Thoughts from a Management Lawyer

Judicial Mediation from "Across the Pond"

Thanks to Laurie Anstis an associate solicitor practicing employment law at UK firm Boyes Turner who wrote following my post Ontario’s chief justice discusses judicial mediation to say that a judicial mediation in employment cases pilot project was undertaken in three regions of England – Newcastle, Central London and Birmingham. 

The official report, Evaluating the use of judicial mediation in Employment Tribunals, recommended that judicial mediation be discontinued in these cases.  Specifically, while acknowledging some positive feedback, it was observed that:

However, we could find no discernable, statistically significant effect for the impact of judicial mediation on (i) rates of cases settled within a set time period or (ii) resolution that avoids a hearing. Outcomes from judicial mediation were not significantly better (statistically) than those from a matched control group of unmediated cases that expressed an interest in mediation. The rate of cases resolved without a hearing was:

❑    57% for mediated cases;

❑    61% for unmediated/interested cases; and

❑    54% for unmediated/uninterested cases.

The Report concluded that:

Based on the findings of this study, judicial mediation was an expensive process to administer and cannot be offset by the estimated benefits (both direct and indirect) of the process. Therefore, it was not recommended that the service be rolled-out to other areas of the ETS in its current form.

I am not familiar with the manner in which employment cases are dealt with or processed in the U.K. (I note that the pilot was for Employment Tribunal "discrimination cases started between June 2006 and March 2007"). In Ontario, discrimination cases (typically) are dealt with at the Ontario Human Rights Tribunal where mediation by Vice-Chairs is part of the process and is quite effective in many cases. 

That said, the Report is tremendously valuable as we consider, in this province, embarking on some form of judicial mediation. 

Thanks Laurie for the information.

Ontario’s chief justice discusses judicial mediation

The Lawyers Weekly reports that Ontario’s chief justice calls for judges to expand their role as mediators. Chief Justice Warren Winkler (who, while in practice, was, hands down, one of the top management side labour lawyers in the country) has proposed a "cultural-shift" that would see judges conduct more mediations in civil lawsuits (called in the article "judicial mediations".  

As is acknowledged in the article, there are many hurdles that will have to be navigated before judicial mediation is launched (if at all).  I too think it is worth exploring.  

According to the article, Chief Justice Winkler's remarks will be published this fall in The Advocates’ Journal and I very much look forward to reading them.

Chief Justice Winkler has previously discussed mediation and touched on judicial mediation in Access to Justice, Mediation: Panacea or Pariah? (Published in 2007 Canadian Arbitration and Mediation Journal 16 (1):5-9).  

Are Mediators Protected by "judicial immunity"?

"Discourage litigation. Persuade your neighbors to compromise whenever you can. Point out to them how the nominal winner is often a real loser -- in fees, expenses, and waste of time. As a peacemaker the lawyer has a superior opportunity of being a good man. There will still be business enough."  Abraham Lincoln's Notes for a Law Lecture

Mediation can be a cost effective way of dealing and, ultimately, resolving many employment disputes.  Whether claims brought to the courts or under some statute (e.g. the Human Rights Code, Employment Standards Act or Labour Relations Act), mediation allows the parties to avoid the harsh "win/lose" that results whenever a third party adjudicator "has the pen" and will decide who was right and who was wrong. 

But to be truly effective, mediation must be entirely confidential and there must be safeguards built in to protect the parties and the mediator in order to allow an open and honest discussion about the strengths and (gasp) weaknesses of the case. 

The parties will be required to sign, in most cases, some form of confidentiality agreement. ForPublish example, under the Ontario Human Rights Tribunal's Rules of Procedure, the parties to a mediation under the Code "must sign a confidentiality before the mediation commences".  Furthermore,

"All matters disclosed during mediation are confidential and may not be raised before the Tribunal or in other proceedings, except with the permission of the person who gave the information."

Again, the parties must not feel that they have to hold back in mediation because what they say "can and will be used against them" if the case doesn't settle.  Fair enough, but what about the mediator?

The issue was recently considered in a case before the Ontario Human Rights Tribunal.  In this case, the applicant filed a human rights complaint as a result of comments allegedly made by a mediator in the context of a mediation conducted in the context of motor vehicle accident lawsuit.  The applicant alleged that the mediator made certain comments during the mediation.

The issue before the Tribunal was whether the doctrine of judicial immunity applied to the Application and to the mediator. 

In Hazel v. Ainsworth Engineered, the Tribunal determined that the doctrine of judicial immunity applied to protect arbitrators and mediators from human rights claims arising out of the exercise of their decision-making and dispute resolution functions.  The Tribunal noted:

With respect to mediators, I find that immunity extends to protect the mediator from claims arising from the exercise of his or her functions in assisting the parties in reaching a resolution of the dispute, and in facilitating the settlement discussions. .....

The touchstone for the application of immunity is to ensure independence of the decision-making and dispute resolution process.  Immunity applies to those functions that can legitimately be said to be integral to that process, and to the effective exercise of the duties of the arbitrator or mediator. 

After referring to the mediation agreement, the Tribunal concluded that the allegations against the mediator arose "out of the exercise of his functions as mediator in facilitating settlement of civil and/or statutory claims," and, as such, "I find that he is covered by immunity".  In the end the the application was dismissed as against the mediator.

Welcome to the Blogosphere - Workplaces that Work

I found out yesterday that Blaine Donais, who works at the Society of Energy Professionals, has started a blog called Workplaces that Work.  You should also check out Blaine's book Workplaces that Work - A Guide to Conflict Management in Union and Non-Union Work Environments.  This looks like an interesting book and one that certainly fills a void.  I'll be adding it to my library. 

I mentioned to Blaine yesterday that I will be writing more book reviews on this blog.  If you have authored a book that you'd like reviewed here or if you want to refer me to a book that you liked, please let me know. 

Does the Timing of Mediation Matter?

The September 15, 2006 issue of The Lawyers Weekly has a "Focus on Alternative Dispute Resolution".  There's a good article by Allan Stitt of Stitt Feld Handy Group called "When is the Best Time to Mediate?"  After reviewing the concerns raised about early and late (ie. after discovery) mediation Mr. Stitt concludes:

Generally though, in my experience, early mediation produces better results for clients than later mediation because so much less has been spent on legal fees.  This is true even where decisions are not as informed as they would be after discovery.

It is true, of course, that legal fees are, typically, less early on in the process, and this should be an incentive to try to get a deal sooner than later.  I also agree that, in many employment cases, lack of full and complete information should not bar an early mediation.

But, more importantly than fees and information, I think, is to ask, in every case, whether the timing makes sense in the unique circumstances of the case?

What do I mean by that?  Although many employment cases (so-called wrongful dismissal cases for example) are legally quite similar, they are each unique at the emotional level. 

And the emotions go beyond the employee.  The spouse, the family, the friends, all, to varying degrees, are involved and invested.  Similarly, the employer can have an emotional investment in the termination.  For example, the employer might have spent months trying to turn a poor performer around, only, she feels, to have had these efforts thrown back in her face.  There are so many variables at play, even in the relatively straightforward termination case.

Sometimes, the parties just aren't ready to settle.  Mr. Stitt says that "... strong emotions do not prevent settlement.  Emotions need to be expressed, heard, understood and appreciated.  Then the right decision needs to be made."  He suggests that "mediators have the training and, we hope, the skill to deal with raw emotions, so that should not prevent us from mediating early." 

I have been involved in early mediations that did not result in a settlement.  Sometimes, for example, despite everyones efforts (including the highly experienced mediator), the employee could not get beyond the "I want a pound of flesh"  mindset.  I leave those mediations wondering whether the result would have been any different if we had delayed the mediation, for a while, to put some distance between the termination and the settlement discussion and, also, to give the employee some time to "land" on her feet, in another job?  There's nothing quite like another job to change the focus. 

So, yes, minimizing legal fees is extremely important in deciding when to mediate.  But, you generally get "one kick at the can", so you need to feel comfortable, before committing to early mediation, that the parties are in a place where settlement is a reasonably probable (or at least possible) outcome of mediation.  If you mediate early, but fail to settle, you've probably blown your chance while, at the same time, simply driven your costs from the middle or back end of the litigation, into the front.

Anyone who knows me will attest that I am a huge proponent of mediation and ADR, generally, in labour (ie. union) and employment (ie. non-union) matters.  My point here is simply to stress that careful consideration should be given to the timing of mediation.  As Mr. Stitt says, generally, and assuming all goes well, the earlier the better, so far as cost savings are concerned.  But there's no sense going to a mediation early, staring at each other for awhile and then leaving without so much as a hint of a settlement. 

Increase your odds of settling by asking the tough question: "are the parties ready to settle?" before committing to early mediation.   Unquestionably, there's a certain amount of guesswork that goes into answering the question. Better to guess at the answer, than rush into an early mediation that didn't have so much as a glimmer of a chance of success.

Mr. Stitt is, without question, one of the most respected and experienced mediators in the country and I would encourage you to read his article. 

Characteristics of the Great Negotiator

From the Settle It Now Negotiation Blog comes a post on What Makes a Great Negotiator.  I have only recently discovered this blog, and have really been enjoying it. 

When is Mediation Not Confidential

One of the most important features of mediation is that it is confidential and, as such, the parties should feel comfortable in expressing their views freely and without fear that the other side will be able to subsequently rely upon those statements. 

However, there's an by Shawn Kirby in Philips Fox New Zealand Employment Bulletin, June 2006 (you'll have to scroll down to get to the article) that discusses the limits on confidentiality in mediation and the rare circumstances where "confidentiality" will not prevail under the New Zealand statute.  For example, confidentiality will not shield or protect statements in mediation that are not genuinely made for the purpose of resolving the dispute. 

Priceless "ADR" Story from Florida

Ross Runkel and Diane Pfadenhauer have posts about an ADR "schoolyard" style!  Ross' summary of the decision:

"A federal District Judge in Orlando, Florida has ordered litigants to use "rock, paper, scissors" to resolve a dispute over where a deposition will be held. An ancient form of ADR - alternative dispute resolution."

The Court describes the motion as "the latest in a series of Gordian knots that the parties have been unable to untangle without enlisting the assistance of the federal courts".   I suspect there's more to this story.

I think this is priceless.

Congratulations to Diane Levin of Online Guide to Mediation

Congratulations to Diane Levin on being recognized by the National Institute for Advanced Conflict Resolution for her outstanding blog Online Guide to Mediation.  I've been a long time reader of Diane's blog and this acknowledgment is certainly well deserved.  If you haven't already, check out Diane's blog.

Test Your Mediation Style

Diane Levin of Online Guide to Mediation has a post called MATTER OF STYLE: New conflict style test is ready for downloading in which she refers to a number of test that you can take to determine your conflict style and to a publication.  If you're interested in these tests, check out Diane's post Test of character: using instruments to probe conflict styles and moral intuition.  I referred to Diane's earlier post at Some Random Thoughts on Mediation Style.