Evolution of Mediations in Alberta: A Twenty-Year Snapshot
The 1990s saw the emergence of mediations as an alternative dispute resolution mechanism in Alberta. The JDR program was introduced by the Courts and in the private realm, in the early days, there were a handful of private mediators – a combination of retired judges and some senior litigation counsel. Training options were minimal even if any aspiring mediators were inclined to avail themselves of it. Then as in now, very few aspiring and even somewhat established mediators are prepared to make the commitment to the practice by reaching out for training. However, in contrast to the reality 25 years ago, exceptional options for training are now available through various ADR organizations and universities such as Osgoode Hall in Canada; Harvard and Pepperdine in the United States.
Techniques employed in the 1990s by mediators, private and judicial, were basic and somewhat random and by today’s standards, with respect, deficient. Justices assigned to JDRs would often offer, whether asked or not, an early adjudication of a claim and thereafter be reluctant to assist in the negotiating process with the parties and generally demonstrate a lack of enthusiasm for the process. In the private realm, the few practitioners in the field were inclined to impose arbitrary direction on process and were thereafter inclined to follow one of two paths as the mediation unfolded - adjudication much like the approach of judges in JDRs or employ an “interest-based” foundation to resolution. Then, as continues to be the case presently, there is rarely consensus on the definition of various mediation approaches – “interest based”, evaluative, transformational, etc.. As a practical matter “interest based” is generally taken to mean resolution sought on any basis other than the good faith evaluation by all parties with the assistance of a mediator into the merits of the subject claim and a likely outcome if the dispute were to proceed to trial.
I and a number of litigation counsel in the 1990s struggled with the viability of the mediation process as then conducted. Two basic conclusions came to mind - one being a recognition that an alternate dispute resolution mechanism was necessary on account of the deteriorating option of traditional litigation but, concurrently, there had to be a better way of optimizing the mediation process. I conducted my first mediation in 1992 as a 10 year lawyer and at the invitation of two litigation colleagues who urged me to give it a try. In the early days of my practice, I simply endeavoured to deliver a service that I craved as counsel from mediators I had worked with. I maintained with those mediators that held firm to the “interest based” model back then, that it could comfortably encompass a desire by parties in dispute to engage in a good faith process aimed at resolution that reflected, amongst other considerations, a likely outcome to the dispute were it to proceed to trial. In the course of striving for consensus by the end of a mediation on this foundation, I endeavoured to apply flexibility, creativity and power, as mediator, to the process and the dialogue and negotiation that unfolded within it. More on these concepts in future blogs. My overall approach to the conduct of mediations was significantly enhanced through my LLM program which I commenced at Osgoode Hall in 2004 by which time I had reached the approximate threshold of 500 concluded mediations.
Fast forward to the present and demand has grown exponentially for dispute resolution services outside of the Court system and with it a growing number of individuals aspiring to practice as mediators. Notwithstanding significant advances over the past two decades in training options and extensive writings on a myriad of mediation related topics, most mediators continue to shun that option in favour of pursuing the practice much as was done 25 years ago – based solely on certain helpful personal attributes, a solid reputation in the practice of law, and random management of the process. At the same time, users of mediation services, both individuals and corporate entities and their counsel, need to better understand the mediation process given its growing prevalence, starting with the selection of a mediator and thereafter the role the mediator ought to assume with the input and direction of the parties and their counsel.
As I conclude this piece, I wish to simply highlight two basic concepts that form the foundation to mediation and the work of mediators and from which individual styles and techniques ought to be grounded. Mediations are a voluntary process in which parties to a specific dispute engage in a good faith effort to reach resolution. Fundamental to the theory and practice of mediation is party autonomy. It mandates that the parties maintain the right throughout to make their own decisions, for reasons they choose, through a process with which they are comfortable. A mediator cannot and should not supplant those rights or concurrently seek to impose a resolution and a process toward it on the parties. It is left to the mediator to effectively and constructively assist with the negotiation process at a mediation.
In my next blog, I will highlight numerous steps and tipping points (to use a term made popular by Malcolm Gladwell) to most mediations and the appropriate role to be considered and assumed by mediators at those junctures in the process. This upcoming blog will seek to advance the cause of optimizing both the prospects for success in achieving resolution at mediation and through a principled process with which all parties are both comfortable and satisfied.