Law Times

Law Times • April 8, 2013 Page 9 FOCUS The power of personality Tests, science can offer insights into ADR practice BY JuDY VAN RHIJN For Law Times P ower imbalances and personality clashes are a common feature of alternative dispute resolution proceedings. Managing power struggles and leveraging insights into personality are essential skills in the guidance of stormy disputes towards calmer waters. Given that personality has been the subject of scientific study since the 1950s, a more scientific approach by facilitators is an option some people are advocating and considering. At a recent ADR Institute of Ontario event, participants heard about the idea of using scientific knowledge of temperament and personality to inform and guide the mediation experience. Personality is the extent to which someone displays high or low levels of specific traits, patterns of thought, feelings, motives, and behaviours such as agreeableness, conscientiousness, extraversion, neuroticism, openness, and intellect. Temperament is an inherent part of a person's personality. Both temperament and personality influence our responses to our experiences. For many decades, personality assessment tests have helped measure them. David Osborne, the vice president of Predictive Success Corp. who conducted the session on leveraging the science of personality, believes such tests can provide useful information that assists the facilitator to understand the parties and possibly predict behaviour in a dispute resolution setting. His stated intention was to help participants assess personality styles on a deeper level so they can facilitate communication with and between parties within the context of a workplace, business or any other dispute. Tests such as Predictive Success Corp.'s predictive index are already in widespread use for employment and personnel management. Osborne describes recruitment as the low-hanging fruit but believes the test has wider applications, including for team building, succession planning, business improvement, and leadership programs. "A lot of legal work comes from conflict in the workplace. With greater knowledge, those situations could be managed better instead of putting out small fires." Osborne concedes that not a lot of people are using it for mediation but believes it has an application there, too. "People are wired differently with different motivating needs, behaviour, and drives." While Osborne recommends the formal completion of the survey, he says mediators can also obtain the information quickly in order to make classifications in the first 10 minutes while chatting with the participants. "However you figure out the personality style of each participant, the information gives you a better idea of what might be successful so that you don't get in the way of the process but enhance it." This informal method seems to be the approach favoured by most working mediators. Cathryn Paul of Oakville, Ont., started her career as a mediator using the domestic violence evaluation (DOVE), a 19-item instrument designed to assess the risk of domestic violence developed by Desmond Ellis of York University. "I used that when we started the pilot project in mediation at the Milton courthouse," says Paul. She has since moved away from using a checklist. "Every story is different. Different personalities have different hotbutton issues, especially when there is a separation. There is so much history. Some of it comes out during the mediation and some of it lingers in the background." Basman Smith LLP partner Richard Worsfold believes lawyers wouldn't welcome a formal test in many cases. "In civil litigation, the lawyers are present. They are advancing a legal position tied in with personal goals. I don't think too many lawyers would be open to their clients doing a personality test when they arrive." However, he believes it's definitely helpful to have some scientific knowledge of personality types. "Educating yourself is important to understand why people are behaving the way they are and how they are perceived by you. This can include formal training, but then you listen and be open to them." Elena Mamay of Cambridge LLP says that while it's important to have training, mediation isn't a science someone can learn. "There is a great deal of intuition, knowledge, and experience. I have seen mediators with training in psychology and psychoanalysis and it really didn't help. There has to be a trust line between the mediators and the parties so that they can openly discuss their goals. A survey is yet another piece of paper. The parties really appreciate people taking their time to hear their side of the story." Paul believes some scientific knowledge can be most helpful during the initial screening process. When she meets each client individually, she uses her knowl- edge to assess the power dynamics. "It helps you to know what to expect and what the negotiations will look like." However, she concedes that theory is one thing and reality is another. "It's an ongoing process. There may be dynamics that you only see when people are in the room together. There may be flare-ups that you didn't expect. Then you go back to Stage 1." "Personality style definitely affects power dynamics, not just personality and power but where they get their power from, how their confidence has developed, how their communication style is affected," says Osborne. "There are many ways it ties back to personality." 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