Why it’s a bad idea for mediators to give advice

Posted on January 23, 2012 by

Distinguished educator and mediator, Tammy Lenski, is celebrating the tenth anniversary of her blog, Conflict Zen.  As part of that celebration, she wants to highlight some of her favourite posts and articles over the years.  One that caught my eye is entitled, Giving advice is a problem-solving crutch.

In it, she recalls a basic mediation workshop that she co-led at the time that had one rule for its participants: no advice giving.  The rule is especially difficult for those participants who have been trained to provide advice to their clients, such as lawyers, social workers, and others.

Tammy then sets out a number of reasons why she refrains from giving advice to mediation parties after they’ve told their respective stories:

  • It would be arrogant of me to assume I understand the complexities of their lives and minds sufficiently well to know that my advice is what’s best for them. They know themselves far better than I ever will.
  • I could easily insult my clients. If it were such an easy or obvious solution that a mediator (or co-worker or boss) can see it, they probably wouldn’t be stuck in the conflict. Complex problems usually call for less obvious solutions.
  • When I’m mediating (or when you’re supervising), I have power I can misuse, even inadvertently. It’s too easy for a participant to assume my expertise is best and to give up control to my ideas. People may say “yes” without fully considering the implications ‘til later. Or they may well know the implications, say yes anyway, and then the advice is ignored or avoided.
  • Most of us, including me, tend to follow through better on ideas that are our own. Whether you call it buy-in or ownership, the chances of an agreement lasting are greater when a solution isn’t imposed.
  • When I give advice, I risk becoming too enamored of my own creativity and brilliance. When I do that, I’ve started to make the mediation a platform for my own power and knowledge instead of a place for folks to tap into their own.

Many of these points resonate with the transformative mediator’s approach of following the parties, rather than leading them, in the conversation they actually wish to have with each other.  We believe that a process that is driven from the bottom-up, with interventions by a skilled practitioner, is much more likely to have a positive impact on the quality of the parties’ conflict interaction than a process that is driven from the top-down by the mediator.

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Canadian Same-Sex Marriages of Non-Residents May be in Doubt

Posted on January 12, 2012 by

In responding to a court application for divorce of a same-sex couple married in Canada, a federal government lawyer has taken the position:

  1. Non-resident couples who marry in Canada “must live in the country for at least a year before they can obtain a divorce“; and
  2. Canadian same-sex marriages are only legal if they are legal where the couple resides.

In this particular action, one of the parties lives in Florida and the other in the United Kingdom, and could not have legally married in either of those jurisdictions.

The implication is that many of the same-sex couples who travelled from abroad to Canada to marry since 2004 are not legally wed.

The mechanics of determining issues such as tax status, employment benefits and immigration have been thrown into legal limbo.

Read the entire news report of this case on-line in The Globe and Mail.

Posted in Canadiana, Family Law, Same-Sex | Tagged , , | Leave a comment

Is Mediation Confidential in Ontario?

Posted on January 2, 2012 by

As Rick Weiler notes in a December 22 post on the Kluwer Mediation Blog, the issue of mediation confidentiality “arises before the Courts from time to time and we are fortunate to have the recent, well-reasoned decision of Madam Justice J. Mackinnon of the Ontario Superior Court in Johnston v. Locke et al.”

The ruling was on an objection to the admissibility of an email written by a party during an ongoing mediation. The Court ruled, correctly in my view, that the communication was covered by settlement privilege and therefore inadmissible. The decision provides an excellent summary of the Ontario law in this area as it stands today and rather than paraphrase it, I urge you to read the full decision [...]

Following Rick Weiler’s advice, I will not attempt to paraphrase the decision either, all the more so because I am not in any sense qualified to do so, not being a lawyer myself.  I would simply note that one of the matters dealt with in the decision is the jurisprudence on settlement privilege as a class privilege, and as a privilege that is established on a case-by-case basis.

The difference in approach affects the burden of proof. If mediation is part of the settlement privilege, the party seeking disclosure must establish that the circumstances fall within an exception such as to prove the existence or terms of a completed settlement agreement. On the other hand, with a case-by-case privilege approach, there is a presumption of disclosure unless the party seeking privilege can establish that the Wigmore criteria have been satisfied.

Justice Mackinnon rules that “[a] case by case analysis does not adequately support the policy underlying settlement privilege”, and she cites a summary of the policy interest:

§14.313   It has long been recognized as a policy interest worth fostering that parties be encouraged to resolve their private disputes without recourse to litigation, or, if an action has been commenced, encouraged to effect a compromise without resort to trial.

§14.315   In furthering these objectives, the courts have protected from disclosure communications, whether written or oral, made with a view to reconciliation or settlement. In the absence of such protection, few parties would initiate settlement negotiations for fear that any concession they would be prepared to offer could be used to their detriment if no settlement agreement was forthcoming. (In Bryant, Lederman, & Fuerst, The Law of Evidence in Canada, 2009, p. 1030)

Again, as Rick Weiler urges, the full decision should be read.

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Listening like a dog

Posted on December 28, 2011 by

In transformative mediation circles, we often speak of ‘listening like a cow’.  (See my two previous posts on this quality of attention here and here.)  In brief, this simile is referring to the type of listening that is non-judgemental while not being internally busy as to what to say in reply to the talker; it’s about presence and attention to whatever it is that the talker is saying, verbally and non-verbally.

Diane Levin

Here’s an excerpt of a wonderful story by Diane Levin of what she describes as “one particularly miraculous mediation”:

Just hours before their meeting with me, the wife called to ask if they could bring their dog with them. “He’s very sweet and well-behaved,” she said, “and I think we’d both feel better if he were there with us.” An animal lover myself, I had no objections and encouraged her to bring the dog along. [...] their dog [...] curled up in the corner of my conference room with his head on his paws. He didn’t close his eyes but remained watchful, looking from one of his humans to the next.

The mediation began. [...] Not surprisingly, the discussion became emotional. First, the wife raised her voice, pressing her case against the husband’s proposal. The dog suddenly stood up from his corner, strode to the wife’s side, sat down beside her and leaned against her, resting his head in her lap. She stroked the dog’s head, and her voice assumed its normal tone. After a few minutes, the dog returned to his corner. Soon it was the husband’s turn to become agitated, and as the volume of his voice began to rise, the dog once more stood up, came to his side, leaned against him, and rested his head in the husband’s lap.

And so it went. Sensitive issues were raised, one spouse or the other became upset, and time and again, there the dog would be, leaning against the person who needed his comfort most in that moment, the great furry head resting upon a knee. The moment would pass, clarity would come, the anger would evaporate, the discussion would progress, and back the dog would go to his corner.

We took up a particularly difficult issue next.

[...]

[...]

As I was about to speak, I felt something warm and heavy lean against me. I looked down, and there was the dog, his head resting in my lap this time, looking up at me with his dark brown eyes. Evidently this time I was the one who needed support, at least in the judgment of this wise dog.

The husband and wife both stopped in mid-sentence, their voices falling silent. In amazement, they gaped at the dog with his head in my lap. Then, tension broken, they each smiled, shaking their heads. In an instant, the moment had changed. They were laughing now. “How about if we…,” said one. “Great idea,” said the other, “how about if we also…”

A few minutes later, they were standing up and hugging each other, the most difficult issues addressed to their mutual satisfaction. Their dog bounded about the room, his tail wagging.

When seen through the lens of a relational perspective, what happened here was distinctively human.  The relational view of human nature sees people balancing needs for individual autonomy with needs for connection to others.  The pure act of listening, whether by the trained conflict specialist, or, in this case, the dog, allows the participants to shift from agitation to calmness, to experience differences in how they see themselves and each other.  This movement, in turn, allows the participants to move beyond their negative, unproductive interaction to make the decisions they each want to.

You can read Diane’s entire post here.

Posted in transformative mediation | Tagged | 1 Comment

Varying Spousal Support Arrangements

Posted on December 22, 2011 by
English: Supreme Court of Canada building, Ott...

Supreme Court of Canada (Image via Wikipedia)

The Supreme Court of Canada handed down two decisions yesterday that “ruled spousal support arrangements can only be changed if the spouse who is paying can establish a genuine, significant and unexpected change in circumstances“.

Professor Nick Bala of Queen’s University, a well-known family law expert, says:

In these tough economic times, these are important decisions and this is significant. The rulings emphasize the importance of careful consideration before a separation agreement is signed. In particular those who agree to pay spousal support will have real difficulty is seeking a reduction if their financial situation changes.

There’s more information about these decisions in this report in the Globe and Mail and associated links.

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Some Thoughts on Regret

Posted on December 2, 2011 by

Watch this 17 minute Tedtalks video of Kathryn Schulz talking about regret and why it’s not such a bad thing after all:

Posted in intellectual life, interconnectedness, Psychology | Tagged , , | 1 Comment

Polygamy, Serial Monogamy, and Support Arrangements

Posted on November 24, 2011 by

William Leckey, Associate Professor of Law, McGill University

In the wake of Wednesday’s decision by the Supreme Court of British Columbia upholding the constitutionality of the Criminal Code’s ban on polygamy, the Globe and Mail today publishs an interesting commentary by McGill University law professor, Robert Leckey.

Leckey points out that there’s an interesting parallel in terms of economic impact as between polygamy and mainstream forms of marriage.

[...] men in polygamous unions may have more children than they can support and may induce economic dependence in more women than they can support. The result is women and children with insufficient resources.

While polygamy may be likelier than other arrangements to lead to more dependants than a breadwinner can support, the problem of unmanageable support duties is widespread. It often arises when someone still supporting children and a spouse from a former relationship assumes new family obligations.

[...]

[...] divorce makes it socially acceptable for men to remarry and have more children while the first wife is still living. Divorce also makes it more likely that a man may become the breadwinner for one woman, while still supporting another made dependant by a previous union.

The key difference between polygamy and the successive families enabled by divorce is timing. Polygamy leads to multiple wives and children simultaneously. Divorce leads to multiple wives and children sequentially. The economic problem in both cases is multiple dependencies and the need for support at the same time.

The increased social acceptability of unmarried cohabitation has made successive families even easier, as repartnering no longer requires the formalities of divorce and remarriage.

Leckey poses the trenchant question when will Canadian law and policy catch up to the reality that many Canadians have multiple living partners (albeit sequentially) and that many Canadian children have more than two parental figures in their lives.

Read his entire commentary here.

Posted in Family Law, Parenting | Tagged , | 2 Comments

How to argue with teenagers? Know when to stop!

Posted on November 4, 2011 by

Anthony E. Wolf

I’ve had occasion in the past to favourably cite psychologist Anthony E. Wolf, the parenting columnist at The Globe and Mail.  In this morning’s paper, he discusses what he calls the No. 1 day-to-day mistake parents of teens make: not withdrawing from the argument.

The problem is simple. With the great majority of teens, if they are not getting their way, anything that their mother or father says – anything – just pours fuel on the fire. They will argue and cajole and complain forever. (And I do mean, forever.) That is, unless the parent says, “I give up. You win. I’ve changed my mind.”
The greater wisdom is that once you take an unpopular stance, and if after a brief discussion, you haven’t changed your mind, it’s best to say what you have to say – and then nothing further.

He then sets out a few reasons why parents fail to heed this good sense and stop arguing.

1.  The compulsion to make the teen change her mind and see things the way the parent sees them.

That is not going to happen.

The obvious fallacy is that it is what you do – not what you say – that matters. They learn their persistent arguing bears fruit, or that it does not. That is the only lesson.

2.  Parents feel they can’t let their teens get away with backtalk.

The point of backtalk – the reason they [teenagers] do it – is that they’re mad they’re not getting their way, and they want to bully you into changing your mind. If you respond, their backtalk will have succeeded in keeping the argument going – and you will get more backtalk. Conversely, if there is no response, it renders the backtalk pointless.

3.  Seeing the world in terms of win/lose contests.

“I can’t let her get in the last word. I just can’t. She’ll win. That’s not right. I’m the parent.”

[...]

But when you disengage and they keep going, it does feel as though you’re the winner. At least it feels like you’re the parent.

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Transformative Mediators Establish Network in Quebec

Posted on October 31, 2011 by

John Peter Weldon

John Peter Weldon is a Quebec-based Certified Transformative Mediator™, lawyer, and trainer for the Continuing Legal Education Service of the Quebec Bar (Le Barreau du Québec).  He recently announced the creation of the Réseau pour une approche transformative du conflit (Network for a Transformative Approach to Conflict).  The network numbers 50 predominantly French-speaking professionals, among whom are  mediators, labour arbitrators and conciliators, HR directors and consultants, management and union representatives, workplace bullying investigators, collaborative lawyers, law professors, an ombuds, a retired judge, and the vice-dean of a medical school.  All have received basic training in transformative mediation and have chosen to nurture and develop a transformative dimension to their practice.

From the news release announcing the establishment of the Network:

Based on the values of co-development, mutual support, and outreach, the new network is slated to play a major part in helping to make the transformative option available in the French-speaking world, not only in Canada, but also in France, where mediator and trainer Marianne Souquet has become the network’s first overseas partner.

[The Network's objective is to begin]  to provide the critical mass necessary to support the public’s freedom to choose the type of professional best suited to help them through a conflict (emphasis in original).

A tip of the hat to John Peter for this important initiative and best wishes for the success of this Network.

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What it takes to be a Mediator?

Posted on October 26, 2011 by

Here’s a video taken from a June 2011 training by Certified Transformative Mediator™, Louise Phipps Senft of Baltimore, on the characteristics of a mediator:

Posted in transformative mediation | Tagged | 1 Comment