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Mediation Misconceptions & the NHL Lockout

Many of us are unclear on what mediation is or how it can function as an effective dispute resolution process. The recent attention that the media has given to mediation in light of its role in the ongoing NHL lockout has served to both highlight this and provide an opportunity for clarification. 

  1. "We're not interested in mediation...It was of no value because of the position of the parties.”
    – Gary Bettman
Does Mr. Bettman understand the goal of mediation?  
Mediation is often not focused on the position of the parties (what they feel they are entitled to) but rather their interests (why they want it). A mediator may attempt to determine if the parties have shared or complementary interests that can be focused on to expand the realm of possible solutions. If a solution can be found that serves to satisfy the interests of the parties to the dispute, their positions may be irrelevant. 
Often in the course of disputes, parties dig in their heels and entrench themselves into their positions (i.e. “I want x amount”) rather than focusing on their interests (i.e. Why is compensation important? What other factors are important?). Identifying underlying interests and considering how such interests can be satisfied can lead to a resolution that satisfies the parties beyond a mentality of winning and losing. 
  1. “Gary Bettman does not require a mediator to show him where the middle ground lies.”  
    - Mark Spector, Senior Columnist Sportsnet.ca
Mediation is not about finding the middle ground or compromise; it is about thinking outside of the box and finding the best solution available to the parties with a view to reaching a win-win solution. 
A fitting and popular analogy is shared by Roger Fisher and William Ury in the best-selling book Getting To Yes: Negotiating Agreement Without Giving In where they share the story of 2 sisters fighting over an orange. Cutting the orange in half may be the middle ground, but understanding that one sister’s interest is to eat the fruit while the other is after the peel for cooking can allow for a better solution for everyone.
  1. Suggestion that individual caucusing with a mediator rather than the owners and players’ association meeting in a joint session is evidence of a lack of progress. For example:
“After a failed day Wednesday when the parties on either end of the hockey labour dispute never met with each other....” – Ira Podell, Associated Press
The mediation process is not set or standard; it is not a cut and dry approach that applies the same way to all disputes. It is a process facilitated by a mediator that is ultimately controlled by the parties and can accordingly take place in a variety of ways – increasingly so through technological advances. 
Separating the parties and conducting an individual “caucus” with each of them is a fairly traditional and often effective mediation tool. Caucusing is not a clear indication of a lack of progress; it may very well be a sign that great progress is being made.
Consider the Camp David mediation of 1978. Egyptian President Sadat and Israeli Prime Minister Begin bore such hostility toward one another that direct interaction would have been difficult, if not impossible. Caucusing was utilized to bridge the gap and work toward the resolution that ultimately earned President Sadat and Prime Minister Begin the Nobel Peace Prize.
The purpose of mediation is to facilitate the engagement of the parties to resolve their dispute. Rather than having someone impose a resolution, mediation provides an opportunity for the participants in conflict to control the process and craft their own solution with the goal of achieving a better result than if a third party imposed a decision based solely on “rights”. 
When parties go to court or arbitration, their focus is on persuading a judge or arbitrator that they are right and the other side is wrong. They set out their position and back it up with legal arguments, caselaw and evidence. Little attention is given to what the other side has to say except to show how it is wrong. The result has a winner and a loser.
When parties mediate, the parties are urged to look beyond what they see as right or wrong. The mediator is a neutral third party who makes no decision but rather facilitates dialogue. The parties do not look to someone else for a resolution; they must find it within themselves. The result is a different perspective and unique opportunity when considered against other forums of conflict resolution.    
The value of mediation is not necessarily whether or not a settlement is produced. To look at mediation only in this way is to lack vision. Even where a final resolution is not achieved, mediation adds value by narrowing issues, bringing to light broader options and/or assisting with the ongoing relationship between the parties engaged in conflict, something that can be particularly important in the realm of condominium disputes.

By Marc Bhalla - December 2012
Hons. B.A., Q. Med. - Mediator and Senior Clerk

Ext:  811
Email:  mbhalla@elia.org 
Toll-Free:  1-866-446-0811

 

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All of the information contained in this article is of a general nature for informational purposes only, and is not intended to represent the definitive opinion of the firm of Elia Associates on any particular matter. Although every effort is made to ensure that the information contained in this newsletter is accurate and up-to-date, the reader should not act upon it without obtaining appropriate professional advice and assistance.

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