When Selecting a Commercial Mediator, Value Breadth of Experience Over Depth Parties to a commercial dispute are generally inclined to select a specialist mediator with expert knowledge in the field of business where the parties operate. However, there’s much more to a commercial dispute than precise legal issues. Mediators with an “expertly” narrow focus are generally looking neither beyond nor beneath the problem. A broad-based background in many areas—including varied experiences with human dynamics—positions a mediator to recognize the real “heart” of the matter and increase the possibility of settlement. For example, a mediator with a background in construction law disputes and family and estates disputes is able to see more deeply into business or legal disputes. It is often the case that the root of the apparently intractable dispute is often only tangentially related to the business. In one real-world example, a fight was boiling over between business partners in the trucking industry with respect to costs associated with running the business. In another example, a former business partnership deteriorated even further after the split when one party opened up a competing business, allegedly built on the back of clients from the old shared company. The focus of every party in both of these situations was on their respective legal positions—non-compete covenants, breaches of fiduciary duty, et cetera. But, during the course of the mediations, it became clear that the core of both issues was a latent family history between the partners. Failing to recognize this unstable element in a critical situation could render it almost impossible for mediators to deal with the legal and business issues. When a case does not settle, it could be due to the mediator’s unwillingness to address and overcome the “touchy-feely” issues. Mediators who fail to pick up on clues beyond their particular area of expertise might not make the same progress as a mediator with a broad background. A mediator with a breadth of experience is prepared to acknowledge personal issues and craft a solution that preserves and restores relationships. Virtual or remote mediations conducted during the Coronavirus disease (COVID-19) pandemic pose a further challenge for mediators to perceive the unspoken indicators of problems beneath the surface of a dispute. Commercial mediators with broad experiences mediating different types of disputes in different kinds of settings are the best equipped to address the nuances behind complex problems—even through the screen. For more information, or for inquires regarding commercial mediation for your dispute, contact our commercial lawyers and mediators today. “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlog, MediationSeptember 23, 2021September 23, 2021
Play the hand you’re dealt! Do you think it matters? That is, do you think it matters how many cases a mediator has settled? Do you think we can measure the success of a mediator by keeping track of winning and losing records? Or for that matter, do you think a mediation can be successful even if it doesn’t settle? I recently participated in an on-line discussion about the challenges facing mediators in this ‘settle by zoom’ era. Apparently (and I have not experienced it yet) there is a certain part of the population of participants, parties and counsel who do not wish to turn on their video camera when participating in the mediation. There may be many reasons for this, likely ranging from having a bad hair day to wanting privacy. Sometimes parties are just being difficult, obstreperous or simply uncooperative. The question is, does it matter? In my view, likely not. We have to remember that while the mediator controls the process, the conflict is owned by the parties. As does the solution. If one of the tools of the mediator’s tool box is removed, like eye to eye contact and the ability to “read” the other person and react accordingly, a skilled mediator will simply look upon it as just another challenge in a process already filled with barriers. No one wants to talk to a blank screen with only a name showing. However, the true measure of the mediator is the ability to remain agile throughout the process. The joy (if that is not too over the top) for the mediator comes with the myriad of never repetitive challenges and opportunities that the mediation process brings to the participants. Is settling important? No self-respecting mediator would tell you otherwise. After all, mediation is one of several forms of “dispute resolution”. So settling must be important to the mediator or the clients will not be well served. But should the measure of a mediator be based on the percentages of cases settled? Not in my view. After all, there may be other, less tangible benefits, but if the mediator was fair, flexible, committed and tenacious, the mediator will have been successful, settlement achieved or not. “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlog, COVID-19, MediationApril 6, 2021April 6, 2021
Learn to surf! Late in 2019, when it became apparent that the Covid-19 restrictions would remain in place, I decided that beginning a meditation/mindfulness practice might come in handy. After all, this was the time where inner peace could only be a benefit. The teacher on the app began with the saying unattributed (but I found it), “You can’t stop the waves, but you can learn to surf” – Jon Kabat-Zinn. As intended, it got me thinking. So the practice of meditation can bring something of use to mediation. That should be no surprise because even in the basic mediation courses I took in 1995, the emotional state of the participating parties was something that needed to be considered. Calming parties, increasing their comfort, reassuring them, asking them to be mindful (even if not practicing mindfulness) encourages resolution. Getting the parties to understand that trying to swim against the current (or waves) is difficult and often counterproductive. Exhausting too! If we as mediators can teach the parties to take control for themselves and manage their thoughts and the possible outcomes, essentially teaching them to surf, we are more likely than not to achieve a resolution. Enough of that analogy. I am reminded of the mediator at a continuing education programme who thought that we ought to consider burning incense in the break out rooms in order to encourage calm. Well, you won’t find me doing that in any mediation I hold, and that practice is more or less irrelevant in the Zoom environment, but it does raise an interesting issue. How to encourage the parties to be mindful, in the moment and focused during the process is a critical part of the mediation. Limiting distractions (an ever growing problem when using Zoom), maintaining focus and banishing outside thoughts is hard to achieve in the midst of a mediation, particularly with home or office Zoom interference. It is even difficult when practicing meditation. Does this sound too “touchy-feely” for a legal environment? Is it possible counsel will reject the notion that they must learn to surf? Maybe, but in the meantime, mediators already bring these concepts to mediation. You may not even know they are doing it. The better ones are, I suspect, better at it. “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlog, COVID-19, MediationMarch 16, 2021March 16, 2021
Mediator Selection: Skills Often More Important than Expertise As per Rule 24.1 of Ontario’s Rules of Civil Procedure, certain court proceedings in Ontario are subject to mandatory mediation. Even if it is not mandatory in a particular proceeding, mediation is a form of alternate dispute resolution that parties may want to consider to avoid a full trial, reduce the costs of litigation, and hopefully arrive at a settlement that is agreeable to everyone involved. Whether or not a mediation is successful is, in large part, dependant on the choice of mediator. When choosing a mediator, parties tend to focus on the mediator’s expertise. They want to find someone knowledgeable in the subject matter of the case. There is no doubt that such expertise can be helpful. However, for a mediation to truly be successful, the mediator must also have a certain skillset. The mediator must be able to listen, understand the parties’ concerns and identify the parties’ interests even if they are not obvious on the surface. Consider, for example, that disputes can be emotionally driven. A good mediator should be able to sense and identify underlying issues, such as the desire of one of the parties to reconcile or receive an apology from the other and then facilitate that. Time and again, these skills prove to be much more important in a mediator than subject-matter expertise. Moreover, these skills apply to all types of mediation, including commercial disputes. In fact, it is in a commercial dispute that a mediator may be more likely to overlook the emotional component or other underlying issues, which may not be as obvious as they are in family or estate-related matters. A skilled mediator will always go beyond a strict reading of the law and leverage the unique set of facts, as well as the uncertainty and expense of a trial, to bring the parties to a mutually agreeable resolution. If you have any questions about choosing a mediator, or about mediation in general, please contact Eric Gossin, partner at Devry Smith Frank LLP. Eric is experienced mediating in a wide variety of legal disputes, including personal injury, corporate and commercial law, real estate, and family law and has a thorough understanding of what is required for a mediation to be successful. You can reach him at 416-446-5828 or eric.gossin@devrylaw.ca. “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlog, MediationJanuary 20, 2021March 1, 2021
How a Mediator can get you out of an Impasse Mediators have to be adept in soft skills to identify and break down the causes of an impasse between opposing sides. DSF lawyer and mediator Eric Gossin shares his wisdom and experience on the tricky task of bridging often seemingly insurmountable differences. Grasping underlying issues Disputes are often multilayered, and it takes a skilled mediator to peel them back and understand what’s at the core. A superior mediator has the skill to read between the lines and intuitively understand what the issues are that are not spoken about. For example, in an estate matter between siblings, the background of their relationship needs to be taken into consideration. At times it may be necessary to address the personal issue that the father has always favoured one sibling over the other and the hurt feelings this caused in order to be able to get to a compromise regarding the legal issue. The mediator moves away from the money and property issues, in an attempt to get one party to understand what is bothering the other side. The goal is to get the parties to acknowledge the other side’s real interests. Getting parties to talk In order to reveal underlying issues, the mediator needs to get the parties to talk, which is not always an easy endeavour. One strategy is to focus on things the parties have in common. Another is to convey to them that the other side is giving conciliatory signals. Such commonalities and signals are usually overlooked by parties who are in rigorous dispute. In order to make them see these signals and common interests, it takes lots of restating and reframing of positions by the mediator. Another strategy is directing the parties to areas where something positive can be accomplished, even if it is small at first. Small victories will help them move to a position that can break the impasse on a larger matter. If parties are immovable and none of the above bear’s fruit, it is a good idea to carefully point out respective weaknesses in the parties’ cases. This will showcase that litigation, the alternative to mediation, and the route that the case will often take if mediation fails comes with risks. A judge’s decision may well be one where neither side is getting what they want. It is only in rare cases that one party gets all they want. Compromises are the rule. Realizing this will often keep the parties at the table and make them more flexible so that a stalemate position is avoided, which is the first step to a settlement. Sometimes a mediator will invite third parties into the mediation — such as a shareholder, a spouse, or business partner — if he thinks that will help move the matter forward. The relation between mediators and lawyers In my observation, it is common for lawyers to take the position that they have made their final and best offer, or to pronounce a stalemate. A mediator then has to walk a fine line, careful not to undermine the legal advice of the parties’ lawyers. Each lawyer has the obligation to put forth and defend their client’s case, but sometimes seeing what is in the client’s best interests is not always cut and dried. Lawyers may not always dig deep enough to reveal the underlying issues that stand in the way of a settlement. The situation can become difficult for a mediator when he or she realizes the impasse is because of counsel. Sometimes a mediator can sense that if it wasn’t for counsel, the client would be prepared to move. Sometimes the reverse happens where the clients are stuck, and the lawyers are encouraging them to settlement. That dynamic is a great challenge in mediation, and one of the things that separate the average mediator from a better one is their ability to recognize that tension between the lawyer’s legal position and the client’s — and whether one or the other is more enthusiastic in settling. Admittedly, sometimes people just want to fight. Mediation cannot solve every case, however, in most cases, it is successful. “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlog, MediationSeptember 22, 2020March 1, 2021
