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<xTITLE>Theory vs. Reality: Where the Rubber Hits the Road</xTITLE>

Theory vs. Reality: Where the Rubber Hits the Road

by Keshia Osbourne, Bruce Ally
January 2021

After spending four months and 140 hours of intense theoretical study, I walked away from one of Toronto’s leading Universities with a certificate in Dispute Resolution. I was frequently told that this training had prepared me to be a mediator and that I had the capabilities and was ready to mediate any matter in any field.  In fact, this mantra was stated on the first day of the course by the director and was frequently repeated by all my professors during each class and for the entire program. I was told I just needed to understand the steps of the process and then I would be able to mediate any matter with anyone. With my only experience coming from role plays in school, I decided to test my skills in a safe environment by obtaining an internship. The focus of this 80-hour program was to supervise me during observations, co- mediations and mediations while also allowing me to complete the requisite qualifications for the qualified mediator (Q.Med.) designation

 My first day at one of the only civil internship facilities in the city of Toronto (A Place for Mediation) was spent reading the briefs from the parties. This material was much longer than the inadequate paragraphs we used for our role plays. I was now challenged with learning the new skillset of understanding how to apply case law, since both parties had quoted cases to support their position. This was an area that I was totally unfamiliar with as it was not taught in the program.  Additionally, I had to spend an inordinate amount of time on preparation, which was totally downplayed in the program. We were taught to use the sketchily provided scenarios from both sides and information obtained during pre-mediation. The underlying premise being that these facts along with a sterling process would ensure resolution and that any agreement flowing thereof would be a “wise “solution 

I, like many of the others trained in the program, do not have a law degree, so it took me all day to get an understanding of what the relevant laws/acts, types of damages, threshold deductibles that were applicable.  Unfortunately, we were assured that this would be no problem because we only needed to understand the steps of mediation. However, on the first day, I realized this was happening in a legal setting and any resolution would need to be based on the principles of law that would apply. Especially if we were to create what I thought was so significant, a wise agreement. A wise agreement is necessary so that, if there was a breakdown in process, the trier of fact, a Judge, would consider all the relevant factors prior to making an order. If any of these were omitted in the creation of the mediation agreement it would result in a lopsided agreement. One that most likely would be overturned. 

 In order to appreciate the considerations affecting a judge’s ruling on similar matters in the past and the possible outcomes either side could face. I then had to try to find case laws for both sides so I would understand the nuances. Needless to say, there was a huge learning curve and I was greatly unprepared for my training. Here I was in my first case and I was stumped on how to I apply the theory to the reality. Then my mentor Bruce Ally took the time to explain the process by which I could gain some insight and be better equipped for the matter before us. It involved understanding the lay of the land and how the law would apply in the decision and what kind of considerations would influence the judge. 

The courses I took were great but not enough, it needed more to prepare me to actually mediate in this industry. There is a major disconnect between what is being taught and how mediation is currently being conducted. The process of how mediation is done needs to be updated to match the current times. We were told that most people do not do shuttle mediation. In fact, the lawyers prefer shuttle mediation because it helps to reduce the raw emotions the parties are feeling and enable them to come to a solution. I saw firsthand how effective caucusing can be. Even if they do not settle during the mediation, many usually settle shortly after and certainly before the court date. when they have had some time to think about what was said, and the implications of a possible loss. 

It is obvious that one model cannot apply to all matters especially when dealing with such divergent a range of matters. Not being taught there were different processes in mediation is a disservice to students who have spent their money and time to learn how to mediate and now are still not truly equipped to do so. In fact, the only hope of being successful requires them to spend more time and possibly money in learning how mediation is done currently. While it is important to have a solid foundation on the theory of mediation, which I did receive, it is not enough to sell the theory as being sufficient. The problem with receiving my certificate is that I am still not ready to mediate any matter.  I recognise there will always be a learning curve between what is taught in the classroom and how it is really done in the field, but there does need to be some similarity and there cannot be such a vast chasm between the two, as I have come to see in my practicum.

There is an opportunity to teach students current mediation practices that I feel is missing. The coaches that are used to assist with the role plays should be allowed to demonstrate how they mediate. The concepts of mediation are the same no matter what field you are in but, its execution is different and dependent on the type of mediation, this is the crucially missing ingredient in our education. Community mediation is conducted differently than family mediation or workplace mediation and that should be demonstrated. The teachers could give the student the option to research the area they might want to mediate in so they can gain mastery of at least one process. 

Instruction in mediation must focus on the various types of mediation and how to conduct them. Civil mediators should have a better understanding of various by-laws, workplace mediators need to understand employment protocols. Our instructions on how to prepare for a mediation were inadequate. True enough we were taught how to do an introduction, and types of questions to ask for pre-mediation. The issue for me is how can you mediate in an area that you know nothing about? How do you even know what questions to ask? Often the parties are stuck in their positions, how can you do a reality check if you cannot appreciate why their position is unrealistic? It is vital to understand what remedies exist for the parties in law and to be able to explain it to them. Often parties do not listen to what their lawyer are telling them and hearing from a neutral person can be more effective, since they can highlight the option to get some of what they want versus possibly getting nothing at all, which can often facilitate their decision. 

The best decision I made was to seek out an internship. It gave me the opportunity to see firsthand how real mediations are conducted and can vary depending on what is being mediated. The mediator is more than just a person going back and forth between the parties reframing what the other side said. The mediator is integral in the role of helping the parties and their lawyers seek a resolution without having to spend more time and money on the matter by going to court and, possibly being worse off than if they had settled in mediation. Mediators coming out of their programs need to know more than just the theory of mediation, they need to know the various methods of the mediation process. This would enable the mediator to provide the parties with the best of what mediation can offer them. It is not possible to show all of the various processes, but more than one process needs to be shown. Since completing my internship I now feel prepared to start my own mediation practice more so than after I completed my Certificate program in Dispute Resolution, I encourage everyone to do internship.  My thanks to my mentor Bruce Ally.

Biography



Keshia Osbourne works as an associate at A Place for Mediation. She is certified by the Workplace Fairness Institute (WFI) as a Workplace Fairness Analyst and is on the WFI roster.


Bruce Ally is the founder of A Place for Mediation. As a mediator in private practice he has conducted in excess of 4000 matters. He is an instructor in the Lawyer in Negotiation course at Osgood Hall Law School, and a facilitator in the Advanced Mediator Program and the Workplace Elective at York University. He is currently on the Attorney General Roster and a Member of the Workplace Fairness Institute.