We’ve often heard ‘change is the only constant’. Canadians are now in the grips of this global pandemic. We are certainly experiencing massive change by degree as our daily lives are significantly affected by this serious public health crisis. Moreover, change by nature is very much in the forefront of our collective thinking as professional mediators seek to influence creative innovations in the family justice system going forward in the 21st-century. Based on our demonstrated success from our past experience and current capacity, in the context of sweeping technological advancement, Family Mediation is positioned to effect meaningful impact on Canadians’ short term needs as well as endemic access- to -justice issues. As such, you will definitely be hearing more about retooling our private and public systems to online dispute resolution (ODR) by fully endorsing the promise of mediation. To quote Susan Acland-Hood, Chief Executive of HM Courts & Tribunals:”our processes don’t need to be as old as our principles”.
The mark of any professional mediator is to respond as opposed to react to any given circumstance . So before we take two steps forward into the future of ODR and e-mediations, let’s consolidate a healthy understanding of our professional ground zero. Internet platforms, computerized word processing, digital accounting, social media, e-marketing and indeed, that electrical outlet are all variations on a theme. The bedrock is mediation itself which is informed by mediation theory and practice. Mediation is the existential theme; it is our purpose-telos. Virtual technology becomes it’s application. However, at all times, we must be cognizant to recognize underlying mediation theory in building new ODR structures. Let’s not have ‘the tail wag the dog’.
Re-dedication to the guiding principles of mediation
What lies behind us and what lies before us are tiny matters compared to let what lies within us -Oliver Wendell Holmes
Let’s reflect on the difference between ‘doing’ and ‘being’. You are a professional family mediator-that is your purpose. The opportunity is to use and now expand your skills in the new reality of electronic mediation. Mark though, that is not as separate reality. As they say, ‘wherever you go there you are’. Perhaps you prescribe to the Hazel Genn casting of mediation that the outcome is not about just settlement, it is just about settlement or adhere to the seminal philosophy of The Promise of Mediation. (Footnote #1) Regardless of your particular philosophical persuasion, we stand or fall together in a joint and several dedication to the ethical standards of professional family mediation.
The prime directive, of course, is self determination. Self determination supports our detailed and dedicated adherence to the guiding principles of impartiality, neutrality,confidentiality,fairness and safety.
In any in all cases and particularly with respect to the novel experience of online mediation, your mediator’s ethics scan is on full alert. You cannot function as a professional third-party neutral without this constant ethical awareness and remain in reliable mediation service delivery to the general public. Clearly, our Standards of Practice apply. (Footnote #2a)
The virtual meeting place is going to draw you into new situations where you, even by reason of novelty, may feel untested or uncomfortable. In respect to the ‘untested’, you know you’ll learn new practical skills; you’ll get over it-fake it till you make it. At the same time, I would recommend carefully scrutinizing the standards and ethical principles of the leading industry organizations being the International Council for Online Dispute Resolution (ICODR) and the National Centre for Technology and Dispute Resolution (NCTDR). (Footnote #2b) Sensing the ‘uncomfortable ‘in mediation however, goes with the territory and it’s all part of being a good mediator-never compromise your integrity. Remember the unconscious/incompetence-unconscious/competence Learning Wheel in Mediation 101. Family mediators are lifelong learners and the wheel keeps turning!
The guiding principles demand relentless challenge in the ODR medium. A good example may be email correspondence during a mediation. Does your Agreement to Mediate have a provision (Footnote #3) on point which respects bilateral contractual issues relating to mediation communiques?
One last point for this limited commentary may be to be aware (i.e. beware) that the general public may not be insightful that mediation is a self-contained profession with our own meaningful ethics in practice. Remember that we are the guardians of the process. We, family mediators, are the current stewards or trusted servants of this noble profession. Ensure that we preserve and protect our heritage and be wary of being drawn into possible interventions that put our profession or your practice at risk on a case-by-case basis. What if those people are looking for internet legal word processors or allies in domestic violence or power imbalance. Question-what do Peter Parker and John Haynes have in common? Answer- a Spidey sense.
Do no harm
All professionals and service providers in our current crisis are tasked to support our general public in Canada Strong. We are mindful of this serious threat to our community and are entirely grateful to the service and sacrifice of our front-line health care workers and essential services. As human service providers, we are guided by the professional premise of ‘do no harm’. We start with our guiding principles but must be ever cognizant of specialized practice prerequisites. In particular, at the Ontario Association for Family Mediation (OAFM), we have the recognition and integration of domestic violence and balance of power protocols and practice.
Firstly, do not think that domestic violence is not a practice issue in the mediation. Yes ,to the extent that the participants may not be in the same physical site but what about ‘at other times ‘within your professional mandate. Moreover, the fact that you are now functioning away from your controlled office environment, may actually heighten the threat assessment. At a minimum, you will continue to effect your pre-mediation assessment and risk inventory.
Once again, in limited commentary, I would like to repeat the importance of keen professional vigilance in ODR with strict maintenance of OAFM standards. In particular, take the time to re-hone those learning conversations with the participants about the true purpose of mediation which is to provide a safe and secure process to help them through their transition. Anchor the assessment, initial interventions and conflict tips and recommendations to help you help them navigate through the mediation process. Conflict reduction and dispute resolution in an impacted society re-consolidates mediation as a population health resource.
And in obvious conclusion on this point, let’s end on the COVID-19 reality that we enforce social distancing and safe document transmissions. More to the point, ensure that you are always vigilant to the public health risk of attending open (downtown, suburban or whatever ) offices which may be contrary to ‘their ‘initial inclinations.
Have a constructive conversation about using your e-mediation services or otherwise conduct yourself most appropriately. For example, electronic transmission of the Memorandum of Agreement; it may be you do that already ,so now you can beam ‘best practices’.
Please note that all internet platforms are not alike. As stated, professional standards of confidentiality apply. So look a little deeper into the prospective program. For many years in my international mediations, I used a particular e-platform which now does not pass my current process management capacity assessment. I have installed Zoom and GoToMeeting applications and I use the latter for my professional family mediation practice. I am entered as the organizer and pay a manageable annual service fee which I amortize and reasonably allocate as fixed disbursement charges. I’m sure that there are other similar meeting applications that you can investigate. I like this app because it jives with operative process management considerations in mediation.
I commend the OAFM in staging webs seminars in technology tips for online mediations. Once again,we as a community need to connect and share best practices in this new medium.
A good mediator is an excellent process manager. Process management in dispute resolution is a key attribute that attracts the general public and indeed, the lawyers and judges. I don’t mind saying and maybe it’s because of decades of family law and professional family mediation practice, I am hardwired to ‘structure’. To me, this really means ‘infrastructure’. We’ve already talked about the internet infrastructure. We’re referring now to applying our professional mandate in sequencing disclosure and issue resolution in a clearly transparent professional organization which facilitates consensus in whole or part. We’ll apply Mediation 101 as it may relate to communication and negotiation theories and then see what challenges and opportunities reveal themselves as reflective practitioners.
One practical modification that I have made in my e-mediations is to provide interim progress reports to the parties after each session. I frame these communiques as Debriefing Notes submitted in recognition of their closed mediation with some other acknowledgements which correlate to the Agreement to Mediate. These Notes contain the Agenda for the next meeting which accompanies an invitation to meeting.
On a personal note, I just love the structure that e-mediations provide (and being barefoot in business attire!!?!) but maybe that’s because I’ve got a more directive style in mediation. I’ll be interested to hear from the other side of the practice spectrum, to find out what our mediators with a more facilitative style are able to contribute to our ‘best practices’.
This is a great opportunity to invest real attention to your professional mediation clerical or data sub-directories. We are all ready to surf our active listening skills in this new wave of online mediations but what about our clerical capacities in the wake of the internet tsunami? Fix it now or it’s going to become problematic as cases increase. Best practices dictate that professional file management must promote reliable documentary retention notably including executed Agreement to Mediate, financial disclosure, interim reports, mediation communiques, third-party correspondence as well as draft MOAs and completed Domestic Contracts in addition to consumer accounting.
Remember that this is not just an area that will reflect your professionalism to the general public and our family justice system. Mediation is expanding and the steady rise of consumer complaints in other jurisdictions will probably transmute to our local industry. In the event that you are notified to participate in the complaints procedure, this attention to detail in retaining proper record keeping will undoubtedly assist in the resolution of the issue of demonstrated professionalism. As they say ‘it’s easier to loosen up a tight ship ,than tighten up a loose ship.’
Generally speaking and subject to threshold competency in technological application, if you have the skills to mediate, you will have the skills to e-mediate. But what if the general public is not aware that you are an emerging ODR specialist? As a healthy adjunct to updating your computerized programs and organization, you may wish to refocus on your website and advertising budget. Reach out to your professional network and ensure that the community knows of this timely and effective resource. There’s a lot more to prepare for a secure mediation practice than locating the Join Meeting prompt. Make these changes soonest and be ready to catch the wave.
The reflective practitioner
The experts say this crisis will pass but we know that it’s definitely not business as usual. Our industry will respond to these challenges particularly as we self examine our professional outreach and engage the learning conversations that accompany our good work in ‘being and becoming’. From the outside of my learning curve many decades ago, I was ably assisted by the good work of Michael Lang in the Reflective Practitioner. (Footnote #4) What truly lies within the heart and soul of a family mediator is the unbridled curiosity and potential to grow and develop as a caring and competent professional. Self examination and constructive criticism become our mandatory characteristics. It is our manifest destiny to influence and professionally imprint our telos in the development of online dispute resolution.
Take this opportunity to reflect on your given profession and be grateful that you can contribute to others in this time of need. Extend your study to relevant literature that you can use to edify your professional role and extend your lateral leadership into the creation of a new family justice systems in Canada. In this regard, I recommend the work of Richard Susskind in the Online Courts and Future of Justice. (Footnote #5)
Richard Susskind delivers a cogent call to action with specific reference to the significant challenges to the world’s citizenry struggling with the systemic backlogs of millions of cases in the global community. More than half of humanity is now online. More people in the world now have internet access than access to justice. Mediation in online dispute resolution and extended court services are components with other forms of consensual dispute resolution (including collaborative practice ) envisioning a new family justice system in Ontario. Your work in online mediation is part of this learning curve. Stay the course.
I previously mentioned Dr. John Haynes, one of the preeminent pioneers of family mediation. I remember quite vividly a conversation at an AFPM workshop in 1997, where he said to the effect : being a family mediator is asking what can we do today to make a better tomorrow. I believed him then but maybe I’ve only just come to understand. Now I have faith and am firmly convinced that our caring profession will evolve as hope endures.
Nigel Macleod ,LL.B., AccFM (OAFM), ADV.PRACT. (ACR) (APFM) Professional Family Mediator specializing in consensual dispute resolution (CDR). Nigel has maintained a blended practice of law and mediation since 1993 and was the first Canadian to become a Certified Florida Supreme Court Mediator in numerous practice specialties from 2009. He has studied Advanced Negotiation at Harvard Law School and completed various diplomas in related fields of studies. Nigel has participated in many CDR pilot projects over the last 20 years and was the Founding President of the Ontario Collaborative Law Federation. Nigel served as the OAFM Ottawa Chapter President and currently volunteers as a Complaints Investigator and sits on the Advocacy Committee of the Ontario Association for Family Mediation. Nigel is a member of the International Council for Online Dispute Resolution (ICODR).
1) The Promise of Mediation The Transformative Approach to Conflict: Robert A Baruch Bush/Joseph P Folger (ISBN-10 0787974838)
3) The purpose of this Agreement to Mediate is to facilitate and assist in the parties’ settlement of their interim and/or final consensus. As such, the mediator recommends individual and/or joint sessions in person. However, a party (or parties) may choose to augment the mediation process by delivering mediation communiques to assist in their negotiation process. Accordingly, in such circumstances, a written communication may be delivered by electronic means (i.e. email) with such text being delivered to the mediator with a simultaneous copy (not bcc) to the other party under the subject title “Mediation Communique”. Notwithstanding the internal publication of any such mediation communiques, the purported acceptance of any included proposal will not constitute offer and acceptance for the purposes of contractual enforcement unless and until completed in the continuing mediation session(s) or process, and in recognition of independent legal advice and contractual finalization and execution of a stipulated Domestic Contract.
4) The Guide to Reflective Practice in Conflict Resolution: Michael Lang (ISBN-10 1538116626)
5) Online Courts and the Future of Justice: Richard Susskind (ISBN-19 8838364)