Sat 19 Jan 2013

What Has This Got To Do With Mediation – Part 1

Posted by Heverton.Oliveira

Two things are happening as I grow older: I can’t keep as many things in my head at once and I seem to want to make connections between everything!  

I try to read widely and keep up with current events and I’m increasingly struck by ideas and lessons in one area that are applicable to my main areas of interest:  conflict resolution and leadership. So, I’m starting a series of posts that connect the dots between a variety of topics and mediation. I hope they are helpful!

My first post links mediation with the need for thoughtful and comprehensive legal services.  I have a background in legal services management and I still try to keep up to date on law practice management and innovation topics (thank you David Bilinsky, Jordan Furlong and Mitch Kowalski to mention a few Canadian experts!).

A key question in this area is “what do clients want from their legal counsel”?  In the “old world” litigation counsel handled each case to resolution…period, and then hoped for more work from that client.  Skillful lawyers today do at least two more things:

• Seek performance feedback from the client (throughout as well as at the conclusion of the matter); and
• Provide analysis and systemic suggestions to clients such as:
  • What went wrong to cause the dispute?
  • What changes could be made to improve things in the future and to avoid similar situations? and
  • Once the dispute arose, in what ways could the handling of the dispute have been improved (by the client and the law firm)?

If the law firm has a volume of business with the same client, it is in a unique position to identify trends and hot spots.  The law firm can think of the bigger picture from the client’s perspective rather than just on a case by case basis.  This is real value added.

Paul Lippe, CEO of OnRamp, says in an interview with the CCCA magazine Fall 2012 at page 38:

For example, they (law firms) could say:  'You'll pay us $700,000 a year or $2-million and we'll handle all your employment problems.  And every time we work on an employment problem, we go back to you and say;  Here's the three things that led to that problem.' Or "we've noticed that [the company] has 114 managers in Canada but 80 per cent of your employment problems are associated with two or three people.'  But that kind of systemic view is very rare in law firms.

So just what has this got to do with mediation?

Bernie Mayer suggests that there are many roles that conflict specialists can play in working with clients including coach, advocate, trainer, mediator, arbitrator etc.  These principles can play out in different ways depending on the role.

Mediators often work with the same client groups (insurance disputes, employment disputes, labour/management negotiations, etc.).  They are often, but not always, institutional clients.  Mediation provides unique opportunities to focus on interests and underlying goals which often reveal sources or causes of conflict.  Mediators are well positioned to assist parties to consider systemic issues such as business processes, policies and workplace culture that may have contributed to the conflict and may hold the key to its resolution.

Mediation is, of course, a confidential process.  However, the mediator can, usually in caucus, help clients to better understand their part in the conflict which leads naturally to a consideration of what could be improved in the future to avoid ending up in the same escalated dispute.  Whether you call this conflict coaching or conflict analysis or conflict systems design is irrelevant.  It is an important value added piece for clients.

Perhaps the mediator's coaching is focused on the counsel participating in the mediation process - encouraging them to take these lessons learned back to their firms and, more importantly, back to their clients.  As Paul Lippe says (also at page 38):

It's great to be a brilliant brain surgeon, but I think the world needs more people who can run big health systems and make sure people stay healthy.

This reminds me of Richard Susskind's challenge that we need more fences at the top of the cliff than ambulances at the bottom!

And this doesn't just apply to institutional clients.  A skilled family mediator will be modelling good communication skills and coaching clients to deal more effectively with each other because, especially when children are involved, divorcing spouses will remain parents and need to know how to deal well with each other for years to come.

Mediators can be the lubrication to help these important conversations happen.  If one of the ways to improve access to justice is to empower people (clients) to deal well with their own conflicts then mediators can play a key role in ensuring that they have the benefit of the mediator's insights and strategic analysis.

Guest blogger Kari Boyle is the Executive Director of Mediate BC.