Law Times

December 6, 2010

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Law Times • December 6, 2010 An online resource 1.800.263.3269 Focus On ADR / MEDIATION The art of persuasion ties to a confl ict are the kinds of soft skills that can determine whether a mediator or arbitra- tor can steer them towards an eff ective settlement. Some people are born with an ability to sense others' desires and emotions and say the right thing at the right time. Others need to take the time to develop an aptitude, something experts say is well within reach. Elinor Whitmore — a me- diator, facilitator, and trainer with ADR Chambers in Toron- to — recently spoke at an On- tario Bar Association seminar on the diffi cult conversations mediators often must engage in with parties. Th ey typically involve having to break the news to parties that they sim- ply aren't going to get the kind of resolution to their confl ict they had anticipated. "Th e diffi cult conversation often [centres around] the party who will come in with a very clear sense of what they think ought to happen as a result," Whitmore notes. "So the plaintiff will think, 'Th e re- spondent ought to have to pay me $250,000, give me an ab- ject apology, and put a notice in the newspaper saying what a lousy employer they are.'" Th e problem with this ap- proach, Whitmore says, is that if the parties insist on taking this ought-to standard to the proceedings, they'll never reach a settlement. On top of that, they won't be satisfi ed with any Communication a key skill for mediators E BY ROBERT TODD Law Times ff ective communication and the ability to man- age the emotions of par- eventual court decision. Th e challenge in those situations is helping the par- ties make peace with the fact that their idea of fairness won't be the result and in- stead directing them to the options of settling or tak- ing the matter to court. But that's easier said than done. "Th at's a very diffi cult conversation to have with people," says Whitmore. "You're often attacking their sense of what would be fair; you're attacking their expec- tations; you may be bring- ing up painful feelings about what's happened in this situ- ation and reliving the expe- rience." To adequately meet that challenge, mediators must develop their ability to listen well, articulate their message eff ectively, manage people's emotions, and be empathic, says Whitmore. At the same time, Toronto- based international communi- cation consultant and media- tor Barbara Madonik says it's also important for the confl ict- ing parties to do their part if a meaningful resolution is to result. One of the most impor- tant techniques involves enter- ing the negotiation room with the right mindset, she notes, adding that she urges parties to consider dropping the laundry list of demands or issues they're fi rm on. "My rule of thumb always is: there's another human crit- ter in front of you. If you can always remember that, it'll stand you in good stead." With that in mind, she urges parties to focus on the behav- Mediators often have to break the bad news that parties won't always get everything they wanted, says Elinor Whitmore. iour of other people in the room, including taking note of non-verbal communication. Th at approach may also help those leading the mediation or arbitration to identify whether the parties feel comfortable in the environment where the talks are taking place. According to Madonik, parties must feel at ease if they're going to reach an understanding. "You're going to want to do something that's going to cre- ate that safe environment," she says. Th at involves accounting for everything from the place- ment of chairs to the time of day the meetings take place, as well as notifying the parties of the location of parking or pub- lic transit in relation to the ne- gotiation site. Madonik would also like to see lawyers drop what she calls the "old-school" approach of viewing talks as adversarial. In her view, they need to move to a point where they see them- selves as collaborators. She also distinguishes be- tween placing an emphasis on reaching a settlement and the more favourable approach of seeking a resolution to the confl ict. She suggests the lat- ter approach is more likely to lead to long-term satisfaction for both sides. "Resolution is fi nding an- swers that parties or stakehold- ers can take ownership of, and in doing that, they come away with a sense of contentment," she says. "It's more a sense of coming to terms. Th e benefi t is that you avoid what is known as buyer's remorse." Madonik says parties are far more likely to seek a way out of an agreement if the em- phasis has been on obtaining a settlement. Th at can be particularly troublesome when the parties will be in frequent contact after strik- ing the deal, which is often the case in family or estates mediation. "What we go for as peo- ple who are committed to resolving as opposed to just settling is to make the par- ties part of the process so that they can take ownership of the solutions and so that they can use their energy to make these solutions real," Madonik says. Parties can also help foster a lasting solution by conveying a sense of respect for those on the other side of the table. Th e best way to establish that respect is by being mindful of all of those involved in the process, Ma- donik adds. "Pay attention to the people in not only what they're saying but how they're saying it." Included in that is the need to avoid misinterpreting or overemphasizing the physical gestures or posturing of parties. "You never know what goes on physically with people," Madonik says. At the same time, Madonik says clear communication is evident in most successful me- diations. Th at involves factors such as the way in which ques- tions are asked. For example, if clarifi cation of a response is necessary, it's best to ask for confi rmation in a non-combat- ive manner. "Th at, played back politely, also is a big acknowledgment that you really are listening," she says. LT PAGE 9 Untitled-2 1 10/8/10 9:59:52 AM

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