party should be or feel pressured by anyone in the mediation process, especially the mediator. Hearing accounts from parties that in achieving resolution at a mediation, they felt pressured, battered or bruised by a mediator, is, in a word, unacceptable. For most litigants, mediation is as close to a judicial process as they will experience, given accessibility issues with traditional litigation. Mediators must be mindful to promote a satisfactory and respectful dispute resolution process. And, practically speaking, human and parenting experience should teach most of us that individuals perceived to be stubborn where their position is concerned at mediation are more likely to respond better to respectful persuasion from a mediator in whom they have gained confidence in the opening phases of a mediation than pressure or perceived bullying. Even plaintiff’s counsel are known to seek out mediators from time to time who might be inclined to serve as a “hammer” of sorts in making deals happen with plaintiffs perceived to be difficult.
Counsel representing both plaintiffs in personal injury matters and insurers responding to such claims should appreciate that most insurers understand that the realistic objective at mediations is not to “win” but rather to achieve resolution on a fair and reasonable basis. As some senior examiners have observed to me, rarely are they happy with the outcome at a mediation but they readily accept that “they are not supposed to be”. After all is said and done though, counsel can maximize prospects for a “win” at mediation through preparation (both themselves and client), thoughtful strategies in negotiation, advocacy at the mediation and through the retaining of an experienced mediator who respects both the parties and the process and the above noted components to most mediations.
The importance of trust in a mediator is well described by Dr. Simmons in her recent publication – In Search of Resolution; Complex Issues in Mediation Advocacy where, at page 29, she had the following things to say on the subject:
“Mediators are supposed to be neutral and impartial. Impartiality refers to even handedness while neutrality connotes the absence of an opinion regarding merit. Because neutrality and impartiality are such critical characteristics in mediators, any perception that these have waned will lead to feelings of unfairness. Parties must trust the mediator, as trust is the mediator’s currency… The extent to which parties trust the mediator is the extent to which he or she will be able to productively guide the process and encourage collaborative behaviour and flexibility for participants …”¹
The Simmons book also highlights the complexity that characterizes most mediations. Some researchers and many mediators endeavour to simplify very complex processes within a mediation which complexity is simply a reflection of human nature, particularly in the dispute context and all of the moving parts that are at play in most mediations – interdependence, responsiveness, non-linearity and unpredictability. As is observed at page 14 of the Simmons book, by focusing on simplifying complex factors at play in most mediations, one is, in all likelihood, eliminating reality and thus the prospects for a successful resolution at the culmination of a principled and satisfactory process.
Analogies to these two significant challenges in the mediation world (inevitable complexity and counsel who seek to “win”), can be found in the realm of international diplomacy. Drawing on the analysis and scholarship of two distinguished scientists, Ursula Franklin and Jeffrey Lewis, Elizabeth Renzetti² talks about the complexity to the human condition and how it impacts on the complexity of international relations. Reference is made in the Renzetti article to the security threat posed by North Korea. Such situations, as with many significant international challenges, are steeped in mystery, culture and complexity none of which lends itself to a belligerent, simplistic and misguided approach to negotiation (characteristics many ascribe to the current occupant of the White House) aimed at the elimination or de-escalation of international tensions. Drawing on Ms. Franklin’s idea of an “indivisible peace”, it is observed in the Renzetti article that diplomacy based on the idea that only one side gains is no diplomacy at all – “a peace contract means your enemy gets to win too…”. Drawing on the work of Jeffrey Lewis, and the current state of affairs involving Iran, the following observation is also made – “Of course an agreement is between two parties and it is only sustainable if it is in the interests of both parties…”.
So, if the paramount objective of world leaders is a “win” in a given conflict situation, particularly if fuelled by a poor understanding of the complexity involved, increased conflict and even war are likely consequences. Similarly, in the litigation context, if a “win” is the paramount objective, consider skipping a mediation process and proceed to trial with all the inherent risks and reality standing in the way of a possible “win” … I can almost guarantee that this alternate path won’t end well for counsel and client.
¹ Simmons, Martha E., In Search of Resolution: Complex Issues in Mediation Advocacy (Thomson Reuters, 2018)
² Renzetti, E., Nuclear War in 2020: It may be fiction, but it’s not far from reality, (Globe and Mail, May 11, 2018 ed) p. 2