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Reflections From The Alberta Arbitration And Mediation Society

I was honored to be invited to present two talks at the Alberta Arbitration and Mediation Society’s Annual Conference in Edmonton last week. The President, Pat Withers, had heard about my presentation at the ABA Dispute Resolution Section’s Conference in 2009 on Ethics and Mediation and was excited to have me do a reprise. In fact, since the time of the initial invitation, I had given the updated version of the talk at this year’s ABA Dispute Resolution Section in San Francisco just two weeks before. It was met by a lively, engaged, largely American audience who had much to say about their own ethical dilemmas dealing with American lawyers and their clients in cases ranging from personal injury (that was sometimes exaggerated) to workplace discrimination (that was sometimes dependent upon nuanced evidence that was hard to secure). So it was with somewhat troubling to me to find that the audience of about 50 Albertan mediators could simply not relate to the stories I told of deceitfulness, exaggeration and secrets which lawyers and their clients reveal to mediators on occasion, and we are duty-bound to maintain those as confidential. In short, many members of the audience confided in me afterwards, “this would simply not happen” in Canada. Some of it is institutionalized. For example, there is no such thing, apparently, as civil fraud. Fraud is criminalized and would give rise to terminating the mediation and reporting to a Judge in the event of such behavior. One can imagine, then, how the threat of criminal prosecution may deter the employment of such “tactics” which are so commonly seen in civil disputes in the U.S. Second, citizens have access to good health care at no cost, so there is no incentive to sue a third party (and in fact in cases of “minor injuries” a law against it) in order to afford costly and necessary medical care following an accident. On and on, the examples I gave of ethical dilemmas, some personally experienced and many arising out of published California cases that have tested the duties of confidentiality as against the professional ethics of attorneys appearing in mediations of civil disputes, were, simply stated, unfathomable to my Canadian audience.

As usual, I learned more from my “students” than what I taught. But it particularly heightened my own consciousness about the cultural differences between American attorneys and mediators and our very nearby neighbors. The second workshop I presented was on Breaking Impasse. It dealt with sophisticated models or tools that mediators in the U.S. commonly use to get high stakes cases resolved (including brackets, decision tree analysis and risk analysis as well as mediator’s proposals). Once again, these were very “foreign” concepts to the Alberta mediators who were unaccustomed to negotiating over money without committing to a robust opportunity for the parties to collaborate, and resolve through interest-based negotiations with the monetary issues then falling into place without mediator intervention. It’s a purist model of mediation in which I was also trained, but admitting to this audience that I rarely use it without the necessity to also get into “the money” through shuttle diplomacy made me feel “unpure”.

So it is that this photo–depicting the reflection of Canadian Rockies in the pure, clear Lakes, made me think hard about the value of self reflection, the open vistas just beyond our borders and the American way. More questions than answers, but what a fascinating experience for me and a deep and sincere appreciation to my Albertan friends and colleagues for giving me a chance to do this self-reflection and for listening with open ears and arms to the ethical issues we face here as though they are universal.

                        author

Jan Frankel Schau

Attorney Jan Frankel Schau is a highly skilled neutral, engaged in full-time dispute resolution. Following a successful career spanning two decades in litigation, she has mediated over 700 cases for satisfied clients. Ms. Schau understands the nuances of trial and settlement practice as well as client relations and balancing the… MORE >

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