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: Jillian Siskind (Construction Adjudicator) and Julie Gill (Mediator, Arbitrator, Coach)
Moderator: Marvin Huberman (Mediator, Arbitrator, Investigator, Adjudicator)
On October 24, 2023, the ADR Institute of Ontario (“ADRIO”) held the second session of a three-part live panel discussion and webinar series titled “The Stories ADR Professionals Tell” with speakers Jillian Siskind and Julie Gill. Marvin Huberman was Moderator.
“What are the prerequisites for success in ADR?” asked Marvin Huberman. He stated that attitudes and assumptions often need to change, and common barriers to resolution need to be tackled, inviting the panelists and attendees to dive into discussion.
Both panelists challenged a standard definition of success—the notion that a mediation is successful only if it ends with a resolution. Referencing her experience as counsel during mandatory mediations in Ontario Superior Court, Jillian Siskind said, “Unless the parties are motivated to settle, mandatory mediation doesn’t tend to result in an immediate resolution. But sometimes it opens the door to settlement discussions down the road.”
Siskind had for some time only seen mediations where no progress was achieved, and which included lengthy opening statements that caused parties to “dig in their heels,” until one mediation changed her negative opinion of the process. “It was my first experience with a very strong and interactive mediator.” Siskind said that mediator gave an overview of the legislation and issues, allowed two-minute opening statements, and provided his opinion frequently. After two days, and the resolution of one “very sticky issue,” the case settled.
Julie Gill, a mediator with the Ontario Mandatory Mediation Program, cautioned against assuming such a highly evaluative mediation style is always appropriate, but agreed that mediations provide many important benefits short of a settlement. Her own approach varies based on the participants and issues, and she finds speaking with the clients and their lawyers separately offers “a chance for the clients to talk to someone else. Often I can get something out of that, a different perspective to work with,” she said. “Because the clients have their perspective, the lawyers have theirs, and we have ours. At the end of the day, only the clients are important.” Sometimes Gill is able to clarify the issue, even for the lawyers, by presenting things from a different angle: “I know there’s a legal issue—but sometimes it really is about something else.” For the clients, mediators may “just plant the seed that it is OK to settle.” Given how much positive benefit can be lost when the potential of mediation is not fully appreciated by the parties and their representatives, Gill lamented the “huge disconnect between how mediators can support lawyers, and what lawyers think we can or cannot do.”
An experienced practitioner in the audience agreed: “What you’re trying to do is open lines of communication and make sure the parties feel heard. That eventually can lead to a settlement. Mediations are very useful at identifying the issues and moving the parties. If you put too much pressure on getting a deal by the end of the day, that’s counterproductive. Because it takes time for parties to move.”
Gill talked about how mediation training can lead practitioners to believe that their role is to “create understanding between the parties, or to fix their relationships, or to arrive at resolution.” But she explained, “what the clients are looking for is a remedy, whether it’s to be heard, or an apology, or financial restitution.” She added that the parties are always at the mediation because of unmet expectations, and there is a story behind that, so it is the mediator’s role to delve into that story because it is the key to whatever success the mediation will have. She felt that if any preconceived ideas limit the mediator in that effort, “we’re doing an injustice and creating another barrier—our attitude.”
Huberman recounted a famous mediation in the United States that settled a dispute between an order of nuns and a pharmaceutical company over the marketing of infant formula. He quoted the mediator, Frank J. Scardilli, that it is “dangerous to assume that one with whom you disagree violently is necessarily acting in bad faith.” Huberman noted that Scardilli invested much effort towards changing that assumption, which he felt was mistaken, for both sides, by getting them to see the matter from each other’s perspective.
Huberman turned the conversation to 10 frequent barriers to settlement outlined by the esteemed academic Frank Sander in 1994, including poor communication and emotional blockages. “You will likely face these in any kind of ADR process, whether it’s negotiation, mediation, arbitration, or adjudication,” said Huberman.
The panelists both recommended taking full advantage of pre-trial hearings or pre-mediation meetings to set the foundation for adequate communication. As an example, Siskind described the costs in time, money, and fairness that arise when participants in license revocation proceedings incorrectly assume that the standard rule for disclosure across all tribunals applies (“Rule 9”), when in fact the more onerous “Stinchcombe standard” applies.[1] She said that the pre-hearing is an important opportunity for “a really thorough discussion of what disclosure means, and making sure everyone understands what their obligations are.”
Gill acknowledged that “many people just don’t know how to advocate for themselves or share their thoughts. And this goes for lawyers too sometimes.” She therefore relies on comprehensive pre-arbitration conferences and mediation intakes to ensure participants are prepared and that she is prepared to manage the process. Comprehensive and continuous screening for power imbalances, domestic violence, intimate partner violence, and coercive control can determine where accommodations may be necessary so that “everyone can have a voice.”
When emotional blockages are barriers to settlement—such as in the license revocation hearings where she is counsel—Siskind recommended slowly and empathetically walking the person involved through the relevant case law and workable solutions, while emphasizing risk mitigation options and the benefit of keeping control of the process.
A commercial mediator/arbitrator from the audience described how he encourages parties to divert their emotional energy into something constructive, like a bidding war. Huberman felt that the expression of “high emotion can actually be beneficial,” because it can be cathartic for the party to vent it to the mediator, preferably privately, which helps them get back to the table.
Gill drew out a common thread through the stories and advice shared during the discussion: “There are a lot of different styles that can be used. The more work you do in different areas of ADR, the more confidence you have to be creative. And you will find ways to make it work for the clients.”
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)
The opinions expressed in the articles featured in this newsletter are that of the respective writers and do not represent the views of The ADR Institute of Ontario.
[1] Rule 9 of the Common Rules of Practice and Procedure, October 2, 2017 (see: https://tribunalsontario.ca/documents/lat-acrb-fsc/LAT-ACRB-FSC-Common-Rules-of-Practice-Procedure_02.07.2019.pdf#page=26) states that a party does not have a general obligation to provide documents that it does not intend to rely upon at a hearing. By contrast, the “Stinchcombe standard” (See: R. v. Stinchcombe, 1991 CanLII 34 (SCC)), which was formulated in relation to the Crown’s disclosure obligations in criminal proceedings, has been found to also apply in the regulatory context when the a regulator is conducting discipline and licensing proceedings that affect a person’s livelihood (see: Watson v. Law Society of Ontario, 2023 ONSC 1154 and Sheriff v. Canada, 2006 FCA 139, [2007] 1 F.C.R. 3 at para 29).