Does Mediation Training Provide Sufficient Tools for Success?

If you are a fan of Mediate.com, you may be familiar with an article I recently published titled “Can Lawyers Mediate?”. The focus of my discussion revolved around the disadvantages lawyers experienced in their training which was vested in the lawyer’s need to win. Compounding this issue was that legal constructs are more vested in right and wrong, as well as codification in law. The thrust of this training detracted from the lawyer’s ability to be neutral which is a fundamental requisite to demonstrate competency as a mediator. The article was well regarded in that I received several compliments and comments from relevant sources all of whom suggested that the article was not only timely but also very much on point. After re-reading, it occurred to me that, to the uninitiated reader there might well be the perception that I was anti-lawyer. Nothing could be further from the truth as I will explain in the balance of this article.

In the last 10 years, I have been an instructor in a mediation certification program at one of Toronto’s largest universities. The mantra of the training for more than 1/4 of a century, even from the time I was a student in the program, was that “all that was needed to successfully conduct mediations was training in mediation techniques”. One did not need to have an area of specialization or knowledge relevant to the legal topic at hand. The mere fact was if one could reflect, paraphrase, or reality test these skills were sufficient to allow the student to mediate any type of matter. In as much as I have worked in the field for the last quarter of a century during which time, I have conducted more than 4000 mediations, I believed that this postulate was incorrect. 

This reality was brought home very clearly and concisely recently when I had one of my students Keisha Osborne, who had recently completed the certificate course. Keisha applied for and was offered the opportunity to article in my thriving practice. Broadly speaking, and without getting into the minutia, the formal articling process is 80 hours in length and requires the student to prepare, attend and co-mediate in a minimum of 6 matters. On several occasions during her articling the student followed each mediation and commented on the difference between theoretical learning and the practicality of being in the trenches. She was so struck by this difference that she wrote an article published on Mediate.com, titled “When the Rubber Hits the Road”, in which she delineates the stark differences between the training and the reality and the ensuing challenges that she faced in attempting to traverse the internship based on her theoretical learning. 

Given that this is a preliminary paper, it does not deal with the constructs in the depth that they can be fully explored. Rather, given the time and space limitations, the purpose of this paper is to illustrate on a very superficial level some considerations beyond simple training in techniques that must be addressed to make the mediation process functional and effective. In other words, why training in mediation techniques alone is insufficient. First and foremost, it must be remembered that mediation in many jurisdictions has become legislated. As a result, the mediations that currently occur do so in the shadow of the law. Simply put, this means that mediation has become mandatory as ordered by legislation as opposed to two parties simply deciding they wanted to get together and jointly focus on a specific problem that they were seeking to resolve, and further that they were doing this was their violation. They were without any restrictions as to potential solutions available provided they were jointly agreed upon and acceptable to both parties.

The institutionalizing of mediation occurred in 1999 by the Government Of Ontario after pilot projects examining the viability of both civil and family mediation conducted by the Attorney General were completed. At that time based on the results, it was decided that mediation would be encoded in the rules of Civil Procedure. What this meant is that claims filed for employment terminations, personal injury, motor vehicle accidents and business disputes were required to be mediated under Rule 24.1. Similarly, estate matters had to be mediated under rule 75. It was only approximately 15 years later that family mediation became mandatory as well.

This legislation of mediation meant that it became a part of the legal continuum. While the difference between a mediator and a judge is that the mediator could not impose a cure or render a decision, the mediator nonetheless could work with the parties using the same material that would go before a judge if the matter did not settle in mediation. The mediator could empower them to co-create a resolution that they could live with. The reader needs to understand the impact that codification in law has had on the process, as it casts a different perspective on the mediation process before legislation.

Whereas in the past two parties could decide to sit together and jointly work or resolve an issue of conflict between them in whatever they felt appropriate without consideration to any factors other than their own opinions and beliefs, this codification has now resulted in expectations that the potential solutions in the matter needed to conform with the expectations relevant to the court. This change afforded power and credibility to the mediator, who was now seen as being a part of the legal establishment. This restricted the concept of two parties getting together and choosing a third party to mediate a matter without forethought. Now attention had to be focused on the skill set and competence of the chosen mediator in addition to the consideration that both parties approved of the choice of individual. This consideration became vital especially if the resolution were to result in a “wise agreement”. A wise agreement mirrors what a judge would order. It protects the rights of all parties and is not partial to either.  As such, the institutionalizing of the process now meant that in the case of an employment matter, the party is often required someone who understood the constructs around the Employment Standards Act and common law. Similarly in personal injury, the party is now required someone aware of the minor injury guidelines, catastrophic injury, tort, the deductible, and the threshold. Whereas in the past there was no need for strict adherence to legal relevance and qualifications we were not structural parts of, or integral considerations in the resolutions arrived at previously with institutionalization they now became fundamental requirements.

The second salient consideration attributable to institutionalizing was the fact that the process was now orchestrated by lawyers as opposed to by the parties themselves. This significant change meant that as opposed to two people sitting down and co-creating a resolution, oftentimes this opportunity no longer existed as their lawyers by and large did most of the speaking. The issues were no longer framed in the context of what the parties wanted but rather in the expectations of the law. The points of reference in this instance changed from people’s wants and needs to what would occur if a trier of fact were dealing with the matter. 

Thus, the referent source of resolution changed to case law as opposed to the individual wishes of the parties. This change meant that it was no longer sufficient to just learn the techniques of mediation in the context of the civil arena. 

These implications to the mediator were that she or he had to work with the parties to create a solution that would be acceptable within the confines of the legal paradigms that applied to the specific case in question. While the wishes of the parties were a consideration, less emphasis was placed on them and more on how the matter would resolve if it were to come before a judge. Counsel for each party often bolsters their position by referring to similar fact situations as decided in cases by judges. Thus, For the mediator to be able to accomplish this requirement she or he needs to possess or acquire skills beyond those offered in courses which only taught techniques of mediation. The mediator now also needs to understand the rules of governance that applied to the specific type of mediation they were doing. They had to know how courts had decided similar cases previously. Additionally, they also needed to be aware of what potential outcomes could result from any specific matter, especially if they were going to achieve a “wise agreement.” To achieve this objective, the mediator needed to have some grounding in the law and how it functions. That is not to suggest that the mediator needs to become a lawyer. 

‘Gary Furlong’, a prominent mediator in Toronto (who is not a lawyer), has written in his book that every mediator needs to have a toolbox with various instruments that can be applied to specific cases. It is hoped that a comparative understanding of this concept can come from the fact that one would understand if a painter were to attempt to paint a house he or she would need to know where the paint was going, whether there was a need for a primer, what was the material that was being painted on, what colors were being used, amongst the many considerations that would have to be focused on a simple job of painting. All of which would be essential components in the process. By analogy, the same would apply to a mediator who would need to know the specific arena he or she is in, the rules that apply to that, and the cases and decisions that formed the pathway in that arena especially if we wanted to facilitate the ultimate objective of a mediation a wise agreement. Simply training them in the essential techniques of mediation would result in them lacking the ability to wisely facilitate resolutions. 

References;

1. Ally, B., & Osbourne, K. (2021, January 5). Theory vs. Reality: Where the Rubber Hits the Road.

2. Osbourne, K., & Ally, B. (2022, March 17). Can Lawyers Mediate Proficiently Based on Their Training.

3. Gary T. Furlong, (2020, Sept. 16). The Conflict Resolution Toolbox: Models and Maps for Analyzing, Diagnosing, and Resolving Conflict.

Bruce Ally

Bruce Ally is the founder of A Place for Mediation. As a mediator in private practice he has conducted in excess of 4000 matters. He is an instructor in the Lawyer in Negotiation course at Osgood Hall Law School, and a facilitator in the Advanced Mediator Program and the Workplace… MORE