module i: summarizing the literature -...

Practical Ethics for Working Mediators – Module I ADR Institute of Ontario

by Elaine Newman, BA, LL.B., LL.M.

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MODULE I: SUMMARIZING THE LITERATURE

Contents 1. Mediator power .................................................................................................................................... 1

Omer Shapira, “Exploring the concept of power in mediation: mediator’s sources of power and

influence tactics” ...................................................................................................................................... 3

2. Serving Justice and Ensuring Fairness ................................................................................................... 6

Dickson, CJC; “ADR, The Courts and The Judicial System: The Canadian Context” .................................. 7

3. Unrepresented litigants and multi-cultural disputes .......................................................................... 16

Harold Abramson, “Crossing borders into new ethical territory: ethical challenges when mediating

cross-culturally” ...................................................................................................................................... 17

1. Mediator power At the opening of an ADR process, it is common for us to remind the parties that the mediator

has no decision-making authority in the case. We say that we have not been retained to act as judge or

arbitrator, but rather to assist the parties with facilitation of their own result. In some cases, we may

have been retained because of our expertise in the field. Although we may offer an opinion or a

prediction of litigated outcome, our advice is still non-binding. We emphasize that we do not have

authority to decide the parties’ respective “rights” in law.

Consider a hypothetical case: A mediator is involved in a high profile facilitation about the

financing of a government project. The mediator attended a political fund-raising event that a number

of members of the governing party also attended. The question that arises is whether it is appropriate

and ethical conduct for a mediator to participate at the social or political level with those who are

involved as parties in a mediation process?

Among the factors considered in such a discussion are the usual:

1. What are the requisite elements of mediator neutrality?

2. What conduct is and is not consistent with mediator impartiality?



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3. To what extent does the perception of neutrality have an actual impact on de facto

neutrality?

4. What is the difference between an “ethical question” and a “best practice

question”?

Ultimately, in all such instances, the discussion will come to this point about decision-making

authority.

Mediators are different from judges. Mediators have no ultimate decision-making authority.

Mediators are clothed with neither statutory nor contractual jurisdiction to determine the merits of a

dispute. Therefore, the expectations in conduct, and the boundaries in behaviour are less stringent for a

mediator than they would be for a judge. Although it may be considered inappropriate for a judge sitting

on a case where the government is a party, to attend a social function hosted by the government, it is

not reasonable to expect that a mediator would be subject to the same standard. Even though the

mediator holds power, that power is far less than that of a judge, and so the obligation to conduct

oneself publicly in a neutral manner is less stringent.

What is the reality of mediator power? Such examples provide an opportunity to explore this

premise. How much do mediators influence outcomes? If we do actually influence outcomes, what are

the implications for our conduct?

Consider the following observations and analysis of Omer Shapira, expressed in the 2009 article,

“Exploring the concept of power in mediation: mediator’s sources of power and influence tactics,” which

concludes that mediator power to influence outcomes is significant. He urges us to consider mediation

ethics because of the tremendous impact we can have. The author argues that mediators have the

power to influence the participants in a mediation using any number of possible sources:

Coercion derived from control over resources like money, physical strength, and

high social status

Reward power: the ability to bring about what the other party wants

Expert power: the perception of the mediator as having superior knowledge or

experience



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Referent power: the influenced person’s identifying with the power holder

Legitimate power: the influenced person’s belief that the power holder has a right

to ask him to do something, and he has an obligation to do what he was asked to do

Informational power derived from the possession of information

Environmental manipulation power: the ability to change surroundings

Third parties’ power that mediators have associated with the courts1

The author believes that power relations between mediators, parties, and other participants

must be analysed in order to raise awareness. This discipline would contribute to a more effective use

of this power, better training, greater understanding of power relations in mediation, and enhanced

monitoring of the use of power. Further, acknowledging this element of power in mediation enhances

the importance of, and adherence to, ethical rules for mediators:

In the passages below, Shapira discusses the importance of understanding the complexity of

power in mediation:

Omer Shapira, “Exploring the concept of power in mediation: mediator’s

sources of power and influence tactics” 24 Ohio State Journal on Dispute Resolution

535 at 562-565, 568. Footnotes in original omitted.

Understanding the parties' sources of power is important for several reasons. First,

it could contribute to a more effective use of power by mediators. A party holding a

strong power position in relation to the mediator is more likely to be able to resist the

mediator's attempt of influence and vice versa. Mediators who are familiar with the

concept of power may be able to identify points of strength and weakness in the parties'

and in their own structure of power and take steps to increase their influence potential

by expanding their sources of power and by utilizing the parties' weaknesses. Second,

identifying the parties' sources of power could increase mediators' awareness of power

imbalances between parties and enable them to consider options for intervention such

as balancing, empowerment, withdrawal, etc. Third, recognizing the parties' sources of

power and power imbalances between mediators and parties intensifies the demand for

ethical conduct on the part of mediators, and provides a strong reason for mediators'

1 Omer Shapira (2009), “Exploring the concept of power in mediation: mediator’s sources of power and influence

tactics” 24 Ohio State Journal on Dispute Resolution 535 at 542-558.



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obligation to follow fundamental principles of mediation, such as self determination,

fairness, and neutrality […]

[A] party in mediation has coercive power in their relations with the mediator if

they can cause the mediator to accept what the mediator considers a negative

outcome. For example, parties have the right to end mediation at any given moment.

Parties who threaten to leave mediation and end the process could cause damage to

mediators who see their reputation as dependant on the production of mediated

agreements or to mediators whose supply of cases from court depends on achieving

such agreements. Mediators in such a position might restrain their influence attempts in

order to prevent the use of coercive power by the parties. Mediators who see their role

differently or mediators who are not evaluated according to the number of mediated

agreements arrived at would be less affected by such threats. In other words, the

parties would not be able to rely on coercive power on those facts.

The parties' coercive power might be based on other grounds as well. For example,

if the provision of mediation services is an important source of income for a mediator,

the party's decision to discontinue mediation would cause a financial loss to the

mediator. If a party has a close relationship with judges and businessmen with whom

the mediator has professional relationship, the mediator might feel concerned of a

negative outcome, which the party could cause him. These examples emphasize the

relative characteristic of power. The coercive power of a party in his interaction with a

specific mediator could be small or large depending on the circumstances of the

mediator (e.g., his dependence on income from mediation practice). Further, the

coercive power of one party in his interaction with a given mediator would be different

than the power possessed by another party depending on the circumstances of the

party (e.g., his social acquaintances). Moreover, the subjective characteristic of power

could mean that a mediator who is aware of the circumstances of a party (e.g., his social

acquaintances) would attribute him coercive power as opposed to another mediator

who is unaware of those facts or who is well connected himself and therefore does not

consider the party as having coercive power.

The parties' reward power in their interaction with mediators is dependant on their

ability to cause positive outcomes to the mediator. Thus, for example, if the mediator

believes that the parties could provide him with work in the future, the parties have

reward power. Where a close relationship develops between a party and mediator, it

could establish a personal reward power enabling the party to exert influence on the

mediator based on that relationship.

Mediation parties, like mediators, might possess expert power, thus affecting the

mediator-parties power relations. In a situation where one of the parties is an

experienced lawyer, the expert power which a lawyer-mediator would be able to



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employ in the interaction with that party would be more limited than in a case where

the party does not have legal education or immediate access to a legal expert. Where

the mediator is not a lawyer, and belongs to a different profession, the balance of

power in the area of legal expertise would tilt against the mediator. He would have to

exert influence based on other power sources such as expert power in conflict

management (his superior knowledge on how to communicate and negotiate effectively

in conflict situations) and position power (his authority to make decisions relating to the

management of the process).

Continuing the example, assume that the party is an expert in a field not relevant

to the dispute (for example he is a famous professor of physics or a movie star or a

political figure). This party brings to mediation his social status which the mediator

might find hard to ignore. In such a case the party might enjoy position power, which

places him above the mediator in the hierarchical social ladder. As a consequence, the

party could manifest more resistance to the mediator's influence attempts and enjoy an

improved power position from which to influence the mediator himself.

Understanding the parties' sources of power is important for several reasons. First,

it could contribute to a more effective use of power by mediators. A party holding a

strong power position in relation to the mediator is more likely to be able to resist the

mediator's attempt of influence and vice versa. Mediators who are familiar with the

concept of power may be able to identify points of strength and weakness in the parties'

and in their own structure of power and take steps to increase their influence potential

by expanding their sources of power and by utilizing the parties' weaknesses. Second,

identifying the parties' sources of power could increase mediators' awareness of power

imbalances between parties and enable them to consider options for intervention such

as balancing, empowerment, withdrawal, etc. Third, recognizing the parties' sources of

power and power imbalances between mediators and parties intensifies the demand for

ethical conduct on the part of mediators, and provides a strong reason for mediators'

obligation to follow fundamental principles of mediation, such as self determination,

fairness, and neutrality […]

It is important that mediators' work is transparent and that the parties know

before they enter mediation how it is conducted and how mediators operate. Mediation

is based on a principle of informed consent, and consent would be harmed if parties

were not aware of mediators' power. The analysis offered in this article emphasizes the

idea that even though mediators lack the formal power to impose an outcome on the

parties, they are still powerful professionals who use a variety of powers in the exercise

of their professional role, and have considerable influence on the parties, the process,

and its outcome. Parties should be aware of this fact and take it into consideration when

they make the decision whether to enter mediation and participate in it, and also during

mediation when they discuss with the mediator the dispute, proposals for concessions,



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options for settlement, etc. Without this awareness the parties consent would not be

informed and real.

The influence we have over parties is real. We influence the outcome of the process. We have

power, real and perceived. We use it to get what we want.

What do we want? We want a deal. Are we prepared to use our power as mediator to get it? Of

course we are. Are we diligent in recognizing that we are using our power to influence outcome? Are we

conscious of the extent to which maximizing our power as mediator detracts from party autonomy and

self determination?

2. Serving Justice and Ensuring Fairness Few mediators consider serving justice to be a crucial piece of their mediation goal. In a recent

class of Advanced Mediation, students were polled about the way in which they prioritized their own

mediation values. The vast majority adhered to their lessons to avoid judging outcomes and placed the

lowest priority on the value or goal of “serving justice," or achieving what they considered to be

“fairness”.

This approach is reflected in the latest iteration of the Code of Conduct for Mediators, issued by

ADR Institute of Canada, Inc., amended March 1, 2011, which does not include either the term “just” or

the term “fair”. This intentional choice by the framers seems to enforce the idea that mediators are not

to judge the merits of the dispute, according to their own perception of justice or fairness. To do so

would be to mistake their role, and to render their services merely a prediction of the litigated outcome.

The literature on ADR, however, is rife with discussions about the role of fairness and justice in

mediation processes. The starting point of this idea is the full text of Chief Justice Dickson’s warning,

which was referred to in the introduction to these materials.



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Dickson, CJC; “ADR, The Courts and The Judicial System: The

Canadian Context” (1994) 28 Law Society of Upper Canada Gazette 231.

Let me at the outset express my thanks to the organizers of this Alternate Dispute

Resolution program who have invited me to participate. I have found the last two days

to be both stimulating and instructive.

The presentations and debate that we have had the privilege of listening to over

the course of the last two days are a testament to the extraordinary explosion of

interest in methods of resolving disputes other than hard fought "winner takes all"

litigation. As one who spent a significant part of his career in the law as a judge, and as

the person entrusted with the administration of the highest appellate court in Canada, I

am all to well aware of the diverse pressures the judiciary faces as it confronts an ever-

expanding docket of cases and of the limitations of the courtroom as a forum for

resolving disputes.

We in Canada have recently had all the more reason to be concerned about these

matters. We have spent the last decade coming to terms with the introduction of a

Charter of Rights and Freedoms that has placed new pressures on the courts. The

advent of the Charter in Canada was an important step in Canada's evolution as a

constitutional democracy. The Charter has generated a host of new cases that in my

view do belong before the courts. At the same time, the Charter has introduced new

constitutionally entrenched rights, such as the right to a trial within a reasonable delay.

This has placed increased pressure on the courts to deal with the criminal cases on a

high priority basis. Indeed, the Supreme Court of Canada held in one instance that a

delay of two years between a preliminary hearing and a trial with respect to a charge of

conspiracy to commit extortion was excessive and could not withstand constitutional

scrutiny. The Court went on to observe that six to eight months from committal to start

trial to the date of the trial was the maximum allowable period for systemic delays.

The Supreme Court's decision with respect to the right to a trial within a reasonable

delay revealed that there were literally tens of thousands of cases that had been subject

to delays of over six to eight months. This has led to a considerable effort to improve

the pace at which criminal cases wind their way through our judicial system. But while

much is being done to improve the situation with respect to criminal trials, a problem

that Ms. Filner identifies in her work, namely the postponement of civil cases in order to

meet constitutional requirements for a speedy criminal trial, is a spectre of which we in

Canada arc now all too well aware. If we are to ensure that the right to a trial without

unreasonable delay (a right that I believe is an essential feature of a fair criminal justice

system) does not give rise to unfortunate side-effects with respect to the pace at which

civil cases are heard, then we must continue to work on improving the ways in which

criminal and civil cases alike are handled.



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In addition to the Charter, the Canadian judicial system is subject to a wide range of

pressures that have been identified by several speakers in the last two days: budgetary

constraints, a steady and sizeable flow of new cases every year, and the challenge of

attracting high quality people to sit on the bench, are just some examples of the

problems that we face. It is clear, then, that the volume of cases that courts must deal

with is growing just as the resources needed to hear these cases are being rationed. Not

surprisingly, one side-effect of these developments has been increased concern that

cases that need not be in the courts be moved into settings better suited to dealing with

the issues at stake.

This is all too good. It has certainly been my experience that in some instances

courts have not proven particularly effective at resolving disputes. Indeed, courts

sometimes serve as nothing more than a forum which parties use in order to avoid

having to embark on ongoing negotiation. Parties may return time and time again to the

courts as they continue to look for tactical advantages, instead of sitting down with an

eye to bringing confrontation to an end. The result is often a time-consuming and

expensive process which serves simply to prevent courts from dealing with disputes in

which it is possible to provide some degree of finality.

What is clear, then, is that those entrusted with management of the courts have

little choice but to look at whether they are running the justice system as efficiently as

they might. This has given rise to important initiatives. Within the traditional court

system in Canada we have recently seen considerable analysis of ways in which to make

the courts more efficient and more effective. For example, in 1986 the Zuber

Commission undertook a major study of the court system to Ontario. It identified a

number of problems that were giving rise to increased costs, delay and unnecessary

complexity in the administration of justice. In part as a result of the problems identified

in Justice Zuber's Report, there has been a move in Ontario toward:

i. greater use of pre-trial conferences designed to assess whether it is in fact

necessary to proceed to litigation;

ii. case flow management systems that the courts have put in place to ensure that

once cases get into the system they continue to move through that system until

they are resolved, rather than languishing on the rolls; and

iii. an increased emphasis in the Rules of Civil Procedure on making sure that cases

move forward or move out of the courts.

These have been valuable initiatives. Pre-trial conferences, for example, have

proven enormously successful: in Ontario, the percentage of cases settled before trial

increased by approximately 48 per cent and the number of trials decreased by about 45

percent.



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These developments are all part of a complex picture and it is important to keep

one's eye on the reality of this bigger picture as one explores the role that ADR might

play in improving the overall effectiveness of our judicial system. In particular, it seems

to me that we must be extremely careful to avoid confusing problems that have to do

with ensuring that cases that belong before the courts are heard promptly and at no

more expense to the parties than is necessary, with problems that have to do with

determining the forum that is best suited to resolving particular disputes. Nothing

would be worse than to have cases that really do belong before the courts pushed into

ADR because the courts are incapable of coping with the volume of cases that come

before them.

We in North America have invested a great deal in order to ensure that people

have confidence in the integrity and impartiality of the courts. We are very fortunate

indeed to have a forum that people feel they can turn to for the vindication of their

rights. These are points upon which the Zuber Commission placed particular emphasis

and it seems to me that we cannot afford to underestimate the importance that the

legitimacy that our judicial system enjoys in ensuring that many of the most protracted

disputes in our society are brought to a peaceful conclusion. As we reflect on ways in

which to improve the delivery of justice in North America, we must above all make sure

that we do not undermine the legitimacy of our judicial system.

That having been said, if the right kinds of cases are being channelled into ADR and

if ADR functions effectively, than there is no question that it can play a useful role in

promoting justice. But it seems to me that as we round out the judicial process with

other settings in which to resolve disputes, we need to be extremely careful that the

values that underlie those other settings are consistent with those that have evolved

over many centuries and that lie at the heart of our judicial system. For it is these values

which ensure that our system of justice is respected. If the average person facing one of

the few disputes in his or her lifetime that calls for neutral third party intervention does

not feel that ADR is delivering justice consistent with the norms that they have always

understood to lie at the heart of the justice system in North America, then ADR may well

clause more problems than it solves. The risk is that, poorly handled, ADR may

undermine the very legitimacy upon which courts rely for their effectiveness. This is not

a price that the judiciary can afford to pay.

I note that a recent report of the Law and Public Policy Committee (of which

Professor Sander is a member) of the Society of Professionals in Dispute Resolution - an

American organization - stated in connection with an analysis of the judicial process in

the United States that a hallmark of democratic systems of government in many

Western countries has been that private individuals, including the disadvantaged or less

powerful segments of society, have access to the political and legal processes, and that

governmental decision-making is open to public scrutiny. The committee went on to



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emphasize that we need to ensure that these values are not eroded by governments’

increasing reliance on private dispute resolution. Others have made similar points more

or less forcefully. Some have expressed concern that cases that belong before the courts

should not be pushed out into a forum in which parties are then forced to settle. If this

happens, dockets may be trimmed but justice will not have been done. Concern has also

been expressed about removing public scrutiny from the process. Some fear that

certain forms of ADR may lead to a secretive system wholly inconsistent with the

traditions that lie at the root of our system of justice.

If we are to address these legitimate concerns satisfactorily, then we need to be

sensitive to the values that underlie our judicial system. As the Law and Public Policy

Committee points out, these values include:

- the importance of equal access;

- reliance on established procedures that promote equal treatment and

dignity;

- the requirement of a reasoned decision;

- openness to public scrutiny; and

- use of qualified neutrals.

In developing ADR techniques, I believe that we need to think long and hard before

dispensing with these values. There may be instances in which complete openness or

the full panoply of judicial procedure is unwarranted, but we should start with the

assumption that these values are worth preserving and then go on to explore how they

can best be reflected in each forum that is pointed to as an alternative to the traditional

court based system. Obviously it will be necessary to accommodate these values to the

contours of the setting with which one is dealing. Careful thought must be given to the

way in which they can best be respected rather than simply assuming that because one

is no longer in the courtroom these principles can be dispensed with.

The decision to dispense with any one of these basic values should be the

exception, not the rule. The onus must be on those advocating a particular form of

dispute resolution mechanism to make clear why they feel it is necessary to limit

safeguards that are found in a courtroom setting. Reasons on occasion do exist for

putting limitations in place. But I think it essential that one go through the process of

justifying the limitations each time they are put in place. If nothing else, it seems to me

highly likely that at some juncture someone will launch a Charter challenge attacking

aspects of certain forms of ADR, such as requirements that proceedings be held in

private. Better to have thought through whether the limitation in question can be

justified prior to that challenge than to have to come up with justifications after the fact.



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Moreover, we must be careful that cases in which the public has a very real

interest are not pushed out of the public eye into channels that will ensure that the

public interest is forgotten. Cases involving constitutional rights or the interests of

vulnerable groups (for example, children) are two examples. In some instances, such as

child custody matters, criminal cases and certain constitutional cases, the public may

well have an interest in the outcome of the proceedings. In such instances, public

officials should carefully consider whether that interest can be adequately met through

referral to private dispute resolution. Even when it can, it may be that referrals should

be contingent on the public justice system's maintaining some form of presence, or

retaining sufficient power of review of the outcome to ensure that the public interest is

met. It may well be, then, that court annexed ADR is a safer way to ensuring that basic

values are respected than simply pushing all cases into private courts or other private

sector based settings. While parties may prefer to use private arbitration and are

obviously entitled not to go to court if that is their preference, courts should think long

and hard before trying to disengage themselves completely from cases that have

already come before them.

At the same time, it seems to me that we must be sensitive to the history

underlying ADR. Many of the concepts now grouped together under the ADR rubric are

hardly new: arbitration, for example, has been around for quite some time. We can

learn a great deal by looking at the way in which procedures have been adapted in

settings such as these. Nor are some of the concerns driving ADR particularly novel: a

concern for expertise and a more efficient way to resolve disputes gave birth to labour

arbitration, concerns that continue to propel the move for modes of dispute resolution

that are not centred on the courtroom. What is new is the attempt to think about these

alternatives to the judicial system in a more structured fashion, with an eye to

identifying broader themes and to understanding what kinds of dispute lend themselves

to particular approaches to problem solving. As the pressure on the courts intensifies,

this kind of well-focused thinking is going to be of increasing importance.

How should we go forward? The challenges must be addressed on at least two fronts.

i. First, we need to keep developing a fine-tuned understanding of the dynamics of

disputes and the processes best suited to resolving them.

ii. Second, we need to work on ways of developing effective mechanisms for

channelling different kinds of disputes down the right path on the spectrum of

approaches that exist (from negotiation to litigation), approaches that a number

of speakers have explored in the course of this conference.

The first of these challenges, matching process to the substance of disputes, may in

some cases require that we approach some forms of ADR with a healthy dose of



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scepticism, recognizing that some ADR techniques have not always proven particularly

constructive. Experience has shown that on occasion certain forms of ADR (for example,

commercial arbitration) can be just as expensive and time-consuming as the judicial

process, if not more so. I have heard some complain about the ability of counsel to turn

private arbitration into a time-consuming and expensive process that would not have

been tolerated in a court of law. We need to be sensitive to experiences of this kind, lest

cases that belong in the courts get pushed into ADR out of a misguided belief that they

will be dealt with more expeditiously and at less cost.

At the same time, there are those who are enthusiastic supporters of ADR and who

have had very positive experiences in this setting. Among other things, they point to the

role that practices such as arbitration can play in bringing finality to a dispute, especially

when the legislation governing arbitration provides for a narrow right of appeal on

questions of law only. It is therefore clear that provided that we are dealing with the

right kind of case and parties are keen to try to resolve their differences in honest

way[s], ADR can be enormously useful. The question is what kind of institution structure

one can put in place to facilitate this process.

Professor Sander's multi-door courthouse, with each door representing a distinct

process to which a case might he referred is an intriguing idea. The challenge, of course,

is to determine how best to decide which case goes through what door. While I am

extremely sympathetic to the proposition that different cases are best suited to

different methods of dispute resolution, the challenge must inevitably lie in developing

a system for channelling cases that is neither seen to be a bureaucratic affair with

officials deciding in which forum a given case should be heard, independently of the

parties' views on this matter, nor one in which lawyers look for tactical advantages in

pushing a case through one door instead of another. While it may seem easy enough to

the dispassionate observer to decide what procedures should govern the resolution of a

particular dispute, one must never forget that if our judicial system is to continue to be

respected it is the participants who must accept that they are being treated fairly. They

must therefore feel that they are involved in decisions about the forum in which their

case is to be heard. And once in that forum, they must come to feel that there are

procedural protections in place that will ensure that their side of the story is heard

without power imbalances in their relationship with the opposing side affecting the

likelihood of a fair solution.

Nothing would be worse than to have parties go through one door, only to be told

that their case really belongs in another forum and that they must start again. These are

the kinds of experiences that will serve only to harm the legitimacy of our entire judicial

system. I am in full agreement with observations Professor Sander has made in the past

to the effect that the very purpose of ADR must not be undermined through the

creation of poorly thought out processes that would see cases being shunted from door



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to door of the multi-door courthouse. The judiciary must not allow ADR to become an

alienating bureaucratically-run exercise. We must all remember that the way in which

ADR is institutionalized is therefore of enormous importance. I urge you all to pay

particular attention to the marriage between the institution(s) that administer ADR and

the values that must continue to be respected if our judicial system as a whole is to be

held in high esteem.

In this respect, it seems to me that if parties are to accept that ADR has something

to offer, then it is enormously important that the legal profession embrace and explore

the strengths and weaknesses of ADR. It is no good to have the push for ADR come only

from the judiciary. If those who would otherwise be litigants are to feel that there is

merit in exploring alternate avenues and that the principles of fundamental justice will

be respected in those settings, then they need to have access to professionals who

understand the strengths and weaknesses of different approaches to dispute resolution.

These professionals will be best placed to convince parties of the merits of proceeding

through one door of a multi-door courthouse rather than another. While the Canadian

Bar Association's Code of Professional Conduct states that lawyers should encourage

clients to settle disputes on a reasonable basis and avoid useless legal proceedings,

lawyers need to go further and should consider how ADR may best serve their clients. I

am therefore encouraged by the recent growth in law firms that seek to make the best

use possible of ADR and it is my hope that this trend will continue.

The second challenge that I identified earlier when asking how to go forward with

ADR involves thinking carefully about who should have a say in choosing the appropriate

method of handling a dispute: the state? the courts? the parties? some or all of these? It

is evident that with respect to most approaches other than litigation and arbitration,

there has to be some degree of consensus among the parties concerning how best to

tackle a problem and whether there is any need to preserve the relationship between

the parties. At times that consensus exists and there is a willingness to see a relationship

maintained. No doubt consensus could be found more often if there were on occasion

an attitudinal shift on the part of the legal profession, one that saw it encouraging

parties to concentrate on ways of resolving disputes while preserving relationships. This

will require effort with respect to legal education, both in the law schools and in the

profession, in order to increase awareness of the availability of mediation, conciliation

and arbitration as possible alternatives from the traditional judicial confrontational

attitudes.

We in Canada have watched with considerable interest the experience of a number

of districts in the United States that have instituted a multi-door courthouse program. In

Canada, Ontario has just begun a pilot program concerning a form of court-annexed

ADR. If this program is successful, then Ontario may well follow some U.S. states in

setting up a more formal system.



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More precisely, in February 1993, the Law Society of Upper Canada's Dispute

Resolution Subcommittee of the Research and Planning Committee issued a stimulating

report that explored the possibilities for ADR in Ontario. The report included a

comprehensive package of proposals concerning the best way in which to enhance the

role of ADR in Ontario. The report suggested, among other things:

i. that there be greater emphasis in educating lawyers about the potential for ADR;

ii. that the Rules of Professional Conduct be modified to place an obligation on

lawyers to inform their clients of the alternatives to litigation; and

iii. that steps be taken to enhance the public's awareness of alternatives to

litigation.

These proposals were a valuable contribution to discussion about ADR within the

legal community in Ontario. And not long thereafter, concrete steps were taken to

explore how ADR might function in that province.

In April of this year the first court-based centre for alternative methods of resolving

general civil cases in Canada was opened in Toronto. The Alternative Dispute Resolution

Centre is a two-year pilot project that will see specially-trained dispute resolution

officers and judges meet with the parties in civil cases, as well as their lawyers, in an

attempt to resolve their cases. The Toronto Region receives approximately 60,000 new

civil cases each year and it is felt that approximately 50 per cent of those might be

suitable for ADR. While a welcome side effect would be assistance in clearing a backlog

of approximately 10,000 cases, the pilot project was created principally because it was

recognized that in many instances courts may well be a less than ideal instrument

through which to resolve disputes.

The project provides that civil cases may be referred to the ADR Centre either at

the instigation of the court or by mutual consent of the parties. If a case is to be

referred to the ADR Centre, then this will take place only once a statement of defence

has been filed. Parties are not prohibited from using private ADR services (in which

case they are responsible for the fees). Indeed, the ADR Centre will provide a list of

persons willing to provide private ADR services. But where a case does proceed to the

ADR centre, a court official known as a dispute resolution officer (under the supervision

of a judge) will review the case and together with the parties will determine what kind

of ADR technique may be most appropriate for resolving the case. The techniques

include:

i. ADR assessment, a process whereby the parties to the dispute sit down with a

dispute resolution officer or judge to discuss the suitability of ADR as a means of

resolving the dispute;

ii. Neutral evaluation, a process in which a judge, a dispute resolution officer or a



15

private ADR service provider evaluates the merits of each party's position and

advises the parties of the probable outcome of a trial;

iii. Mediation, whereby a judge or dispute resolution officer assists those parties to

a dispute to reach mutually acceptable resolution; and mini-trials, a process in

which opposing counsel present their best case to the parties or to a

representative of the parties to a dispute with authority to settle and to a judge

or dispute resolution officer who moderates the presentations and renders a

non-binding opinion as to the probable resolution of the dispute. In all cases, the

ADR session will be confidential, with the parties entering into an agreement to

keep the proceedings confidential. If the parties reach agreement (in how to

resolve the dispute), that agreement is to be reduced to writing and signed. If

they do not reach agreement, then no record of the ADR session will be available

to the trial judge other than a Certificate of Inability to Resolve.

The pilot project that has just begun in Ontario is an exciting one. I am pleased to

see that the courts will remain an active player in the administration and development

of this project. If we are to ensure that ADR develops in a manner consistent with our

judicial system's most fundamental values, then it seems to me essential that the courts

stay involved. At the same time, I think we need to keep an eye on how features of this

pilot project like confidentiality or having judges involved in trying to resolve disputes

work in practice. We need to ensure that these practices are not perceived by the public

in a negative light and that they are seen to enhance justice. There are good reasons for

keeping aspects of the pre-trial process confidential even if it is in the context of court-

annexed ADR. Similarly, we must be sensitive to the impact that judicial involvement in

ADR may have on the public's perception of judicial impartiality. When moving away

from fundamental principles of our judicial system, we need to be especially careful to

ensure that all considerations have been fully canvassed.

Ontario's pilot project is not the first time we have seen ADR projects in a Canadian

setting. British Columbia has centres for commercial dispute resolution, and Alberta has

adopted a program to conduct mini-trials in some complex civil cases. But these have

not been nearly as ambitious in scope as the project in Ontario. The experiment in

Ontario is therefore an important one and if it is successful then I have no doubt that we

will see further court-annexed ADR in Canada.

Introducing ADR will not be a simple exercise, not least because it involves that

hardest of tasks: bringing about attitudinal change. Success will depend on a firm

awareness of the strengths and weaknesses of ADR, as well as a sophisticated grasp of

how it should interact with our judicial system as a whole. We must make sure that

cases that belong in courtrooms do not get pushed out into ADR simply because courts

are over-burdened. Moreover, even in those instances when one is dealing with cases



16

that do belong in ADR, great care will have to be taken to ensure that the manner in

which ADR is fleshed out is consistent with the principles of fundamental justice that

underlie our judicial system. But if ADR is handled carefully, then it holds the potential

for substantial improvements to the manner in which justice is delivered in Canada.”

The words of Chief Justice Dickson, written in 1994, have been of great importance in the

ensuing years. It is, one might argue, a rare mediation day where the fundamental questions do not

emerge. We have, however, become lazy. By and large we have come to rely upon the closed caucus

process more and more, disregarding any lingering ideal of transparency as a hallmark of our judicial

system. We facilitate negotiations by bartering positions, in the name of party autonomy, without giving

thought to what we may know, or suspect, is the “just” outcome in law. We abandon the model of

reasoned decision-making, and exchange the goal of what we ought to do in the interests of fairness, for

what we can do in our capacity as mediators. We do all of this with pride in our work – justified pride,

because our methods achieve results. We do provide fast, less expensive resolutions, and we do serve

the wishes and the best interests of the litigants. We may not, however, always serve the best interests

of justice, or of the justice system.

3. Unrepresented litigants and multi-cultural disputes The mediator, it is argued, must identify the fact that he or she is in the throes of a dilemma

every time the door to a mediation room is closed, every time one party tells the mediator a fact that is

not to be shared in the other room, and every time the target outcome seems unjust or unfair. The

greatest danger to our profession will come on the day that we fail to recognize, and fail to struggle

with, the fact that our process has potential to erode the values upon which our justice system is built.

Author James J. Alfini refers specifically to lawyers acting as mediators when he asks

How do mediators promote justice in our society? There has been surprisingly little

thinking and writing on this topic. Does mediation foster democratic decision-making?



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How or why? Is it because of its core value of party self-determination that reserves

decision making authority to the parties [...]? Does it strengthen democratic values by

insisting on process fairness or procedural justice?

Injecting inspirational, higher purpose language into mediator standards of conduct

would be an important first step […]2

How should mediation address the increasing presence of self-represented litigants? If the word

“justice” is absent from our considerations, and if concepts of “justice and fairness” in respect of

outcome do not emerge as high on the list of mediation values, what do we do about the unrepresented

individual? The individual without resources or legal education, who faces a law firm representing the

bank, or the insurance company?

Author Stephan Landsman makes a principled, but admittedly naive case for publicly funded

access to legal aid for ADR participants. Given that the impact of self-representation is known to

generate substantial reduction in outcome position, he argues that for a mediator to proceed without

ensuring independent legal advice in the cause would be tantamount to resulting in an

“unconscionable” process.3

Practical examples help us to understand the problems. An excellent selection, and one which

provides a model of working through a “justice related” dilemma, is Harold Abramson’s article on cross-

cultural mediation, and the mediator’s dilemma when faced with a result that may be appropriate in

one culture, but illegal or immoral in our own.

Harold Abramson, “Crossing borders into new ethical territory:

ethical challenges when mediating cross-culturally” (2008) 49 South

Texas Law Review 921 at 923-925, 926, 928-929, 930-931, 933-937. Footnotes in original

omitted.

2 James J. Alfini in “Mediation as a Calling: Addressing the Disconnect Between Mediation Ethics and the Practices

of Lawyer Mediators” (2008), 49 South Texas Law Review 829 3 Stephan Landsman, in “Nothing for Something? Denying Legal Assistance to those Compelled to Participate in

ADR proceedings”, 37 Fordham L.J. 273, 2010



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[Evaluate the hypothetical situation which follows. The context and factual example

may seem unrelated to your own practice, however the concepts are capable of easy

application to any situation of mediation where the parties are moving toward

resolution of a dispute that contemplates an unjust, unfair or illegal outcome.

Withdrawal from the case, as will be seen, is a final option, and one of last resort.]

A Muslim woman asked her Imam at her Mosque for advice on obtaining a divorce

from her husband. As part of the process of counseling, the Imam met with both

spouses and advised them about the principles of Islamic law that they should follow in

dissolving their marriage contract or nikkah. Both spouses want to resolve their conflicts

Islamically and in accordance with Quranic principles.

Their Imam advised them that a husband can ask for and obtain a divorce for any

reason (talaq). However, he is obliged to support his children until they reach the age of

majority and provide for the wife's needs for a "waiting period" of seclusion, if the wife

remains in the husband's home to observe the waiting period (the iddath, which lasts

three menstrual cycles to check that the wife is not pregnant). In addition he is obliged

to pay his wife the amount stipulated in the marriage contract (the mahr) that she must

receive if the marriage ends. The marriage contract provided for $40,000.

A wife cannot receive a divorce without her husband's consent. If she initiates the

divorce, she forfeits her right to the mahr although the obligation of the husband to

support his children continues until each child reaches eighteen years old.

The Wife is pressing for divorce and the Husband is resisting giving consent. The

Wife, who has little means to support herself, is deeply unhappy in the relationship,

especially since her Husband took a second wife, which he is entitled to do Islamically.

The Imam advised them that the husband cannot force his wife to continue with him

and should not unreasonably withhold his consent – but that giving consent would

release him from any obligation to pay his wife the mahr.

The Wife, who is distraught and humiliated, says that she wants permission for an

Islamic divorce from her Husband in order to move on with her life. The Husband says

that he will not grant her request unless she forfeits her mahr and any other financial

support for herself and agrees to give up custody of each child at puberty. The Husband

insists that he wants custody of their six-year-old son when he turns seven years old. He

wants custody of their thirteen-year-old daughter when she turns fifteen years old.

When reaching the stated age, the Husband told the Wife that the child would be taken

into the care of the Husband's female relatives.

At the mediation, the Wife capitulates and says she will waive all rights to financial

support and agree to his requests regarding the transfer of custody at the given ages so

long as the Husband grants her request for a divorce. Having extracted these

concessions, the Husband seems pacified. The Wife and Husband are heading toward



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this agreement. Such an agreement would be broadly supportable under Islamic law

principles and within the norms of the Iranian community in which the parties live.'

What should a western mediator do?

For the mediator, this is a cross-cultural conflict with a twist. Instead of the cultural

conflict arising between the parties, the conflict arises between the mediator and the

parties. It is in this peculiar context that this hypothetical presents one overarching and

challenging feature: The parties agree to a Rule that when applied by these parties,

results in a mediated agreement that is unfair based on the mediator's westernized

values and may even violate western domestic law.

Consider the way the Husband's power over granting a divorce was being used to

extort a one-sided agreement, at least from a westernized point-of-view. A western

mediator would likely view such an agreement as grossly unfair where the unemployed

Mother waives needed financial support and relinquishes rights to her children in return

for the Husband consenting to the divorce. Under westernized common law and

statutory laws, such a one-sided agreement also is likely to be invalid and unenforceable

due to the unclean hands of the withholding Husband and the duress suffered by the

Mother who wants the divorce.

This culturally shaped family mediation starkly raises an old issue in new packaging:

Should a mediator withdraw when the mediator encounters a rule, practice, or

emerging agreement that the mediator thinks is unfair?

In this dispute, the new packaging entails an objectionable foreign cultural rule and

its impact on the resulting mediated agreement. Without this cultural overlay shaping

the parties' behavior and resulting agreement, I suspect that many western mediators

would withdraw from the mediation, as will be explored later. With the cultural overlay,

however, it is less clear what a mediator might do. In analyzing what a mediator might

do, I will suggest a four step approach for proceeding ethically and for avoiding the

charge of cultural imperialism [...]

A mediator inescapably views a dispute through his or her culturally shaped lens,

whether conscious of it or not. Therefore, a mediator must be self-aware of this

perspective in order to distinguish the universal behaviours and other cultural

behaviours from the mediator's own cultural views when evaluating a dispute.

Developing self-awareness requires doing some research. I have found it helpful to read

articles and books that describe cultural categories like forms of communicating in

different cultures and describe American culture for foreigners. When it comes to

mediator ethics in the United States, the Model Standards of Conduct for Mediators'

provide the primary cultural lens through which mediators see their disputes. I began

this journey by re-acquainting myself with the Model Standards and especially the

values that they reflect.

These ethical standards emerged from a long standing and heated debate over

whether a mediator ought to be responsible for the resulting agreement […]



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How to Deal with Cultural Imbalances

Research the other culture

A mediator cannot help bridge a cultural gap without learning and understanding

the cultural practices of the parties. Researching culture is not easy to do, as anyone

who has tried knows only too well. In the face of sometimes difficult to find materials

that may reveal amorphous, as well as conflicting information, the mediator needs to

become acquainted with the terms of a practice as well as its rationale. Learning about

someone else's culture can be a treacherous inquiry because the mediator is trying to

understand a practice that not only might be contrary to his or her own, but also

abhorrent - based on the mediator's cultural upbringing. This inquiry is vital if the

mediator wants to avoid the charges of ethnocentrism and cultural imperialism. The

inquiry can be an uncomfortable, if not repulsive, one however, because the mediator

must be open to the possibility that what appears, in abstract, to be an offensive

practice, may turn out to be tolerable when understood in context […]

Bridge any cultural gap

With some understanding of the cultural context of the practice, the mediator

should next proceed with a sophisticated party self-determination inquiry. As a

threshold matter I, as a mediator, always assume that the parties have legal counsel. I

also assume that the parties were encouraged to seek counsel from a trusted family

member or friend so that each party has the benefit of a support system that each party

trusts.

The mediator might give the Wife and Husband an opportunity to express their

reactions to the Rule and to consider its rationale, benefits, and drawbacks. Then the

mediator might follow-up with clarifying and reality-testing questions. This is not a

simple inquiry, which gives rise to the old adage that it can be easier to describe what to

do than to actually do it. However it is an essential inquiry if mediators want to seriously

pursue party-self-determination. One of two basic scenarios might emerge for the

mediator to pursue; (1) the Wife accepts the Rule, or (2) the Wife objects to it […]

Assess whether to withdraw

Even in the face of the parties consent or apparent consent, the mediator may still

find the practice so personally abhorrent that the mediator may want to withdraw. But

how can a mediator withdraw and avoid the charge of cultural imperialism?

(1) Assess whether cultural practice violates internationally recognized norms

I next pursued the grand inquiry in cultural studies - the search for universal norms,

against which a mediator could judge the practice. How to identify these norms is the

subject of numerous articles, books, and much debate. Rather than exploring the



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challenges and highly contested nuances of agreeing on universal norms, I attempted a

shortcut, although one with its own hazards, by researching ratified international

treaties as a source of norms. Recalling that ratification means approval in accordance

with a country's domestic political process, a ratified treaty arguably reflects the values

of the ratifying country, shared values of the ratifying countries, or universal values if

widely adopted. Then, if the practice, in this case the Rule, violates an international

treaty ratified by the parties' country or countries with similar cultures, the mediator

could defend against the charge of imperialism by withdrawing, not on the basis of a

violation of his or her own cultural norms, but based on the violation of an

independently recognized norm.

With this promising approach in mind, I started researching international treaties,

reading articles on international human rights, and consulting with human rights

professors. I quickly learned about two international treaties with surprisingly relevant

and specific provisions.

First, I read the Universal Declaration of Human Rights that was adopted by the

United Nations General Assembly and learned that even Iran among other Muslim

countries voted for it. And it gets even better because Article 16(1) is right on point. It

provides that "[men and women] are entitled to equal rights as to marriage, during

marriage and at its dissolution.” But, then this pathway turned bumpy. The Universal

Declaration turns out not to be a treaty ratified by member nations. It is more of an

enabling legislation. Fortunately, it led to an impressive treaty on point. In the

Convention on the Elimination of All Forms of Discrimination Against Women, Article 16

provides that the "States Parties shall take all appropriate measures to eliminate

discrimination against women in all matters relating to marriage and family relations

and in particular shall ensure, on a basis of equality of men and women: ... (c) The same

rights and responsibilities during marriage and at its dissolution.” This treaty was ratified

by one hundred and eighty-five countries. Now, that is an impressive level of agreement

- except, unfortunately, Iran did not ratify the treaty nor did the United States!" Not

ready to give up, I next checked to see if any countries in Iran's neighborhood had

ratified the treaty and discovered that many did, including Egypt, Iraq, Jordon, Lebanon,

Saudi Arabia, and Syria. New hope! But then I noticed these small footnotes called

reservations and quickly secured copies of each footnote. Each of these countries either

generally or specifically opted out of Article 16(c). The reservations opted out, for

example, when the terms violated "norms of Islamic Law" (Saudi Arabia) or were

"incompatible with the provisions of the Islamic Shariah" (Syria).

This promising pathway failed. It did not reveal universal norms, but instead,

revealed unambiguously the lack of universal agreement for the principle of equality in

the dissolution of marriage. This inquiry failed to discover a principled source of

internationally recognized standards that could be the basis for withdrawing from the

mediation.



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(2) Assess whether still impartial or conducting a quality process

At last, I reached the final step in this journey. If the Rule does not violate a

universal standard, is there any other principled basis for withdrawing? A mediator

might withdraw under Standard II of the United States Model Code if the mediator

could no longer be impartial because the mediation is being conducted under a Rule

that violates the mediator's personal values. Threats to impartiality arise anytime the

mediator becomes conscious of something unfair in the mediation that is impacting on

one of the parties. This is familiar territory for mediators, and mediators know to

withdraw when the mediator thinks he or she can no longer be evenhanded. The

mediator also might withdraw under Standard VI if the mediator feels that this unfair

Rule compromises the quality of the mediation process. Of course, if the mediator's

decision to withdraw is based on his or her own cultural value, the decision would

expose the mediator to the ultimate charge of cultural imperialism - the charge that the

mediator is claiming that “my cultural value is better than your cultural value.”

However, the mediator would reach this result as a last resort after respectfully and

diligently researching the other cultural practice and confronting fully his or her own

value to determine whether the implicated value is so fundamental that the mediator

could not mediate a case in which it is violated.

Despite these concerns, I suspect that many westernized mediators would not

withdraw. Instead, they would likely rely on the common refrain that "it is the parties'

process" – as I and others have often declared – "so we should defer to their choice."

Nevertheless, in this particular case, I would likely withdraw, so I thought.

Withdrawal was the direction I was going until my research assistant innocently

asked what would happen next. "Would what would happen after withdrawal be better

than the mediator continuing," she inquired. Yes. She queried what their BATNA would

be if the negotiation in the mediation was prematurely halted.

To work through her inquiry, I ventured down two different pathways. I first

wondered whether the BATNA would provide a fair (or at least a fairer) process. If it

would, a decision to withdraw would seem easy to make. The parties would be

relegated to a better process, and the Wife would have the opportunity to possibly

improve her situation.

The second pathway entailed the opposite inquiry - whether the BATNA would not

likely lead to a better process. If it would not, a decision to withdraw would negatively

impact on the disadvantaged party. If the mediator withdraws, the wife would lose

access to help by a third party with expertise in dispute resolution, a third party who

might be culturally sensitive to this unequal power dynamic, and who might be able to

help the parents negotiate further details within the parameters of the agreement. A

mediator who continues with the mediation might be able to help the parties negotiate

valuable details that might benefit the children including addressing such issues as



23

visitation' by the non-custodial parent and education plans for the children.

This was the most difficult decision moment for me. After trying to research the

wife's BATNA and much cogitating, I thought I still would withdraw if faced with this

dilemma. I would not want the mediation process (or me) to be associated with such an

unfair mediated result. I would want to avoid conferring the imprimatur of mediation on

a process and result that violated such a core value of fairness-even when my definition

of fairness was shaped by distinctively westernized values. This is what I had concluded

in two presentations of the paper and in what I thought was my final draft.

Thanks to challenges by colleagues and friends, however, I discovered that I was so

determined to withdraw that I had become blinded to the significant benefits of

continuing for the parties. I am now inclined to continue to mediate. If both parties

want to continue with me and the mediation, I think I should try to mediate the best

agreement which the parties are willing to enter into so long as the agreement is not

illegal.

When conferring with others, I was repeatedly asked why these parties would hire

a western, non-Muslim mediator. I suspect many parties would not. They would

probably prefer a Muslim mediator, and they would have many choices these days [...]

Please view the interview that follows before moving to the Question and Answer module.

Please note that interviews and Q & A are a mandatory part of the program.

module i: summarizing the literature -...

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