This post is written by Mary Korica, an independent writer, speechwriter and editor with a long-standing interest in dispute resolution. She can be reached through marykorica.com.
Guest Speakers: Christine Kilby (Mediator) and the Honourable Todd L. Archibald (Mediator, Arbitrator, Retired Justice)
Moderator: Marvin Huberman (Mediator, Arbitrator, Investigator, Adjudicator)
On September 26, 2023, the ADR Institute of Ontario (“ADRIO”) held the first session of a three-part live panel discussion and webinar series titled “The Stories ADR Professionals Tell” with speakers Christine Kilby and the Honourable Todd L. Archibald. Marvin Huberman was Moderator.
“Fit the forum to the fuss,” stated Marvin Huberman, recalling the phrase introduced by Harvard Law School professors and dispute resolution pioneers Frank Sander and Stephen Goldberg. He identified that the Alternative Dispute Resolution field includes as many as 15 to 20 processes, and that the key to successful resolution of any conflict is to choose “the correct process for the specific dispute and the particular disputants.” He invited the audience to embrace an emerging revision to the field’s name—“Appropriate Dispute Resolution”—which promotes an approach where no resolution process is privileged or viewed as a default. Instead, “all the responsible dispute resolution options are considered in order to maximize the chances of optimal, innovative, and mutually beneficial solutions.”
Huberman opined that the most important dimensions to any conflict are “the three Ps”—the people, the problem, and the process. He and panelists Christine Kilby and Justice Todd Archibald traded tips for how practitioners can best address challenges and capture opportunities along those dimensions. The audience—ranging from experienced adjudicators to aspiring mediators—contributed their own thoughts.
Tip: fit the forum to the fuss. Kilby described a case that on the surface seemed appropriate for mediation, but due to subtleties of the interpersonal dynamic between the parties turned out not to be. The matter involved two former romantic partners, where one claimed reputational injury, and the other seemed to acknowledge wrongdoing but was unwilling to consider or discuss remedies. Kilby read the situation as an uneven power dynamic where the respondent seemed content to remain tethered to their former partner and wasn’t truly looking for a resolution. Kilby concluded that mediation was not an appropriate process for the situation, as the parties could not negotiate a resolution without external input from the judicial process.
Tip: change the environment. Huberman and Justice Archibald both emphasized that when there is an impasse, changing the context can return positive momentum. “Take the person out of the heat of the battle,” said Justice Archibald. “Take the party that is most dug in, and invite them for a walk or to the coffee shop or to lunch. Give them a 15-minute break from the Zoom session.” He added that one could “change the channel,” both “literally or figuratively,” and described what had worked for him in the past. “Talk to them about today’s Blue Jays game if they’re a sports fan. Or talk about what a beautiful day it is, and how great it would be to enjoy the future without being burdened by the dispute any longer.”
Tip: recognize what is causing the standstill. “Parties may be worn out, or need some time to take stock, or to talk to someone who is not in the room,” said Kilby. So, she sometimes considers it best not to push for a resolution. “I might say, ‘if you decide you want to let it go at this point, that’s up to you.’ And often, if that’s how we end, the parties settle it themselves within another few weeks.”
Tip: “last offer” approaches. Huberman has had last-minute success by proposing that both sides give him their best offer, sealed in a folded paper, and then have him pick one or the other to arrive at a final and binding resolution. He noted that some practitioners even decide this “last offer arbitration” by a coin toss.
Tip: build rapport with the parties from the onset. Justice Archibald emphasized the importance of working hard to build respect and trust at the beginning of a mediation. “The people thing is paramount. Talk to them about their backgrounds, find out what motivates them. So that at three o’clock when you get to that tough moment, they do listen to you.” He described an instance where he was able to build necessary rapport with a severely injured party by sitting close to them when speaking with them alone.
Tip: use the pre-arb to make sure things don’t go wrong at the arbitration. According to Justice Archibald, “pre-arbitration meetings are key to set the parameters and control the process in advance. They also allow you to gauge the temperature, take the steam off of the opposing sides, assess what your approach should be. It’s critical that you not go into an arbitration until everybody knows what the lay of the land is, and they know how they are going to approach the arbitration with professionalism and courtesy—because discourtesy is a recipe for failure.”
Tip: express that what is happening is not helpful and is costly. An experienced adjudicator from the audience contributed that it helps “to make clear that the behaviour is not helping the arbitration process.” Huberman mentioned that reminding about the financial costs of prolonging the process may also end inappropriate conduct.
Tip: explain procedural matters and repeat if necessary. Another expert from the audience noted that “the distinction between asking questions and making a statement is often difficult for lawyers, much less unrepresented parties.” His approach is to explain the difference between questions, cross-examination, statements, and submissions. “I try to do it as clearly as I can before the start and sometimes during the process as well.”
Tip: be generous but with extreme procedural fairness. Kilby described that indulging unrepresented parties who are unfamiliar with the rules works well. “I often overcorrect on the procedural fairness element of the hearing to let the venting happen. I tell them, ‘if you want to make an argument, I will let the other side respond, and then give you a very brief reply.’” She added, “you set the rules and parameters, but you can still be responsive and dynamic.”
The exchange of stories and techniques proved a window into on-the-spot instincts and problem-solving. Everyone walked away with some valuable information so that we can all, as Huberman said, capture “ADR’s tremendous potential.”
This post is written by Mary Korica, an independent writer, speechwriter and editor with a long-standing interest in dispute resolution. She can be reached through marykorica.com.
Reviewed and Edited by the ADRIO Newsletter Blog Committee in collaboration with Staff:
Babara Benoliel (Chair)
Ben Drory
Robyn Jacobson
Kim Parish
Tommy Lam (Staff)