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The role of a mediator is often misunderstood. Similarly, the roles of counsel, parties and other advisors may be unclear. Too often mediation is viewed as something that is being done to the participants rather than done with them. This can result in fuzzy or muddled expectations, and ultimately a failed process. Over time this lack of clarity can lead to counsel skepticism and resistance to mediation proposals.

In my experience most veteran mediators have a personal stand, an inner mantra about who they are and how they act when mediating. Mine follows: “I strengthen the fabric of goodwill and cooperation that exists in the world by helping people and organizations have difficult conversations and resolve conflicts.”

This keeps me grounded and purposeful when the emotional furnace that is so often at the center of conflict heats up. Think of a hockey game when the linesman blows down a very close offside at a crucial point in the game. That’s just ‘what happened’The drama and potential conflict arise as fans bring meaning and emotion to the ‘right and wrong’ of the moment.

To engage fully with my inner guidance I am motivated to begin every mediation referral with a design conversation. As I mentioned in my first newsletter, The Nature of Conflict, “one size does not fit all”. It follows that something this important to the immediate well-being of the parties deserves to be properly designed and properly understood.

Let’s start with what I find is a useful working proposition for a successful mediation process.

“A mediation is most likely to succeed when the right parties, armed with the right information, are committed to participate in a facilitated dialogue about their past in search of a future solution for the issues that matter most to them. “

During a mediation, ‘Dialogue’ is what occurs when we share our stories about our past and its meanings, while exploring together our underlying interests and needs and those of the other parties. ‘Debate’   on the other hand, is about more than right, wrong, fault and blame in service of winning. It is a joint search for a legitimate legal framework for resolution.

In mediation parlance, this can show up as the distinction between facilitative mediation and evaluative mediation and is often part of counsels’ discussions about who should be their mediator and what their clients need from the mediation.

Mediation works best when all the parties considering mediation understand the process in which they are being invited to participate. The mediator and counsel can collaborate to determine the right balance between facilitation and evaluation. The parties can have meaningful input into their own role and that of their counsel or advisor. They can be encouraged to take more ownership of their process and they can be introduced to the distinction between ‘what happened’ and ‘what they made it mean’. This design conversation will also address the right time, the right parties, the right Information, as well as practical matters such as confidentiality, mediation briefs, costs etc.

I have been mediating for 30 years and, the more attention I devoted to the “Design With Not For” model, the more I experience empowered and effective participation by all those involved in the process. This in turn led to increased willingness by participants to let go of the past and its roadblocks and barriers to creative solutions for the future.

Let me give you a couple of examples. They have been modified to protect confidentiality.

I was retained to mediate a dispute between an organic farm operation and an Oil and Gas company that had suffered from a sour gas plant H2S release. This triggered an emergency response plan that absolutely overwhelmed and panicked the family and resulted in ongoing psychological trauma that prevented the family from residing in their home. Efforts to resolve matters stalled amidst legal issues of causation and liability as well as very divergent beliefs about the facts and what they meant to each side.

Our design conversation resulted in a two-part process:

1st A recently retired Justice of the Court of Queens’ Bench with specific expertise was retained to provide an opinion on the legal framework for the mediation. 2nd I facilitated a day long mediation session that explored what actually happened, what it meant and what was really most important for the parties’ future. On the basis of that shared understanding and equipped with the legal opinion the parties were able to find a creative resolution that addressed both sides’ interests. Both agreed that closure and privacy were key factors and the family reported experiencing a return of control over their lives. It was truly a win-win, if only because both sides had equally compromised.

The second example did not arise from litigation and lawyers were not yet involved in the conflict. This family was very wealthy but becoming increasingly dysfunctional. The father and son were fighting over control of the family business operations. The son’s wife, in support of her husband, prevented the grandparents from visiting their young grandchildren. Both parents had ongoing health issues. The daughter and son also shared a long history of animosity beginning with apparent school yard bullying and leading to their current disdain for each other’s lifestyle choices and a complete breakdown in communication. The daughter’s passion was for global adventure and environmental causes affecting the earth’s oceans. She had no interest in the family business and refused to participate.

A skilled family enterprise advisor had worked with the family members, and with the assistance of experts in business and tax planning, created a business transition plan. The son saw the plan as an attack on his capabilities to run the business and refused to participate. His sister saw the plan as unfairly favoring the brother. All communication in the family broke down for more than a year which also began to have serious negative consequences for the family enterprise.

A mutual friend suggested that the family try mediation and then referred them to me. I connected with each of them individually by phone to share the idea of designing a unique mediation process. With their agreement I conducted individual design meetings where I explained the mediation process, discussed my role and then worked through the distinction between ‘what happened’ and ‘what they made it mean’. I listened intensely to each member’s stories and began a shift from right and wrong to a greater awareness of their interests and needs, as individuals, as a family and as a business.

We agreed on a two-day mediation session with the business issues to be set aside until the family had shared their stories for understanding. They all agreed that I would have the ‘referee’s whistle’ and would therefore be empowered to keep the dialogue on track and on what really mattered in their hopes for the future.

They all agreed that it was a very tough couple of days. At times it was extremely messy and painful. Their experience was not instantaneous peace and reconciliation for almost 20 years of familial issues. It did however result in a heartfelt promise to rebuild their family with a shared vision of the future and a commitment to effective communication and collaboration.

With the excellent foundation already set by the financial experts, the family was able to agree to a business and asset transition plan in a couple of hours at the end of day two. Of particular note were the arrangements made between the daughter and the son for the enterprise to provide substantial financial support to the daughter’s environmental initiatives.

On a more personal and emotional note, during the ride to the airport for my flight home the Father thanked me profusely for “saving his family”.

If you would like to receive more articles like this in the future, please sign up for my monthly newsletter by visiting my website: https://www.davidgouldmediation.com and entering your email into the prompt at the bottom right hand corner of the page.

Your questions and comments are welcome and appreciated.

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David Gould (LLB, QC, C Med) has helped hundreds of lawyers and their clients – business and government organizations, and individuals – in conflict situations to co-create solutions for the future. For more information, contact: david@davidgouldmediation.com or visit www.davidgouldmediation.com

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