One of the most important hallmarks of mediation is confidentiality. (It is not, however, an absolute value: clients are informed early on that mediators have a duty to report circumstances of threat or danger to physical safety.) To safeguard the confidentiality of the process, Agreements to Mediate that clients enter into with the mediator typically include an undertaking that the mediator will not be called to testify in any subsequent legal process. In recognition of the need to guarantee confidentiality if the mediation process is to maintain its integrity and viability, courts generally do not compel mediators to give evidence.
This is why the case reported by Christopher Annunziata in his blog, CKA Mediation & Arbitration, is especially notable: it recounts the case of a mediator who served a “family in three different professional roles within three months’ time – counselor, mediator, educational consultant” and not only did not challenge a subpoena to testify but also responded to a court order in which he was criticized by further disclosing confidential information from the mediation process. read more…
The documentary, “How To Divorce & Not Wreck The Kids”, that first aired on the CBC last January, is being re-broadcast tonight at 9:00 p.m. EDT. You can also watch the film below or at this site:
Although the documentary focuses on the colloborative family law process and does not deal with mediation itself in as great detail, I commend it to you.
From the July 1, 1867 edition of The Globe newspaper of Toronto, republished in today’s Globe and Mail:
The Union of the Provinces of Canada, Nova Scotia and New Brunswick, under the new Constitution, takes effect to-day. We heartily congratulate our readers on the event, and fervently pray that all the blessings anticipated from the measure, by its promoters, may be fully realized.
So far as the people of Upper Canada are concerned, the inauguration of the new Constitution may well be heartily rejoiced over as the brightest day in their calendar. The Constitution of 1867 will be famous in the historical annals of Upper Canada, not only because it brought two flourishing Maritime States into alliance with the Canadas, and opened up new markets for our products, and a direct railway route to the Atlantic through British territory, but because it relieved the inhabitants of Western Canada from a system of injustice and demoralization under which they had suffered for a long series of years.
The unanimity and cordiality with which all sections of the people of Canada accept the new Constitution, gives the happiest omen of its successful operation. And, assuredly, if the people of the United Provinces are true to themselves and exercise a persistent and careful control over all public proceedings, there is not a shadow of doubt as to success. The only danger that threatens us is, lest the same men who have so long misgoverned us, should continue to misgovern us still, and the same reckless prodigality exhibited in past years should be continued in the future; but this we do not fear. We firmly believe, that from this day, Canada enters on a new and happier career, and that a time of great prosperity and advancement is before us.
1994 first edition
2004 revised edition
It is disappointing that Jason A. Waxman’s “A Nuanced Comparison of Transformative, Insight and Narrative Mediation” on the mediate.com website relies, in two cases, on outdated source material and, in the third case, on a secondary source. In the case of transformative mediation, he cites a 1996 journal article by Bush and Folger when the most definitive and recent articulation of the framework is to be found in the revised edition of The Promise of Mediation, published by Jossey-Bass in 2004. Similarly, for insight mediation, he cites a 2007 journal article by Picard and Melchin when the most current statement of the model is to be found in their 2008 Transforming Conflict Through Insight. And, in the case of the narrative mediation model, his piece relies on an article on the mediate.com website (the URL for which is cited incorrectly), a secondary source, when the 2000 Narrative Mediation — A New Approach to Conflict Resolution by the model’s originators, Monk and Winslade, is available. Indeed, chapter 1 of the book appeared on the mediate.com website in 2001.
As surprising as this sourcing is, it is becoming common place to see the transformative mediation model yet again misunderstood. I am not interested in a close reading to comment on what I see as flaws in the model’s description. I will point out, however, that the interested reader would do well to dismiss the definition of “recognition” as it is incorrect. What interests me more is why misunderstanding about transformative mediation persists, 15 years after publication of the first edition of Bush and Folger’s seminal work and five years after the revised edition was released. read more…
Justice Harvey Brownstone
We recently featured a video clip of an interview with Justice Harvey Brownstone of the North Toronto Family Court in which he brought to life the principle of acting in the best interests of the child. Here now are his 10 tips for success in resolving parenting disputes from his book, Tug of War: A Judge’s Verdict on Separation, Custody Battles and the Bitter Realities of Family Court:
- Be child-focused
- Learn to distinguish between a bad partner and a bad parent
- Never speak negatively to the child about the other parent
- Never argue or fight in front of children
- Listen to the other parent’s point of view even if you don’t agree with it
- Consider mediation before giving the decision-making power to a judge (emphasis added)
- Separate your financial issues from your parenting issues
- Be flexible and reasonable in making access arrangements
- Your children still see you as a family, so communicate!
- Don’t hesitate to get help (emphasis added)
This list of advice is taken from Chapter 13 of Justice Brownstone’s book. You can read Justice Brownstone’s commentary on each of these tips by clicking here for a book excerpt.
Justice Harvey Brownstone serves on the North Toronto Family Court and is the author of Tug of War: A Judge’s Verdict on Separation, Custody Battles and the Bitter Realities of Family Court. Below is a 16 minute video clip of an interview of him on TV Ontario’s The Agenda – With Steve Paikin.
One of the trenchant observations made by Bush and Folger in the transformative practice literature is how much mediation theory has relied on the negotiation paradigm to conceptualize itself. In place of this paradigm, Bush and Folger offer communications theory and relational ideology as the framework for thinking about conflict and mediated conversations to deal with it.
Here is an excellent example of the use of the communications paradigm in analysing the degenerative and generative spirals that commonly take place in conflict. It’s a piece by Dorothy J. Della Noce that has been published in the second issue of the Dutch journal, Conflictinzicht.
The bad news is that a negative conflict spiral takes on a life of its own, as people get caught up in the momentum of the developing pattern of interaction. The pull of the pattern can feel quite powerful, explaining why people would report feeling trapped or stuck in a conflict cycle. The good news is that, just as a negative or destructive conflict spiral is built through communication, the direction of the spiral can also be reversed through communication. Bush and Folger call these positive changes in the direction of the conflict spiral interactional shifts (2005, pp. 66-83).
Shifts happen as the parties recognize the negative conflict spiral and take steps to reverse it. [...] read more…
(H/T: Shelly Harvill Kamm)
As a mediator, I’m particularly interested in how I can support a client to get clearer about their conflict situation (in the transformative mediation framework, empowerment) as well as about how the other person sees things (recognition). As a conversation between the parties proceeds with these objectives firmly in the mind of the mediator, the parties will confront issues both of a process and substantive nature that are for their decision. Ultimately, they sometimes reach a decision to settle and other times not, but outcomes other than decision are often of value in clarifying understandings about the conflict and insights about the other. But sometimes, parties to a mediation can’t even get to the mediation table, or if they do, their case can’t be mediated.
It was with these thoughts in mind that I read a post from Toronto family lawyers Andrew Feldstein & Associates. The post summarizes the situation of a couple with a very volatile relationship who separated in 2007. The mother was seeking sole custody of their child while the father was requesting joint shared custody. “[A]s pointed out by the Ontario Court of Appeal in Ursic v. Ursic, ‘one cannot be the instigator of high conflict and then argue in favour of sole custody’.” Read the post in its entirety here.
HHTDL
