April 30th, 2019 by FH&P Lawyers

If you missed part one of our mediation series, read it here

Jill Dougans has been working as a mediator since 2003, and is a member in good standing with the Roster Society now called MediateBC. In addition to being a trial lawyer since 1987 Jill obtained a Certificate of Conflict Resolution from the Justice Institute of BC in 2003.Jill’s training in mediation is continuous as she is also a skills coach at the JIBC in the Conflict Resolution Program. She has mediated a variety of situations, ranging from personal injury litigation to construction, commercial and employment issues.

Check out her expert advice:

What happens if the parties don’t come to an agreement?

Prior to the mediation, the parties will be asked to consider “what will happen if you don’t resolve this dispute”? They can then decide what the next steps will be - gather more information, get advice, narrow the issues that need to go to court, or, schedule a continuation of the mediation. Mediators often see parties settle after the mediation when they have had time to reflect on what was learned in the mediation. However, even mediation that does not settle can be useful as the parties will have a better understanding of the issues and how to resolve them.

Would you recommend mediation before any other legal action? Why or why not?

Mediation is one of several settlement processes available. Each case needs to be evaluated to determine if mediation is appropriate and what is the best timing. In litigation the parties often mediate once all of the evidence has been produced- documents, discoveries and expert reports. The parties can mediate a dispute before litigation is started or at any stage in the process.

Do you act as legal counsel for either of the parties? Are you technically appointed by both to carry out mediation?

If I am retained as a mediator I do not give legal advice to any parties.This is part of an agreement that all parties must sign at the outset.

While all parties in a mediation have to agree on who will be the mediator, mediators must be neutral and cannot act or advocate for either of the parties. If the parties cannot agree then there is a process with MediateBC to appoint a mediator.

Mediators must keep the process fair and balanced and monitor the emotional climate.Mediators can ask to meet separately with the parties and if the negotiation appears to be doing more harm than good then a mediator can even terminate the mediation.Lawyers who are mediators do not give legal advice to either party. If the parties do not have lawyers then a mediator may recommend independent legal advice. The role of the mediator is to facilitate settlement negotiations between the parties.

How do you help even the playing field when there is a power imbalance?

It is common to have an imbalance of power between the parties in mediation. The first thing to do is to identify and acknowledge the imbalance. Power imbalances can be based on many different factors such as education, wealth, information, social connections and communication styles. While many power imbalances are a result of perception, they can still be intimidating.

Some imbalances can be addressed head on, e.g. by encouraging an exchange of information so that all parties have access to the same information in order to resolve the dispute. Coaching and preparation can address communication problems. Perhaps one of the parties might need a support person or legal representation. Often simply being transparent about an imbalance of power is all that is needed.

Parties need to understand what might motivate the other side to negotiate despite a power imbalance. An employee having a dispute with their company may worry that the company has all the power but the company is motivated to resolve the dispute for many reasons- employees represent investments of resources and employee turnover is expensive; companies want a reputation of being a fair employer inside and outside the company; and, disputes that end up in court are expensive.

Mediators have to be aware of power imbalances and whether they are being used unfairly in the mediation. Mediators can meet with the parties separately (caucus) to address the use of a power imbalance.

How does mediation help the parties understand the conflict better?

The parties have to prepare for mediation. I ask them to write out the issues that need to be resolved and their view of the background. I meet or speak to each party separately before the mediation (usually in the week before the mediation) to find out more about the communications between the parties and why efforts to resolve have stalled. Is the problem a lack of information, poor communication skills, or a lack of trust?

The collaborative, interest based negotiation approach that I use is an assertive/empathetic model, which allows for each side to learn the interests of the other parties (empathy) and tell the other parties what their interests are (assertive). The exploration of interests helps the parties understand the conflict. Once they do, coming up with solutions is easier. The issues, needs and interests of each party is clarified. Ultimately, mediation gives the parties the power to make their own decision and craft an agreement that is suited to their own family.

Some cases, such as personal injury disputes are more about risk- what happens if the claim goes to court. It is the exploration of the risks that helps the parties understands the conflict.

Mediation can be an efficient way to resolve a dispute.We say that mediation is hard on the problem and soft on the people.This is true because a mediated resolution allows the parties to resolve disputes in a respectful manner that leaves both parties feeling that they were heard and were able to contribute to the solution.

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