MEDIATION EXAM PREP-

W1: UNDERSTANDING CONFLCIT AND THE RISE OF MEDIATION

CONFLICT IS WHAT DRIVES THE LEGAL SYSTEM
• What is conflict? Disagreements- person or ideology. To fight or content- incompatibility or
interference. (2 sides).

• Examples of conflict- Between countries, institutions- govt and corporate, property, divorce,
religious.

-Root causes- different beliefs, miscommunication, financial. Taking action against something
you don’t agree with.

• Conflicts in our lives- inevitable.

• Law is driven by conflict- seeks to establish means that limit/eliminate conflict- educate people
about expectations they need to follow. Punishment for engaging in or inciting conflict. Our
government and legal system encourages us to have conflict because without conflict we would not need
elections and things like that. Conflict is not inherently negative. Conflict can be good and allow for
gaining better perspective. The courts stop conflict by making decisions and imposing punishments such
as fines, incarceration, restricting one’s actions, and many others. if there was no conflict, there’d be no
law. Our legal system was created with the express purpose of dealing with conflict.

Reasons to avoid conflict: - Personal safety - Public perception - It can be unnecessary - To prevent
potential loss. Engaging in conflict often ends up in someone losing something (e.g. pride, relationship)

COMMON LAW-
Norman conquest 1066- to combine all law and put different jurisdictions together. Crown
established a law which was followed by all jurisdictions- similar treatment for similar crimes.
same judges travelled from different places to make different decisions on different cases.

Common law- creation of a history where same judges make same decisions on similar cases.
Long ago, different jurisdictions had different laws. This obviously created some problems because it was
inconsistent. The idea of a common law system was founded to eliminate these inconsistencies by
making future decisions reliant on previous similar decisions.

Stare decisis- precedent- the idea that decision is made across all jurisdictions and is binding
upon all. Created to establish fairness and equity. Don’t disturb the undisturbed- unless there is
good reason to do so.

Judges and decisions- judges decider of law- jury is the decider of fact. Receive instructions
relating to the legal test by the judge.

Civil law- Quebec and abroad- non-traditional/western countries.

Its different- everything is codified into a statute. Imported from different jurisdictions- eg-
Quebec got its jurisdiction from France.

3 BRANCHES OF THE GOVERNMENT

1. judiciary- the legal court- hear cases brought to them. Make decisions based upon factual data.
Interpret the law.
2. legislative- make laws. Elected by the people-MPs.
3. executive- ensure that legislation is executed constitutionally. Executive places restrictions on
what law can or can’t be passed.

STRUCTURE OF OUR LEGAL SYSTEM

1. federal/ provincial powers- control over municipality.
2. Civil Matters-
3. Superior Courts - responsibility for these courts is both provincial and federal.
4. Courts of Appeal- each province has its own COA- has its own rules relating to its daily
functions.
5. Supreme Court- federally controlled body- final court.

In Canada, we have a federal state with a constitutionally empowered provincial state. The provincial
government has jurisdiction over the administration of justice in the province and the rules of civil
procedure. In Ontario, civil matters are heard in the provincial superior court. The responsibilities of this
superior court are split between the province and the federal government. The federal government
appoints the judges that sit in the superior court and the province is sort of responsible for everything
else. The supreme court is the highest appellant level of the court system in Canada.

ROLE OF OUR COURTS

-Resolve legal disputes- citizens, institutions, and govt bring before them and ask them to decide.
Judges interpret and apply law- outcome of case decided.

-Maintaining democracy- establish rule of law which is equally applicable to everyone

irrespective of power, prestige, and other factors. Keeping the legislative and executive branch in
check.

-Independent and impartial judiciary- not influenced by prominent powerful entities-

legislative/executive don’t influence or pressure each other.
- Security of tenure- cannot be fired- impeachment. Can’t be terminated without just cause.
- Financial security- can’t be bribed to make unlawful decisions- have to be paid enough.
- Administrative independence- courts are administrated by the judges and no one else.
Separation of govt branches- no influence.

What does the role of the role of the judiciary, judicial independence, judicial accountability,
judicial activism have to do with mediation?
THE RULES OF CIVIL PROCEDURE
• Discussion Piece – Handbook for Clerks & Articling Students
There is currently an articling student crisis because there are way more fresh law school graduates than
there are articling positions. So now a lot of fresh law school grads that have been called to the bar but
have not received an articling position just accept legal aid certificates and this is terrible because they
have not been appropriately mentored yet. The law society of Ontario oversees lawyers in Ontario but
they don’t do much so there isn’t much oversight of lawyers. The law society of Ontario can reprimand
you, but they don’t really do much other oversight.

• How do you commence a legal process? What happens next?

Statement of claim- commence a legal process. Person served has to respond- within period of
notice. (Not uniform process- varies based on location, issue, etc.) (respond- counter claim- don’t
respond- go to court) if both respond- depends on the issues of the case- civil cases- discovery-
both sides interview main person of either side. (8hrs a day- could take up to a few days). Case
conference- disclosure, settlement- if you cant get a result- need document from other party-
subpoena document (at trial)- motions- on a final level or an interim level. More conferences…

• Why do we have rules of civil procedure? Keep it equal for everyone involved in this process.
Complicated- to spend money on lawyers. To not waste money on trial.

• How coherent are there rules?

OUR LEGAL SYSTEM IS SICK - ACCESS TO JUSTICE

• Objectively, what do we know about access to justice? - Complicated, expensive- need lawyers
to understand and maneuver through the process. Delayed.
• How does the state respond? Early summary motion- bring a trial to end before it starts. Small
claims court- claim has to be worth 35k.
• Subjective musings from a lawyer
• Articling Student Crisis- shortage- companies don’t want to hire students.
• Oversight of Lawyers- law society of Ontario.

Every 6 of an hour. 3-day trial- 80-90k.

THE RISE OF MEDIATION

• Mediation has existed for centuries.- emerged as a conflict resolution process in recent times.
• The Quiet Revolution- why are people turning away from traditional process?

• Why do people embrace mediation? (benefits of mediation)

• informal and flexible path- two people meet/ don’t meet based on their wants and desires.
• cost and time-saving- inexpensive and time efficient.
• overcoming cultural barriers
• improving communications- its all about communicating with the other person to reach an
amicable solution.
• restoring or maintaining relationships- helps people get along better.
• promoting confidentiality- can’t disclose information.
• producing more creative, satisfactory and durable resolutions
Mediation is more cost-effective, efficient, and more flexible than litigation. While litigation has a safeguard by
way of a judge to ensure parties come to the right decision for everyone involved, litigation does not have such safe
guards and so parties can make the wrong decision even without realizing it.

Mediation has become so popular in civil disputes because it is informal and flexible. Mediation can be whatever
the parties want it to include. Mediation is cost effective and time efficient. It can allow you to overcome different
barriers that might be standing in the way of you and the opposing side. Mediation functions to improve
communications, to promote confidentiality, and producing more creative, satisfactory resolutions.

SO WHY DO WE HAVE COURTS ANYWAY?

• What do we expect from conflict resolution?
• What are the roles of lawyers?
• How does this impact our perceptions of justice?
• What about brain science, technology, our understanding of cognition?

Justice is what the judge says it is- what happens if parties are able to come up with their own
solution?

W2: NEGOTIATION AND THE NEGOTIATION THEORY

WHAT IS NEGOTIATION?
• Compromise
• Discussion
• Positions
• Interests
• Information – Deployed & Gathered

Negotiation lull’s people into a false sense of security

• Negotiation seems like an intuitive concept.
• Negotiation seems very straightforward.
• Negotiation seems like anyone can do it.
• But negotiation is extremely complicated.

How does one exceed at negotiation?

• Be manipulative
• Be perceptive
• Understand human cognition
• Be ethical.

Lawyer’s & Negotiation

• How much does a lawyer negotiate?
• A Lawyer Negotiates With: Opposing Lawyers on a File, Their own employers & more senior
lawyers at their firm, Their client’s, Third parties helping out their clients.

NEGOTIATION THEORY
• Birthplace of Negotiation Theory- development of negotiation theory in law schools and
business schools. Early theories of negotiation relied on an amalgam of conceptual works from
economics and game theory,2 labor relations,3 international relations,4 and social psychology. Only
into the 1980s, as negotiation courses became more standard, did material and experts in
negotiation emerge. In the mid-1970s, business schools began to recognize that negotiation and
conflict management skills. For law schools, a focus on negotiation as problem-solving coincided
with the growth of alternative dispute resolution as a method for resolving cases outside the
courtroom. Did not emerge together- negotiation skills and mediation was reflected in the
development of negotiation theories emerging from law professors.

• Concept of negotiation theory – circular nature- (chatgpt) The concept of negotiation theory often
involves the idea of a circular nature, suggests that negotiations typically follow a series of interconnected
and iterative stages. While the specific stages may vary in different models, a common representation
includes: prep and planning- identifying interests/goals, assessing the others interests and potential
strategies, opening- establishing rapport, positive tone, initial proposals, exploration- exchange info,
identify common ground/differences, clarify needs/concerns, bargaining- making concessions, proposing
and counter proposing, seeking mutually beneficial agreements, agreement- finalize terms, document it,
gain commitment, implementation- fulfilling agreement, monitoring compliance, review and closure-
assessing the negotiation process, identifying lessons and prep for future interactions.
The circular nature of negotiation theory is evident as parties may revisit and cycle through these stages’
multiple times during a negotiation:
 Feedback Loop: Information obtained during the negotiation process may prompt a revisiting of
earlier stages as parties adjust their strategies or redefine their priorities.
 Changing Circumstances: External factors, evolving interests, or new information can prompt a
return to earlier stages or a revaluation of the negotiation approach.
 Iterative Decision-Making: Parties often make incremental decisions throughout the
negotiation, and each decision may influence subsequent steps.
 Adaptability: Negotiators may need to adapt their tactics based on the other party's responses,
leading to a continuous adjustment of strategies.

Understanding the circular nature of negotiation emphasizes the dynamic and interactive aspects of the
process. It encourages negotiators to be flexible, responsive, and open to adapting their approach as the
negotiation evolves.

• Prisoner’s Dilemma (ask for two helpers)- The Prisoner's Dilemma is a classic game theory
scenario that explores the tension between cooperation and self-interest. In a negotiation context, you
can use the Prisoner's Dilemma to illustrate certain dynamics where two parties must decide whether
to collaborate or act in their individual best interest. Elements of this dilemma- Mutual Benefit
(Cooperation)- If both companies cooperate and work together effectively, they can achieve a joint
venture that maximizes overall profits. Trust and communication.
Betrayal (Defection)- If one company defects (acts in its own best interest without considering the
other), it may gain a short-term advantage but potentially undermine the success of the joint venture.

• Diverse field of negotiation theory- (mentioned above- underlined)

Negotiation theory in the U.S. should both give advice for how to deal with cross-cultural
and international disputes while receiving the best advice from negotiators
around the world. And our best theory of negotiation should operate in a
continual cycle of learning from practice, building a theory, testing that in
practice, and refining the theory in order to really make it practical.
Cross cultural factors- challenge for mediation. China- Chinese negotiations vs US- western negotiation.
These five skills are assertiveness, empathy, flexibility, social intuition, and ethicality. Without a full
repertoire of skills, it becomes nearly impossible to have sufficient style choices. With a standard
template of skills, students can start to evaluate and review their negotiation skills for level of
expertise in their multiple interactions.

TYPES OF NEGOTIATORS-

• Cooperative- A cooperative negotiator is an individual who adopts a collaborative and problem-

solving approach to negotiations. Instead of focusing solely on maximizing their own gains at the expense
of the other party, a cooperative negotiator seeks to create value and find mutually beneficial solutions.
This approach is often associated with integrative or win-win bargaining. Focus on Mutual Gain:
Cooperative negotiators aim to achieve outcomes where both parties benefit. Open Communication:
Cooperative negotiators emphasize open and transparent communication. Problem-Solving Orientation:
Instead of viewing negotiations as a zero-sum game, cooperative negotiators approach challenges as joint
problems to be solved. They seek creative solutions that meet the interests and needs of both parties.
Long-Term Relationship Building: Cooperative negotiators often consider the long-term implications
of their interactions. Building and maintaining positive relationships with the other party is a priority, as
they recognize the potential for future collaborations. Flexibility and Adaptability: Cooperative
negotiators are open to adapting their positions and strategies based on new information or changing
circumstances. Emphasis on Fairness and Equity: Cooperative negotiators strive for fairness and equity
in the negotiation process. They are concerned with ensuring that both parties feel they have been treated
justly and have received a fair share of the benefits. Building Trust: Trust is crucial in cooperative
negotiations. Negotiators who are perceived as trustworthy are more likely to foster collaboration and
cooperation, leading to better overall outcomes. Win-Win Mindset: Cooperative negotiators embrace a
win-win mindset, where success is defined by both parties achieving their objectives. They reject the
notion that one party must lose for the other to win.

• Combative- A combative negotiator is someone who adopts an adversarial and competitive approach
to negotiations. Unlike cooperative negotiators who seek to create value and find mutually beneficial
solutions, combative negotiators tend to prioritize their own interests and outcomes at the expense of the
other party. Competitive Mindset: Combative negotiators approach negotiations as a competition where
one party's gain is perceived as the other party's loss. They may view the negotiation process as a zero-
sum game.
Assertion of Power and Dominance: Combative negotiators may assert their power and
dominance in the negotiation, seeking to control the process and dictate terms to the other party.
Limited Information Sharing: Unlike cooperative negotiators who prioritize open
communication, combative negotiators may be more guarded with information. They may
strategically share information to gain an advantage.
Positional Bargaining: Combative negotiators often focus on positions and fixed demands rather
than underlying interests. They may take a firm stance and be less willing to explore creative
solutions.
High Level of Assertiveness: Combative negotiators tend to be assertive, assertively pursuing
their objectives and expressing their positions forcefully.
Win-Lose Orientation: The primary goal for combative negotiators is to secure the best possible
deal for themselves, even if it comes at the expense of the other party. They may be less
concerned with creating value or finding compromises.
 Limited Relationship Building: Relationship building is often a secondary consideration for
combative negotiators. They may prioritize immediate gains over the long-term relationship with
the other party.
Limited Flexibility: Combative negotiators may be less willing to adapt their positions or
strategies. They may see flexibility as a sign of weakness and may resist making concessions.
Use of Competitive Tactics: Combative negotiators may employ tactics such as bluffing, threats,
and aggressive framing to gain an advantage. They may seek to exploit the weaknesses or
vulnerabilities of the other party.
Outcome-Oriented: Success, for combative negotiators, is often measured by the degree to
which they achieve their predetermined goals, even if it means the other party perceives the
outcome as unfavorable.

• Combination of the Two- A combination of combative and cooperative negotiation elements is often
referred to as an "integrative" or "collaborative" negotiation style. This approach seeks to blend aspects of both
competitive (combative) and cooperative negotiation strategies to achieve outcomes that are beneficial for all parties
involved. Interest-Based Bargaining: Instead of focusing solely on positions and demands (as in combative
negotiation), integrative negotiators explore the underlying interests and needs of both parties. This allows for the
identification of common ground and opportunities for mutual gain. Problem-Solving Orientation: Integrative
negotiators approach negotiations as joint problem-solving endeavors. They seek to collaboratively address issues
and find creative solutions that meet the interests of both parties.
Open Communication: Similar to cooperative negotiators, integrative negotiators value open and
transparent communication. FLEXIBILITY, WIN-WIN, LONG-TERM RELATIONSHIP, FAIRNESS.
Selective Assertiveness: Integrative negotiators may use assertive tactics when necessary to advance their
interests, but they balance this with a collaborative and cooperative approach to maintain a positive
negotiation atmosphere. Shared Decision-Making: In integrative negotiation, there is a focus on involving
both parties in the decision-making process. This helps to build commitment and ownership for the agreed-
upon solutions. Integrative negotiation represents a more holistic and flexible approach, recognizing that
negotiations can involve both competitive and cooperative elements.

BATNA
• Best alternative to a negotiate agreement/settlement- BATNA refers to the course of action a party
will take if a negotiation does not result in an agreement. In essence, it represents the best option available
to a negotiator if the current negotiation fails to meet their objectives. BATNA provides a baseline for
evaluating the attractiveness of any proposed agreement. If the negotiated deal is better than the BATNA,
it may be considered a good agreement.

• If not this – WHAT? In the context of negotiation, particularly in mediation, if not relying on
BATNA, another important concept to consider is the "Zone of Possible Agreement" (ZOPA). The
ZOPA is the range where an agreement can be reached that is acceptable to both parties. It represents the
overlap between what each party is willing to accept and can provide a basis for a mutually beneficial
resolution. In mediation, the mediator often plays a key role in helping parties identify and expand the
ZOPA. Through active listening, reframing issues, and facilitating communication, the mediator can assist
in finding common ground. Mediators often encourage creative problem-solving to expand the ZOPA.
This may involve exploring additional options, considering trade-offs, and finding solutions that meet the
underlying interests of both parties. Mediation often adopts an interest-based approach, where the
mediator helps parties identify their underlying needs and interests. By focusing on interests rather than
positions, the ZOPA can be broadened. WIN WIN. Mediators may engage in reality testing to help parties
assess the feasibility and desirability of potential agreements within the ZOPA. This involves evaluating
options based on practical considerations.
• BATNA as the most important aspect of negotiations- Importance: Understanding and
assessing your BATNA is crucial in negotiations. It provides a benchmark for evaluating the
attractiveness of any proposed agreement. If the proposed deal is better than your BATNA, it may be
considered a good agreement; if not, it might be wise to explore other options. Objective Standard:
BATNA serves as an objective standard for evaluating the strength of your negotiating position. It helps
negotiators avoid settling for an agreement that is worse than what they could achieve by pursuing their
alternative. Preparation: Successful negotiators invest time in preparing and identifying their BATNA
before entering into negotiations. This preparation allows them to negotiate from a position of strength
and confidence- more negotiation power. Dynamic Nature: BATNA is not static; it can change based on
new information, developments, or changes in the external environment. Continuous assessment of
BATNA is important throughout the negotiation process. Risk and Uncertainty: BATNA helps manage
risk and uncertainty. By having a clear understanding of the alternative options, negotiators can make
more informed decisions and navigate uncertainties with greater confidence.

• ZOPA & How it lines up with BATNA- both are crucial concepts in negotiation. BATNA is
often considered in conjunction with the Zone of Possible Agreement (ZOPA), which represents the range
or zone where both parties in a negotiation can find mutually acceptable terms. BATNA serves as a
bottom line or reservation point. If the negotiated agreement does not meet or exceed the BATNA, a party
may be better off pursuing their alternative. ZOPA is the range where an agreement is possible. It
represents the space between the buyer's and seller's acceptable points. Successful negotiations aim to
find a deal within this range. Ideally, a party's BATNA should be positioned at a level that is at least as
attractive as the bottom of the ZOPA. This ensures that walking away from a negotiation results in an
outcome that is not worse than the negotiated offer. A strong BATNA provides negotiating power. If a
party's BATNA is better than the ZOPA, they may negotiate more assertively, knowing that they have a
viable alternative. The strength of a party's BATNA can influence the ZOPA. If one party has a strong
BATNA, it may shift the ZOPA in their favor, making the other party more willing to make concessions.
In evaluating a proposed agreement, negotiators compare it not only to their BATNA but also to the
ZOPA. A deal within the ZOPA but better than the BATNA is generally considered a favorable outcome.
Understanding both BATNA and ZOPA provides negotiators with strategic flexibility. They can adjust
their negotiation approach based on the overlap between acceptable outcomes and potential alternatives.
In summary, while BATNA sets a negotiator's reservation point, ZOPA defines the range where an
agreement is possible. The negotiation process involves maneuvering within this ZOPA while being
mindful of the strength and attractiveness of each party's BATNA. Successful negotiators strategically
leverage both concepts to achieve favorable outcomes.

TYPES OF NEGOTIATIONS
• RIGHTS- Rights-based negotiation is an approach to negotiation that emphasizes the legal or
contractual rights and obligations of the parties involved. In this type of negotiation, the focus is on
determining what is fair and just based on established legal principles, agreements, or precedents.
Negotiators using a rights-based approach often refer to objective criteria to assess the fairness of
proposed solutions. This may include legal statutes, industry standards, or other widely accepted
benchmarks. emphasis is on finding a fair and just resolution based on the rights and obligations of the
parties involved. Rights-based negotiators typically engage in open information sharing to ensure that all
parties have a clear understanding of the relevant legal context. This transparency helps build a common
understanding of the rights and responsibilities involved. In some cases, rights-based negotiations may
involve the assistance of third parties such as mediators, arbitrators, or legal experts who can provide
guidance on legal rights and help facilitate the negotiation process. Agreements reached through rights-
based negotiation are often seen as more enforceable, as they are grounded in established legal principles.
Rights-based negotiation often encourages a long-term perspective, considering the enduring legal
relationships between the parties. This can contribute to building and maintaining positive ongoing
relationships.

• INTEREST- approach that focuses on identifying and satisfying the underlying interests, needs, and
concerns of the parties involved. Instead of rigidly adhering to positions or demands, interest-based
negotiation encourages parties to explore and understand each other's underlying interests. Interests are
the fundamental needs, concerns, or desires that motivate a party to engage in the negotiation. Interest-
based negotiators view negotiation as a joint problem-solving process. The goal is to find creative and
mutually beneficial solutions that address the interests of all parties involved. Effective communication is
essential in interest-based negotiation. Parties are encouraged to openly share their interests, needs, and
concerns to foster a better understanding of each other's perspectives. Interest-based negotiation involves
generating a variety of options and alternatives that can address the interests of all parties. This
encourages brainstorming and creative problem-solving to expand the range of potential solutions.
Interest-based negotiation is often characterized by a win-win mindset. Interest-based negotiation
encourages parties to separate the people from the problem. By depersonalizing issues and focusing on
interests, negotiators can maintain more constructive and less adversarial relationships. Interest-based
negotiation places value on building and maintaining positive relationships. By addressing underlying
interests, negotiators can create a foundation for ongoing cooperation. Identifying common ground is a
key aspect of interest-based negotiation. By finding shared interests, negotiators can build consensus and
create solutions that satisfy multiple parties.

• WIN-WIN- A win-win negotiation is an approach to negotiation where both parties involved achieve
their objectives and leave the negotiation feeling satisfied with the outcome. In win-win negotiations, the
focus is on creating value and finding solutions that meet the interests and needs of all parties. Coop-
collab. Interest based. Value creation. Problem solving. Open communication. Flexibility. Long-term
relation- shared decisions. Success- Parties in a win-win negotiation may establish objective criteria or
standards for evaluating proposed solutions. This ensures that the outcome is perceived as fair and
reasonable by all parties.

• WIN-LOSE- Win-lose negotiation, also known as distributive or competitive negotiation, is an

approach where the outcome is perceived as a zero-sum game, meaning that what one party gains, the
other party loses. In win-lose negotiation, the focus is on maximizing one's own interests or gains without
much consideration for the interests of the other party. SAME FEATURES AS COMBATIVE
NEGOTIATORS. Creativity in problem-solving may be constrained in win-lose negotiations. Parties may
not explore alternative options that could lead to mutually beneficial outcomes.Win-lose negotiations can
create an adversarial atmosphere where there is little trust or collaboration between the parties. The
negotiation process may be tense and confrontational.

W3: WHAT IS MEDIATION AND THE ROLES OF PARTIES?

MEDIATION IN THEORY
• Party self-determination- Mediation is a process grounded in party self determination. Party self
determination is basically the party (individual) deciding and having a say in everything about the
process.

• Relief from the rigid court process- Mediation is a type of mercy which provides relief from the
formal justice system which is adversarial in nature. An adversarial system is when they are two people at
odds opposing (fighting) each other. Ideally, mediation is not meant to be adversarial, however, due to the
mediation process becoming more dominated by lawyers who are very adversarial, mediation is moving
towards becoming more adversarial. the reason why litigation is so adversarial is because the lawyers are
looking to obtain an objective statement/ ruling (judge’s ruling) in their favour. Mediation is a refuge
from court because: - it is more confidential than court proceedings. - It is a financial refuge. It is more
cost effective - It is more efficient - It is also an emotional refuge. Prevents clients from going through the
frustration of court proceedings. Its exhausting for both the lawyer and client.

• Individualized justice- It also allows clients to experience individualized justice through the exercise
of self determination. In court a judge imposes a decision on you. In mediation however you form the
basis of the process and are able to have a say in the decisions and reach an outcome that is fair to both
parties.

• Reorientation of the participants- Mediation can result in a reorientation of participants through

various processes and dynamics inherent in the mediation approach. Mediation often emphasizes open
and constructive communication. By providing a structured and facilitated environment for dialogue,
participants can experience improved communication, leading to a better understanding of each other's
perspectives. The mediation process encourages participants to actively listen to one another and consider
each other's viewpoints and underlying interests. This empathetic understanding can foster a shift from
adversarial positions to a recognition of shared concerns. Mediation encourages participants to identify
and discuss their underlying interests and needs rather than rigid positions. Shifting the focus to common
interests allows for collaborative problem-solving and can contribute to a more positive outlook. The
structured and neutral nature of mediation can help reduce the level of hostility and animosity between
participants. As communication becomes more constructive, participants may be more open to finding
common ground. Mediation provides an opportunity to address power imbalances and create a more level
playing field. This can empower participants who may feel disadvantaged in the traditional negotiation
setting, leading to a reorientation in their perception of the negotiation process. In mediation, participants
have a direct role in shaping and agreeing upon the solutions. This sense of ownership over the outcomes
can lead to a reorientation in participants' attitudes, as they are actively involved in crafting the resolution.
Mediation often emphasizes the long-term relationships between parties. Participants may reorient
themselves toward considering the impact of their decisions on future interactions, fostering a more
cooperative and forward-looking mindset. In cases where legal issues are involved, mediation can provide
participants with a better understanding of the legal context and potential outcomes. This increased
awareness may influence participants' perceptions of their rights and responsibilities. Mediators often
encourage cultural sensitivity and awareness. Participants may gain a deeper understanding of each
other's cultural backgrounds, leading to a reorientation that values diversity and promotes inclusivity. The
mediation process itself, with its emphasis on cooperation, active listening, and mutual respect, can lead
to behavioral shifts in participants. They may carry these newly developed skills and attitudes into future
interactions.
A mediation is a discussion between two or more parties with a neutral third party who is the mediator
over the discussion. Mediation is voluntary.

VOLUNTARY

• How does that differ from other forms of justice or dispute resolution?
• Mediation as consent, not forceful.
• You can escape mediation.
Litigation is a form of forceful justice. you don’t get to decide when to easily back out of the litigation
process without a settlement being reached. With mediation, you can always escape when you don’t feel
like it. You can go to mediation with or without a lawyer. mediation is confidential. The documents or
information shared at mediation cannot be compelled to be brought up in court. Anything that happens
during a mediation is protected by confidentiality. Just because information is disclosed at mediation
doesn’t mean its protected – that is, if someone finds another means of finding out that information, it
can be brought up in court. During mediation, one lawyer or client can say things to the mediator
without the other party being present and the mediator is bound by law not to disclose that information
to the other side. Lawyers also have an informal discussion during mediation without the clients being
present. The discussion is between the lawyers about the clients and what they want and all. This
discussion is ‘confidential’ but not confidential. It is confidential in the sense that the lawyers trust each
other not to disclose the information spoken about to their clients but its not confidential by law.
Mediation confidentiality does not include threats of violence or any past or future acts of violence
towards children.
• BATNA- BATNA (Best Alternative to a Negotiated Agreement) and the concept of voluntariness are
both fundamental elements in the field of negotiation, and they play distinct but interconnected roles in
shaping the negotiation process. A strong BATNA contributes to the voluntariness of negotiation. When
negotiators have attractive alternatives, they can participate in the negotiation with a greater sense of
autonomy and less dependency on the current negotiation for a satisfactory outcome. The strength of a
negotiator's BATNA can influence the power dynamics in the negotiation. A robust alternative may
provide the negotiator with the confidence to walk away from a deal that does not meet their needs,
reinforcing the voluntariness of their participation.

CONFIDENTIAL

• How is mediation confidential and the other forms of dispute resolution not?
Confidentiality is a key feature of mediation that distinguishes it from other forms of dispute resolution.
While confidentiality is a fundamental principle in mediation, other processes like litigation or arbitration
may involve more public and formal procedures where information becomes part of the public record.
Mediation typically takes place in a private and informal setting, such as a mediator's office or a neutral
venue. This environment allows for a more confidential and comfortable exchange of information
compared to formal courtrooms or arbitration hearings. The discussions and communications that occur
during mediation are considered confidential. This means that parties are generally not allowed to
disclose what was said during mediation outside of the mediation process. This confidentiality extends to
both joint sessions and private caucuses with the mediator.

• Contents of mediation are confidential, but not the truth of those statements.

• Often touted as a positive thing. - no external influences when rendering decision. mediation,
parties can freely discuss their interests, needs, and potential solutions without fear that their
vulnerabilities or weaknesses will be exposed publicly. This allows for a more open and honest exchange.

PERSONAL EXPRESSION

• Mediation is about personal expression. What does that mean?

• Non-expressive nature of litigation
• Mediation is formed by the parties

PARTICIPATION

• Mediation is about participatory values and promoting participation

• What does that mean? – voluntary, empowerment. Etc.
• How is litigation not participatory? Not voluntary, lawyer does the groundwork.

ADVERSARIAL UNDERTONE

• Mediation strives to be non-adversarial.

• Mediation, however, is adversarial.
• Can we untangle adversarial approaches to conflict from mediation?

INTRODUCTION TO THE MEDIATION - HOW DO WE GET THERE?

• When you do you consider mediation? Mediation can be used at virtually any stage in the process.
It can be done a week before trial, before court papers have been filed, after a trial but before the judge
gives a decision.

• Is mediation ever off the table? High conflict files with extensive history of violence and abuse can be
mediated but it might not necessarily work well in mediation. When there’s a factual dispute that the
parties can’t overcome, mediation might not be effective.

• Is mediation ever mandatory? Mandatory mediation exists in Canada but only in Windsor, Toronto,
and Ottawa. These are civil cases but not family cases. Mandatory mediation is voluntary as well, but
there are penalties imposed for refusal.

• How do you choose a mediator? When choosing a mediator, it is important for your mediator
to have certain skills: - Excellent communication skills - good training - Affordable fees. The best
mediators are experienced lawyers or retired judges who have decided that their experiences are best
served facilitating a mediation.

• How do you start the process? - After a client agrees to go to mediation, the next step would be to
contact the other party and see if they want to go to mediation. If they do, the next step is booking the
mediator. Booking the mediator is not hard but actually scheduling time to attend the mediation is hard
because you have to consider the schedule of all the clients as well as their lawyers as well as the
mediator.

• Preparation for mediation. When preparing for a mediation, you do a mediation brief which involves
the mediator going through what the mediation is for and about and what the parties want out of the
mediation. To prepare for mediation, read the mediation brief, go through the gaps (tell your clients to
tell you any and everything), know what the clients wants to accomplish out of the process, get a good
night sleep and be well rested.

• Does my lawyer attend with me? Lawyers are not necessarily required to be in the mediation. If one
side brings a lawyer, the other party has to bring a lawyer in order to prevent power imbalances. People
who have mental health issues, depressed, anxious or lack insight typically do not do well in mediation.
Those people need a good lawyer or a good mediator in order to go through mediation.

• Where is the mediation held- Some mediators have and office and that is where the mediation
occurs. Some mediators hold the mediation at one of the lawyers’ offices. Some mediators rent an office
space or boardroom for the mediation.
THE MEDIATION ITSELF
• Mediation Agreement A mediation agreement, also known as a settlement agreement or a mediated
settlement agreement, outlines the terms and conditions agreed upon by the parties involved in a
mediation process. This agreement serves as the final resolution of the issues in dispute and is the
outcome of the negotiations facilitated by a neutral third party, the mediator.

• Introduction- Mediation is a structured and voluntary process designed to help parties in conflict
resolve their disputes with the assistance of a neutral third party, the mediator. The process is widely used
in various settings, including legal, workplace, family, community, and commercial disputes. Mediation
offers a collaborative and interest-based approach, aiming to empower parties to find their own solutions
and reach mutually acceptable agreements.

• Joint Session- A joint session in mediation refers to a phase of the mediation process where the parties
in conflict, along with the neutral third-party mediator, come together in the same room to engage in
facilitated discussions. It allows for the exchange of perspectives, concerns, and information in a
structured and facilitated manner. The mediator helps the parties identify and define the issues that need
to be addressed during the mediation. This clarity is essential for moving forward in the negotiation
process. Parties have the chance to gain a better understanding of each other's perspectives, interests, and
underlying concerns. This increased understanding can contribute to finding mutually agreeable solutions.
joint session sets the tone for the mediation process. It establishes a respectful and constructive
atmosphere, emphasizing collaboration and problem-solving rather than adversarial positions. The joint
session fosters a sense of ownership of the process and outcomes. Parties are encouraged to actively
engage in the discussion and contribute to the development of solutions, leading to a more sustainable and
satisfying resolution. The joint session provides an opportunity to address and manage emotions
constructively, helping to create a more conducive environment for negotiation. The mediator may
establish ground rules for communication during the joint session. These rules may include guidelines for
respectful communication, active listening, and the management of conflict during the mediation process.
Through facilitated discussion, parties can begin to identify areas of common ground. This forms the
basis for exploring potential solutions that meet the interests of all parties involved.

• Caucus- The application of the private caucus allows individuals to overcome communication and
cultural barriers, identify, and vent intense feelings, and prevent the possibility of intimidation/reprisal
(Manning, 2006). However, this may be regarded as counterproductive when the mediator ends up with
more information, than the participants, which hinders the values of open communication and increases
the possibility of a bias that threatens the equality, efficiency, and neutrality of the process as a whole
(Manning, 2006). This position of power could be inadvertently used to manipulate parties into settling
disputes and relinquishing accountability (Manning, 2006). To establish credibility and avoid the
possibility of deception or exploitation, organizations must seek reliable mediators who would use the
caucus for what it is meant, to guide them through the negotiation process while ensuring the security of
the parties involved.

WHEN DOES MEDIATION END?

• Time- external, internal, shared mediators. Swift process.
• Settlement Reached
• Settlement cannot be reached, no resolution.
• Settlement can be reached, but need more time.
• Mediation is not an isolated event- Mediation is indeed not an isolated event but rather a dynamic
and evolving process that involves various stages and interactions. It is characterized by ongoing
communication, exploration of options, and a series of structured sessions. a series of interactions aimed
at facilitating the resolution of disputes and building sustainable agreements. The adaptability and
continuous nature of mediation contribute to its effectiveness in addressing a wide range of conflicts.

POST MEDIATION
• Mediator evaluations- In the context of post-mediation, mediator evaluations refer to the assessment
or feedback provided by the parties and other stakeholders regarding the performance and effectiveness of
the mediator after the conclusion of the mediation process. These evaluations play a valuable role in
gauging the mediator's skills, professionalism, and the overall success of the mediation. Communication
skills. Effectiveness. Neutrality. Negotiation facilitation. Emotional management.

• Who drafts the Contract/Agreement? While the mediator does not draft the agreement, they may
play a supportive role by providing guidance on the clarity of language, ensuring that the agreement
reflects the parties' intentions, and helping to address any potential ambiguities. However, the mediator
remains neutral and does not advocate for any particular outcome. The drafted agreement is typically
reviewed by both parties and their legal representatives. It is common for the parties to make revisions or
clarifications during this review process to ensure that the final document accurately captures the agreed-
upon terms.

• When do you sign the Contract / Agreement? Once the parties are satisfied with the draft and any
necessary revisions have been made, the final agreement is prepared for signatures. All parties involved,
including their legal representatives if applicable, sign the agreement, indicating their commitment to
abide by its terms.

• If everyone has signed the Agreement, is it done yet? - After the agreement is signed, the parties
are typically responsible for implementing the terms outlined in the agreement. This may involve taking
specific actions, fulfilling obligations, or meeting deadlines as specified in the document. The mediator
may conduct follow-up sessions or communications to check on the progress of the parties in
implementing the agreement. This is an opportunity to address any issues or concerns that may arise
during the implementation phase.
• Exchange of pertinent information
• Did lawyers provide you independent legal advice

• Can the clauses of the Agreement be revisited – either by express or implied terms? The ability
to revisit clauses in a post-mediation agreement depends on the language used in the agreement and the
intentions of the parties involved. If the agreement explicitly includes provisions allowing the parties to
revisit or modify specific clauses, those terms will govern. Express terms for modification could outline
the circumstances under which changes are permissible, the process for initiating revisions, and any
requirements for mutual consent. In some cases, agreements may be silent on the issue of revisiting
clauses but may include implied terms or principles that allow for modifications under certain
circumstances. Implied terms could be based on the parties' ongoing relationship, changes in
circumstances, or a shared understanding that some flexibility is needed.

• What if we disagree about the wording of the Agreement? Generally, post-mediation agreements
are based on the principle of mutual agreement. If the parties both agree to revisit certain clauses and
make changes, they are free to do so. This may involve additional negotiations, discussions, or possibly
another mediation session.
THE CLIENTS ROLE
● Originator of the conflict.
● Source of information and documentation.
● Ultimate decision maker.
● When lawyers are not present, they adopt all the roles of a lawyer.
● Ultimately, the party who has to walk away and to abide by the agreement they sign.

LAWYERS AND MEDIATION

• Mediation offers enormous potential for lawyers to recognize and honor human dignity

• Mediation affords lawyers the opportunity to step back from our roles as lawyers and to view
the dispute, the parties, the legal matter as something more than what we are supposed to be
perceiving it as.

• Mediation allows lawyers to work on traits we do not normally use.- creative problem solving-
focusing on interests rather than positions, and finding creative solutions that meet the underlying needs
of all parties involved. Communication in mediation is not only about presenting legal arguments but also
about conveying information in a way that fosters understanding and cooperation. Lawyers in mediation
learn to navigate emotions, demonstrate empathy, and understand the emotional underpinnings of their
clients' and the opposing parties' positions. mediation provides an opportunity for lawyers to focus on
collaboration and relationship building. client-centered approach where lawyers consider not only their
clients' legal interests but also their broader concerns and goals. This client-centered focus promotes a
more holistic approach to dispute resolution. Lawyers work on facilitating their clients' involvement,
decision-making, and ownership of the outcomes.

MEDIATION IS THE CLIENTS NOT LAWYERS PROCESS

• Valuing the client’s narrative over the legal aspect of it: For lawyers, this translates into a
relinquishment of their central role in presenting a client's case.

• Dignity is attached to stories simply because they come from people who lived those stories .

• Lawyers as the gate-keepers to mediation- The lawyer’s are still the gate-keepers to the process for
two reasons:- most good mediators have a legal background and have gone to law school - Most clients
are going to mediation because their lawyers advised them to. If mediation involved no lawyers, it would
be filled with people who do not have the training to identify and resolve legal issues and that would be
very unstructured and confusing. Lawyer’s need to be in mediation as gate keepers to guide and advise
clients on how the process goes what to focus on and how to go about the process.

• How do you get a client to mediate? The lawyer has to educate their client about the legal issues that
are involved in the process. Most clients do not know about the law and about the mediation process.
Encouraging a client to mediate involves effective communication, education about the benefits of
mediation, and addressing any concerns or misconceptions they may have.

• Deciding on the mediator.

• Preparing the format of mediation
• Preparing for mediation
LAWYERS FULFILL A NUMBER OF ROLES IN MEDIATION

• Advocate and represent their client’s positions and interests. - The lawyer also has to educate the
mediator. The lawyer has to educate the mediator about the clients position and even about things like
language that are not favourable or are unclear to the client and other language barriers.
• Counsel- Lawyers need to speak to their clients about compromising and understanding that you can’t
get everything you want and would have to meet in the middle with the other party. The lawyer has to
get their client to the point where they are willing to and understand the importance of
compromising. The lawyer has to educate their client about the legal issues that are involved in the
process. Most clients do not know about the law and about the mediation process.

• Negotiate- lawyers consult with their clients to understand their priorities, preferences, and any
concerns they may have. This helps lawyers align their negotiation strategies with the client's objectives.
Listening actively to the other party's statements and concerns is crucial. Lawyers gather information,
identify potential areas of agreement, and demonstrate a willingness to understand the opposing party's
perspective.

• Evaluate- fairness, challenge. Etc.

EDUCATING OTHERS AND DELIBERATIONS

• Brief your client about what is occurring.
-Brief the mediator about where your client is at in settlement discussions.
-Exchange Information
• Privately discuss with client the gravity of information received.

• process of careful calculation and reasoned dialogue

• A process that occurs throughout mediation.
• How do you achieve that?
• Understand their client’s perspective
• Know their client’s goals
• Understand mediation process
• Understand relevant case law

TRUST
• Your client MUST trust you during the mediation.
• Trust must be acquired.
• Without trust, no ethical settlement can be reached.
• Trust must exist between the opposing side and the mediator as well.
Trust is very important in a mediation process because trust is essential in order to reach an agreeable
resolution. If the parties do not trust each other, then it becomes ten times harder to reach a resolution.
Trust has to be built throughout the mediation process because most clients in mediation do not trust
each other and trust has to be built by talking it out. Trust has to be built between the clients, the
mediators, and the lawyers.

DELIBERATION
• process of careful calculation and reasoned dialogue
• A process that occurs throughout mediation.
Deliberation is a careful calculated and reasoned dialogue that leads towards compromise. Deliberation is
about reason. There has to be a deliberation about everything brought up in mediation and there has to be
good reason for a client’s request in order for them to achieve it. Thinking beyond the legal involves the
non-legal issues and the lived reality of the clients. For example, having to pay 1000 a month in child
support when you only make 50.000 a year.

• How do you achieve that? Understand their client’s perspective, know their client’s goals, understand
mediation process, understand relevant case law.

MEDIATOR’S ROLE IN MEDIATION

• The mediator’s role is that of a facilitator- The mediator’s role is that of a facilitator. They are there
to assist the clients in reaching a mutually beneficial resolution that meets their mutual needs, concerns.

• The mediator has a responsibility to promote the participants’ awareness of the interests of
others affected by the dispute and by the proposed agreement and to assist the participants to
consider the separate and individual needs of such other persons-
The mediator has to encourage participants to think of the individual needs and interests of the other
party. The mediator does not need to ensure that the results are just, fair, or equitable.

• What words are missing?

• Justice
• Fairness
• Equity

MEDIATION MUST AVOID CONFLICT OF INTEREST.

• Conflict of interest: situation in which a person or organization is involved in multiple interests,
financial or otherwise, and serving one interest could involve working against another.

• Mediators must avoid any activity that could create a conflict of interest.

• cautious about mediating disputes involving close friends, relatives, colleagues/supervisors, or

students

The mediator cannot be involved in a case where they have a conflict of interest. The mediator cannot be
involved in a relationship with a party in a mediation they are involved in. the mediator’s interests should
be to help the parties come to a just and fair outcome. Being in a relationship with one of the parties is a
conflict of interest. A conflict of interest occurs when a person who should be representing multiple
interests has a bias and is now more invested in representing only one interest. The mediator should also
avoid cases wherein there is the appearance of a conflict of interest.

ROLE OF CONFIDENTIALITY
• A mediator shall not voluntarily disclose to anyone who is not a party to the mediation any
information obtained through the mediation process.

• However, they may be required to disclose information if ordered to do so.- Confidentiality

cannot be disclosed without a judge ordering you to or unless there is ongoing violence by the client. If
there is ongoing violence, the lawyer would have to contact the law society for directions on what to do.
• How is that different from lawyers?

IMPARTIAL
• A mediator has a duty to act with impartiality in relation to the participants. Impartiality means
freedom from favoritism or bias either in word or in action, or the appearance of such favoritism
or bias
• What does impartiality mean?
• What does favortism mean?
• What does bias mean?
• How does this work practically? Caucus, procedural fairness, impartial reframing- If emotions
run high or communication becomes challenging, mediators may reframe statements or issues in an
impartial manner. This helps to depersonalize the discussion and maintain a focus on the underlying
interests rather than positional arguments. Power imbalance. Active listening. Equality of voice.

NEUTRALITY

• Neutrality is about achieving fairness - both in outcome and process.

The mediator must therefore oversee the mediation process whilst at the same time allowing the
parties to negotiate without unnecessary hindrance.

• Neutrality as Impartiality
• Neutrality as Even-Handedness- Mediators strive to be neutral and even-handed in their interactions
with all parties. They avoid taking sides or showing favoritism, treating each party with respect and
ensuring that no party receives preferential treatment.

• Neutrality as the Distinction between Process and Content or Outcome

MEDIATOR’S FLEXIBILITY

• They must be flexible into their own assumptions, beliefs, ideologies.

• The Mediator is the ambassador of the process and therefore must meet all parties on their
terms. If the terms are not agreeable to the mediator, they cannot mediate.
• They should think outside the box.

MEDIATORS ULITIMATE GOAL AND ROLE

• A mediator must endeavor to encourage that the participants reach agreement freely,
voluntarily, without undue influence, and on the basis of informed consent.
• All aspects of that agreement – freely, voluntarily, without influence, and with informed
consent – are important.

W4: EMOTIONS AND JUSTICE

EMOTIONS ARE INHERENT TO CONFLICT:

- ANGER, RAGE, SADNESS- These are words synonymous with conflict.
• However, litigation and the traditional legal system does Not care about emotions.

• Complicated
• Subjective experience
• The normal/objective reality- While we can have emotional responses to facts and the law, facts and
the law are not emotional themselves.
• Our emotional response created by our brains

MEDIATION AND EMOTIONS

• Mediation cares very much about the emotions of the parties.
• Mediation is created and driven by the parties themselves.
• Parties who mediate the same issue can come up with whatever test or approach they want.
• A mediator helps facilitate this – they involve the parties’ emotions.

There are two downfalls of mediation – emotion and justice. Mediation can help a vast majority of people
resolve conflict, however, there are times when mediation is not successful, or parties themselves may
craft or agree a solution that does not live up to their standards of a just outcome. Understanding emotions
and concepts of justice can be beneficial by helping us understand how to control mediation.

EMOTIONS AS A BARRIER
• Parties are emotional. They do not care about legal tests of the law or even some semblance of
finding the objective truth.

• Emotions & Mediation

• 1) They will be illogical- Emotional people are illogical. When people are emotionally charged, they
are unable to act rationally, and this can elongate the mediation process or even create more conflict
between the parties.

• 2) They will privilege the subjective over the objective- When people are emotionally charged,
they will place their subjective reality over the objective reality. They will be unable to identify actions as
simply what they are. Their emotions will influence their perceptions of actions, and this can affect the
dispute resolution process. When people are emotionally charged, they can either refuse resolution
agreements that are in their best interests and fulfill their wishes or they can accept resolution agreements
that are not in their best interests and do not fulfill their wishes.

• 3) Their judgement concerning the issues and what is at issue will be clouded with feelings.
Emotional responses can cloud perceptions of reality and affect judgement. Emotion poses a big problem
in mediation, because mediation is a process grounded in self-determination, and parties will be unable to
reach resolutions and fair agreements if their decision making is clouded by emotions. Emotional
response (such as anger) in divorce mediations can lead to parties making decisions that are not in the
child’s best interests, and this can pose dangerous consequences for the children involved.

THE INSIGHT APPROACH

In insight mediation, conflict is understood as emerging from a party’s interpretation that something they
value highly is threatened by the actions of another person or group. These interpretations in turn produce
a defense response that the other party interprets as an attack. towards their person. It is this pattern of
behaviour that gives rise to and sustains conflict. Insight mediators help parties identify and understand
this pattern of behaviour so as to help them move to a new pattern of interaction that explores the
underlying problem.
• The insight approach consider that a problem has two levels to each problem
• The Tangible Level to Problems- this is the way the problem appears to the disputants. This is the
surface level of the conflict. For example, I don’t want my ex to have custody of the child because I don’t
think he is a good parent.
• The Intangible Level to Problems- (deeper level): this holds the values, feelings, and threats driving
the conflict. Parties may be unaware or unwilling to disclose these hidden reasons to problems.
Understanding this level of conflict helps the mediator understand why the party is the way they are as
well as the true reason for the conflict. The inability to identify these hidden values and feelings can ruin
the mediation process as they are attached to strong beliefs about patterns of cooperation and judgement
about justice. The hidden factors that contribute to conflict often stay hidden because parties fear that
their values and feelings will not be understood or respected.

INTANGIBLE PROBLEMS AND MEDIATION

• These deeper, intangible levels to problems are what can ruin mediations. Because these
intangible levels to the problems are the reason we feel the way we do.
• These problems rarely come to the surface.
• These emotions create a history behind an individual that influence and dictate the way they act
in the future.
• Relationship and environment are key.

HOW CAN INSIGHT MEDIATION HELP?

• Understand that resolving conflicts can feel as a threat or attack on the other party.
• Break dysfunctional patterns of communication and behavior.
• Learn the emotions of the opposing side.
• Provide insight into the lived reality of the other party.
• Mediation can help parties overcome these emotions.

UNRESOLVED QUESTIONS
• What about the emotions of the mediator? Not addressed.
Mediators are meant to be unbiased and neutral parties, but all human beings have inherent bias. We all
have our beliefs and values. A mediator’s bias and emotions can influence the outcome of the mediation
process. It is important for mediators to be aware of their personal biases and beliefs and be able to turn
away cases wherein their emotions can influence their actions .

• If mediators can become emotional, will this make them biased? Difficult question to answer.
The ability of a mediator to become emotional does not necessarily make them biased, as long as they are
able to manage their emotions professionally and maintain impartiality in the mediation process.
Mediators, like any other individuals, may experience emotional reactions to the discussions and
dynamics during a mediation session. However, the key is how they handle and manage those emotions.
Mediators should be aware of their own emotional responses and be capable of regulating their emotions.
This involves recognizing when emotions are arising and taking steps to manage them so that they do not
interfere with the mediator's ability to remain impartial. While emotions are a natural part of the human
experience, mediators must be vigilant in preventing their personal emotions or biases from influencing
the mediation process. This includes not favoring one party over another based on personal feelings.
Mediators are trained to maintain professional boundaries. Even if they empathize with the parties or feel
emotional about the issues being discussed, they are expected to refrain from expressing personal
opinions or taking sides. In some cases, if a mediator feels that their emotions may compromise their
ability to remain impartial, they may consider referring the case to another qualified mediator. This is a
responsible decision that prioritizes the integrity of the mediation process.

JUSTICE
• If the outcomes are acceptable to the parties, then the process has succeeded... if the mediation
process succeeds in these ways, has justice been promoted or secured? Stated differently, is it
sufficient, on considerations of justice, for the outcome to be acceptable to the parties or must
those settlement terms match the requirements of some external standard of evaluation?

The concept of justice is constitutionally ambiguous. Justice is achieved not only through a fair outcome,
but through a fair and acceptable process. It is possible for a resolution to be made in mediation without
that resolution or the process being just.
• Justice from Above- Justice from above refers to decisions that are imposed upon a person. They are
decided by one individual or a group of individuals, such as a judge.

• Justice from Below- Justice from below refers to the decisions that we as a community agree to and
decide on. A consensus was reached about a particular issue.

Justice from Below – Is it Justice?

• The outcome of the process being decided by the parties can bring into question whether justice
has actually occurred. This is not always the case though, as parties can agree on something, but it
might not be the right thing.
• For example, simply because two people agree that a particular lake is frozen and will support
the weight of an all-terrain vehicle does not make it true that the lake is sufficiently frozen to
support it.
• Another example – my children may all agree that the Emoji Movie is a “good” movie, but that
is not true.
• Justice and the Odyssey – why are we always talking about the courts? Mediation uses the justice
from below model. This model enables the parties to participate in the decision-making process and to
experience empowerment. As well, the justice from above model can be viewed as unjust because the
parties might not agree with it, or it might not favour a particular party.

6 Issues Pertaining to Mediation & Justice

• The article posits that there are six aspects or outcomes of mediation that could draw the entire
process into question.
• These are extreme examples. However, they could potentially be present in every mediation.

1. At least one party makes non-voluntary decisions

• There cannot be coercion in mediation.
• Example: Domestic Violence
• Solution: Process must be voluntary.
It is important that all parties involved in mediation are involved in the process voluntarily and that
no one is coerced into making a decision. To address this issue, there are measures that can be taken
by a party their lawyer if they feel they or their client was coerced into accepting an agreement so as
to escape liability.
 2. One party alienates a basic interest that most human beings believe should not be subject
to irretrievable waiver
• We must not agree to waive the capacity to shape a meaningful human existence.
• Example: Waiver of Child Support Despite Extreme Poverty.
• Solution: Inalienability of interests.
It is important that parties do not accept agreements that are immoral or against their best
interests. To address this, contracts can be made unenforceable if found to be immoral.

3. Parties agree to settlement terms that violate that jurisdiction’s law

• Is it fair, then, to let people agree to arrangements known by them to be illegal?
• Example: A Settlement that is “Off the Books”
• Solution: Publicity of outcomes.
It is important that parties do not make agreements that violate the law and face of the justice
system. To address this, mediators can inform parties that terms of their agreement are in
violation of the law and can therefore not be incorporated into a binding agreement. Mediator
ethical codes prevent the mediator from drafting an agreement that contains unlawful terms.

4. Agreement terms violate or ignore a significant dimension of a person’s human dignity

• Can an acceptable outcome still be unfair to one party?
• Example: Settlement Reached, but no genuine remorse from the opposing side.
• Solution: Dignity and respect.
It is important for parties to reach settlements that do not affect their sense of respect and dignity
as well as for settlements to consider damages to one’s sense of dignity and respect. This is
addressed through mediator training programs that reflect a commitment towards exploring the
underlying issues to conflict between parties.

5. Agreement terms are accepted with “full knowledge” of the possible alternatives
• Can you truly decide if you do not know what the law says or what the truth of the
situation is?
• Example: Settlement without Financial Disclosure
• Solution: Informed decision-making.
It is important for all parties to be fully informed of the facts, their rights, and their
alternatives before reaching an agreement. This is addressed through the increased
presence of lawyers who can provide parties with an expansive view of their possibility
and rights.

6. Agreement terms are inconsistent with fundamental values of the concept of a person
that is embraced by the larger community
• To put it sharply, how are conflicts emanating from cultural differences resolved fairly
in mediation?
• Example: A Transphobic Parent Harming their child.
• Solution: Toleration of conflicting fundamental values.
It is important for the terms of an agreement to be consistent with the fundamental values and beliefs of
all parties affected by the agreement. This is addressed by providing all persons affected by the outcome
with the right to be present and to participate in the discussion process. This is also addressed by
providing mediators with appropriate expertise and sensitivity to such issues through training.

W5: DIVERSITY AND MEDIATION AND RESOLVING DISPUTES.

WHAT IS DIVERSITY?
• Diversity in the context of how we are discussing it today is concerning WHO we are as
individuals.
• Diversity is often thought of as a number of different identifiers that make up how we identify
ourselves.
• However, when we are discussing diversity in this context, we are generally talking about the
immutable difference’s humans have.
Diversity basically refers to differences within a collective. Diversity in the sense we are
concerned with addresses who we are as individuals (culture, nationality, religion, etc.).

DIVERSITY AND MEDIATION

• Communication & mediation.
• Diversity is asking people to look beyond the person's identity and to probe and question how
the experiences shape and alter how they interact with the world. This is integral to mediation.
• Diversity and the law

CULTURE, RELIGION AND DIVORCE

• divorce is one of the most traumatic occurrences that we face in our lives. However, the
cultural and religious responses to divorce are irrelevant in the formal court process.
• The frame of reference of how we view divorce and separation will be infiltrated by religion
and culture
• Even the fact that you can obtain a divorce can be novel for some people. Philippines, for
example, does not have divorce.
• Readings provide generalizations, but remember that these are generalizations, not absolute
truths.
Cultural and religious responses to divorce are not considered in the formal court process, and
this causes many divorcing couples to feel unheard and mistreated. Each party’s cultural and religious
beliefs directly influence their perspectives on fairness and willingness to mediate and resolve conflict.

EFFECTS OF JEWISH CULTURE AND RELIGION

• For Orthodox Jewish couples, the husband must agree with the granting of the religious divorce
by the rabbinic court in order for the wife to be granted the get (bill of divorce).
• Men are automatically granted. Women must be granted the get by their husband.
• Potential power imbalance exists.
• Sabbath impacting children’s access arrangements. Day of rest & holidays. - Jewish people also
view Friday through Saturday as a time of unity within the family.
• What happens if one spouse converted to Judaism and is refusing to contain to practice Judaism
after separation?
 A man whose wife refuses to accept the ‘get’ can obtain rabbinical permission to divorce, but a
woman whose husband refuses to give her a ‘get’ cannot divorce. mediator must understand the
significance of their beliefs and the power imbalances that are at play. Mediators have to be aware of
various religious beliefs and traditions in order to effectively aid in the dispute resolution process.

COMPARE AND CONTRAST WITH ISLAMIC CULTURE

• The Mahr-
In Islamic culture, the term "Mahr" refers to the dowry or financial gift that is given by the groom to the
bride as a mandatory part of the marriage contract. The concept of Mahr is deeply rooted in Islamic
traditions and holds cultural, religious, and legal significance. In the context of mediation, the Mahr can
become a relevant and sensitive issue, and a mediator may need to address it while facilitating discussions
between parties. A mediator working within an Islamic cultural context should be culturally sensitive and
respectful of the significance attached to the Mahr. Understanding the cultural and religious aspects of the
Mahr is crucial for creating an environment that respects the values and beliefs of the parties involved.
The Mahr is not only a cultural and religious tradition but is also recognized within the legal framework
of Islamic family law. Mediators should be aware of the legal implications and requirements related to the
Mahr in the jurisdiction where the mediation is taking place. The Mahr can have financial implications,
and discussions related to financial agreements should be handled with care. The goal is to find a
resolution that aligns with both Islamic principles and the legal requirements of the jurisdiction.

• Ramadan-
Ramadan is a significant month in Islamic culture, observed by Muslims worldwide as a period of fasting,
prayer, reflection, and community. During Ramadan, Muslims fast from dawn to sunset, refraining from
food, drink, and other physical needs. The month holds great religious and spiritual importance, and it
influences various aspects of daily life, including work, social interactions, and family dynamics. In the
context of mediation, the observance of Ramadan may have implications that a mediator should be aware
of to ensure cultural sensitivity and effective communication. Mediators should be mindful of the fasting
schedule when scheduling mediation sessions, aiming for times that are considerate of participants who
may be observing the fast. Fasting can affect individuals' energy levels and concentration. Mediators
should be understanding of the potential impact on participants' focus and attention during mediation
sessions. It may be beneficial to schedule sessions at times when participants are likely to be more alert.
Given the variations in energy levels throughout the day during Ramadan, mediators may consider
offering more flexible timing for sessions. This flexibility allows participants to choose times that align
with their comfort and ability to fully engage in the mediation process. Mediators should respect
participants' commitment to religious observances and be considerate of the need for breaks during
mediation sessions. Mediators should discuss with participants their preferences regarding the timing of
sessions, breaks, and any specific considerations related to fasting. This ensures that the mediation
process accommodates participants' needs during Ramadan. After Ramadan concludes with the
celebration of Eid al-Fitr, there may be considerations related to post-Ramadan events and celebrations.
Mediators should be mindful of potential scheduling conflicts and cultural observances during this period.

• Conversion to faith for spouse.

The issue of religious conversion for a spouse can be a complex and sensitive matter that may impact a
relationship. In the context of mediation, if the parties involved are seeking assistance in navigating this
issue, the mediator should approach the matter with cultural sensitivity, respect for individual beliefs, and
a commitment to facilitating open communication. Mediators should emphasize the importance of
voluntariness and autonomy in matters of faith. It is crucial that any decisions regarding religious
conversion are made willingly and without coercion. Mediators should create an environment that
encourages open dialogue about individual beliefs and choices. The mediator can facilitate a discussion to
help each party articulate their interests, concerns, and reasons for considering or opposing religious
conversion. This process can contribute to a better understanding of the motivations and values that
underlie the decision-making process. Mediators may guide the parties in exploring common ground and
shared values, regardless of specific religious beliefs. Identifying areas of agreement and mutual
understanding can foster a sense of connection and facilitate more constructive discussions. In cases
where religious differences are a source of tension, the mediator can assist the parties in developing
strategies for managing and respecting those differences within the relationship. This may involve
establishing boundaries and finding ways to honor each other's beliefs. Religious beliefs are often deeply
tied to cultural identity. Mediators should be culturally sensitive and consider the broader cultural context
in which the parties are making decisions about faith. Mediators should be aware of the potential impact
of religious decisions on family dynamics, particularly if there are children involved. Discussing how the
decisions may affect family life, traditions, and rituals is important for holistic problem-solving.
Depending on the jurisdiction, there may be legal considerations related to religious conversion,
especially if it involves changes in legal status or implications for marriage and family law. Mediators
should be aware of any relevant legal aspects. If the parties reach an agreement regarding religious
conversion, the mediator can assist in developing a plan for implementation. This plan may include
ongoing communication, support systems, and ways to address any challenges that may arise in the
future.

CHRISTIANITY AND DIVORCE

• Divorce is a sin by its nature. Feelings of guilt, shame, dissociation from their religious
community.
• Can guilt be leverage by a party to their advantage for a favorable settlement?
• Example – if one spouse commits adultery and they feel immense shame, they may provide a
more favorable settlement. Is this fair?

In some religions, such as Christianity, divorce is a sin. As such, Christian divorcing parties may
experience guilt and shame during the process. Mediators must be sensitive to religious influences and the
resulting dynamics between the parties. Mediators have to ensure that guilt is not leveraged against one
party during the process. All of this shows the various factors that can influence the process and outcome
of mediation. Mediators have to be mindful of their language and actions.

POWER IMBALANCES AND DIVORCE

• Empowering traditionally marginalize partners to assert themselves may be difficult.
• What if an individual has been the individual who has historically made decisions regarding the
parenting?
Equality of participation, procedural justice- taking action for their outcome, caucus,
effective communication skills, reframe issues in a non hostile manner.

CONCEPTS OF TIME AND BODY LANGUAGE IN MEDIATION

A mediator needs to be consciously aware of the parties’ desire for detail and closure in the
settlement agreement. Reaching closure can be very difficult and frustrating if the parties have different
perceptions of time.

• Monochronic time- Monochronic people think linearly and sequentially and need to accomplish one
thing at a time. They view things in terms of a timeline. They narrate events.

• Polychronic time- think non-linearly and do a number of things simultaneously. They explain only the
most important facts and don’t follow a timeline.
• The ways in which we communicate non-verbally can be influenced by culture.
A mediator may have parties who think in different modes and must be able to help them
communicate clearly. Research shows that African and Southern European cultures are polychronic while
American and Canadian cultures are monochronic.

• How can a mediator keep track of all these differences?

Creating visual cues or writing on a blackboard can help monochronic thinkers expand their
focus. Breaking into caucus can also help reduce the stress level polychronic thinkers experience due to
the time-consuming story telling nature of monochronic thinkers.

INTERNATIONAL MEDIATION
• International and ethnic conflicts have intangible, hard to define and components that make it
difficult to resolve: culture and identity.

• Collective identity versus individualism and reliance on oneself.

Collective identity involves valuing the collective as being more important than the individual
person. In this model, it is believed that there is strength in the collective and that the coming together
of individuals makes the collective better and stronger. Canada uses this model.
Individual identity involves valuing the sole individual. In this model, the individual relies on
themselves and is responsible for themselves. The individual’s ability to better protect themselves is
valued. A person from an individualistic culture may not be motivated by collaboration and protecting
the collective.

• International mediation – challenges:

• TIME, LANGUAGE, BODY SIGNS, STYLE, SPACE, SYMBOLS, SOCIAL AND
COLLECTIVE RESPONSIBILITY AND TRADITION OF SOCIAL SYSTEM.
When parties is mediation are from countries that practice different styles, a cultural conflict arises and
this can affect the success of the mediation. The problem with international mediation is the difference
in culture and the ways it can affect correspondence.

GENDER POWER AND MEDIATION.

• The existence of such power disparity hinders women’s capacity to negotiate effectively in
mediation and may cause inequitable outcomes to them in consequence.

• Power is central to how we understand and interact with our legal rights.

• Power is the “control of or access to emotional, economic and physical resources desired by the
other party”.

• Power as a cycle always staying in the hands of the dominant class. -

There is a presumption that the use of power is always negative, but such is not the case.
Controlling access to emotional resources can be used in a positive manner by being nice to others on a
daily basis. Possession of power is not inherently negative. Possession of power becomes negative when
social discourses control the power dynamics in society. This is when power remains within a particular
social network (such as men) and can be possessed by only that group. The dominant group in a society
then tries to normalize some sort of power and knowledge so that they can increase the value of their
power and establish themselves as having power. This then leads to the marginalization of the non-
dominant group.

ACCUMULATION AND ASSERTION OF POWER

• Power is relative. - Power is not generic. It depends on the relationship between the parties and the
reason why we’re talking about it. Power is dependent on the parties and the discussion between them.

• Power is not defined in a vacuum – context is key.-

• Asserting power: Three avenues of exerting power
• persuasion (normative approach)- It involves normalizing something through the exchange of ideas.
This involves convincing to do something you want.
• reward (utilitarian approach) It involves rewarding someone for performing some action you want.
• punishment (coercive approach) This involves imposing some sort of punishment on those who
refuse to do your will.

WOMEN’S HISTORICAL INABILITY TO ACCESS POWER.

• Historically lower income. Than male counterparts.
• Historically relegated to certain occupations. Nurturing/ non-administrative.
• As a result, women are typically from lower socio-economic backgrounds.
• Traditional sex role ideology
• Lower reward expectation
• Lower self-esteem & accompanying mental health problems.

• Intersectionality- Intersectionality refers to the interconnected nature of social categorizations such as

race, class, gender, and other aspects of identity. When examining the impact of intersectionality on
women's historical inability to access power, it's crucial to consider the overlapping and compounding
effects of various forms of discrimination and disadvantage.

Other factors such as lower social stats, lower reward expectation, and lower self-esteem can also
make women less powerful negotiators. Women are socialized to be softer and more cooperative, and as
such do not learn the skills and develop negotiation skills.

4 THEORIES ON WHY GENDER IMPACTS NEGOTIATION

• gender-role socialization theory-
Gender role social theory explores how societal expectations and norms regarding gender roles influence
individual behavior, attitudes, and opportunities. In the context of negotiation, gender role social theory
can have a significant impact on how individuals, particularly men and women, approach and experience
the negotiation process. Gender roles often come with societal expectations and stereotypes regarding
how men and women should behave. In negotiation, these expectations can influence perceptions of
competence, assertiveness, and collaborative tendencies. Stereotypes may suggest that men are expected
to be more assertive, while women are expected to be more nurturing or accommodating. gender norms
may encourage men to express assertiveness and even aggression in negotiation, as these traits are
sometimes associated with male leadership. Women, on the other hand, may face backlash for displaying
similar assertiveness, being labeled as too aggressive or unlikeable. This dynamic can affect negotiation
strategies and outcomes. can shape communication styles. Men may be socialized to be more direct and
competitive, while women may be socialized to use more indirect or collaborative communication. These
differences in communication styles can impact how negotiation messages are conveyed and interpreted.
Gender norms can influence attitudes toward risk-taking. Some studies suggest that men may be more
inclined to take risks in negotiations, whereas women may be more risk averse. This can impact the
willingness to make bold moves or concessions during the negotiation process. negotiation style
preferences based on gender role expectations. Men may be more inclined toward competitive or
distributive negotiation styles, emphasizing individual goals. Women may lean toward integrative or
collaborative styles, seeking mutually beneficial solutions. can shape perceptions of competence in
negotiation. Research has shown that women may need to demonstrate higher levels of competence to be
perceived as equally competent as men. Gender biases may affect how negotiators assess the skills and
capabilities of their counterparts.

• situational power theory-

same points as those underlined above. Plus. Information asymmetry, a component of situational power,
may be influenced by gender dynamics. Research has shown that women may receive less access to
information or credit for their contributions, potentially diminishing their power in negotiation situations.
Best Alternative to a Negotiated Agreement (BATNA) is a critical element of situational power. Women
may face challenges in developing and leveraging strong BATNAs due to systemic barriers in education,
employment, and networking opportunities. Women, particularly those from marginalized groups, may
have lower institutional power within certain industries or organizations. This can affect their overall
negotiating power, as institutional power often contributes to one's ability to control resources and
influence decisions. Perceptions of legitimacy and authority may be influenced by gender. Women may
face biases that question their legitimacy in certain roles or positions of authority. This can impact how
their negotiating power is recognized and respected.

• Gender-plus-power theory (a combination of 1 & 2)-

The concept of "gender-plus-power" theory refers to an understanding that gender dynamics intersect with
other power structures, such as race, class, ethnicity, and other identity factors, creating unique and
complex experiences for individuals. In the context of negotiation, gender-plus-power theory recognizes
that gender interacts with various forms of power, privilege, and disadvantage, influencing how
negotiations unfold. Individuals facing multiple forms of disadvantage may experience compounding
inequalities in negotiations. For example, women of color may face distinct challenges that result from
the intersection of gender and race, influencing how power is perceived and negotiated in various settings.
Power structures related to gender-plus-power dynamics impact access to opportunities. Negotiators with
intersecting marginalized identities may face barriers in accessing educational and career opportunities,
affecting their overall negotiating power. Gender-plus-power dynamics influence representation and
visibility in negotiation contexts. Individuals from marginalized groups may be underrepresented,
impacting their ability to assert their interests and perspectives. Stereotypes associated with gender, race,
or other identity factors may shape how negotiators are perceived, impacting the attribution of
competence, credibility, and authority. Cultural expectations related to gender and other identity factors
influence negotiation dynamics. Negotiators may need to navigate cultural norms that prescribe specific
roles and behaviors, affecting their ability to assert themselves in negotiations. Recognizing the impact of
gender-plus-power dynamics in negotiation is crucial for promoting equity and inclusivity. Organizations
and negotiators can work toward dismantling systemic barriers, addressing biases, and creating
environments that empower individuals with intersecting marginalized identities to negotiate on more
equitable terms.

• the expectation states theory

Expectation States Theory (EST) is a sociological theory that explores how social expectations and status
characteristics influence individual behavior and social interactions. In the context of negotiation, EST
helps us understand how preconceived expectations based on gender may impact the dynamics and
outcomes of negotiations. According to EST, individuals bring various status characteristics into social
interactions, and these characteristics influence how others perceive and evaluate their competence.
Gender is one such status characteristic, and societal stereotypes about gender roles may influence
expectations about negotiation competence, leading to biased expectations about the negotiation abilities
of men and women. EST emphasizes the importance of role congruity, which refers to the alignment
between social expectations and the perceived appropriateness of individuals in specific roles. Gender
role expectations may influence how negotiators are perceived in different roles, affecting their influence
and effectiveness. In negotiations, if a woman negotiator achieves success, it may be attributed to factors
other than competence, while failures may be more likely to be attributed to incompetence. Gendered
expectations may influence the roles assigned to negotiators. Women may be more likely to be assigned
supportive or collaborative roles, while men may be expected to take on more assertive or leadership
roles, impacting their influence in negotiations.

POWER MEDIATION AND GENDER

• Formal authority in the mediation – who has it?

• Procedural power – mediators should have procedural power, but can procedure be wielded as
a sword?
Procedural power in mediation refers to the mediator's authority to structure and manage the process,
including setting the agenda, managing communication, and making decisions about the procedures to be
followed. While procedural power is essential for effective mediation, it should be exercised judiciously
and in a manner that promotes fairness, inclusivity, and the facilitation of resolution. However, if wielded
improperly, procedural power can indeed be perceived as a sword rather than a tool for constructive
facilitation.- neutrality, avoiding biases/favouritism, open communication, power dynamics balanced,
transparent decision making, cultural sensitivity, empowerment.

• Definitional power
• Legal prerogative
• Resources
• Reward and sanction
• Nuisance power – use the law to disrupt.
• Power of Association
• Moral power
• Perception of power- granted to males in patriarchal societies.
• Habitual power – the status quo. - dominant societal standards.
• Personal characteristics. - assertiveness, authoritative.

Can Mediation Truly be Fair?

• Therefore, when social discourses create a gendered disparity between education, income, self-
esteem, or reward expectation, a mediator can not empower the marginalized party by providing
more income or education etc. Therefore, one may think how a mediator would ensure equitable
outcome for two unequal parties.-
• ... but maybe mediation cannot be equitable or fair.
Feminists see mediation as bad for women due to the history of power imbalances as well as power
imbalances that could be prevalent in the mediation. Mediators are not required to ensure that
agreements are just, and as such there is no protection for women who may be manipulated during the
process.
W6: LABOUR AND EMPLOYMENT LAW

Boucher v. Wal-Mart Canada Corp., 2014 ONCA 419 (CanLII)

FACTUAL BACKGROUND - Ms. Boucher is harassed by her Mr. Pinnock and Walmart
disciplines her.
JUDICIAL BACKGROUND - trial and this appealed to the Ontario Court of Appeal?
ISSUES - intentional infliction of nervous shock by Mr. Pinnock, punitive damages for Pinnock,
aggravated damages of Walmart, punitive damages for Walmart.

RULES
APPLICATION
CONCLUSION

Labour & Employment Law Generally

• Labour law and employment law are different areas oflaw. They apply to TWO very different
subjects.
• Labour & Employment law are rights and obligations associated with your job and the jobs of
others.
• Employment Law: Employment Contracts
• Labour Law: Collective Agreement

Employment Law – What is it?

• Employment law generally deals with individual employment contracts in which the employee
is not either a member of a union or bound by a collective bargaining agreement.

• These laws provide the bare minimum of what an employer must provide.

• The Canada Human Rights Act

• Employment Standards Act (ESA) - Ontario
• Continuity of employment
• Payment of Wages
• Employee Tips
• Records
• Hours of Work and Breaks
• Minimum Wage
• Public Holidays
• Vacation for Pay
• Benefits
• Leaves of Absence
• Termination and Severance of Employment

• Is everyone included? No. Certain occupations are excluded.

• So that means if you have a job at a movie theatre or a retail store like Footlocker, you are
governed by the Employment Standards Act. You are not unionized. You have a basic amount of
protection.
Labour Law – What is it?
• Labour law applies to work environments that are governed by the Ontario Labour Relations
Act. In such environments, the employee is subject to collective bargaining and is a member of a
union.
• Unions and collective agreements can opt out of the Employment Standards Act.
• If you have a job as part of a union, for example as a nurse or a contract instructor at Carleton,
you will be governed by the Ontario Labour Relations Act. Your union negotiates a contract with
your employer or several employers.

Labour Law & Collective Agreements

• Collective bargaining is a process of negotiation between employers and a group of employees
aimed at agreements to regulate salaries, conditions, benefits, and other similar aspects of a
employees job.
• They provide a cohesive set of rules that you (and all of your co-workers) are held to. Impacts
promotions, pay, vacation, etc.
• Union is advocating for better standards in return for a compromise. (ie, work 12 hour days,
work less than 40 hour weeks)

Practical Distinction between Labour & Employment Law Working Conditions

• In a unionized environment - two employees hired for the same position with the same
experience will be treated in an identical fashion. You are not bound by the basic protections
afforded under the Employee Standards Act.

• In a non-unionized environment - two employees hired for the same position with the same
experience COULD be treated differently, in terms of pay, salary, etc.

• Mandatory mediation in a non-unionized environment.

• Mandatory mediation does not exist in a unionized enviroment.

EMPLOYMENT AND LABOUR LAW –Commonalities in Mediation

• 1) We are dealing with someone’s livelihood.
• 2) Generally speaking the same people are at the table (but union representatives are present in
Labour Law)
• 3) We are talking about the rights of individuals in the workplace.

Labour Law & Dispute Resolution

• Unions have a unique legal position. A significant part of the employer-employee relationship.
• Mediation has always been present in labour law. It has always been a factor. It has been a
popular idea and subject matter since the 1940s. Mediation has been on the cutting edge of
labour law.
• However, that mediation is underutilized in the setting of labour relations.

Labour Law vs. Arbitration in Labour Law

• The predominate means of resolving disputes in labour dispute is grievance based arbitration.
Your union grieves actions that run counter to the collective agreement.
• Mediation, however, is cheaper, faster and resolves cases at an 86% success rate.
• However, mediation is not used as often in the labour context.
• The union representatives liked it.
• The employers liked it.
• The employees did not like.

Barriers to Mediation of Contract Based Grievances- LABOUR CONTEXT

• A Mediation is not always about what is in dispute, but the historical and practical relationship
between the union and the employer.

There were four interests that make it difficult to mediate labour grievances.
• The union has an interest as an organization.
• There is a group interest of all the employees, which may be difficult than that of the union
itself.
• There is generally speaking the employee interests concerning resolution of grievances of peers
whom they are in competition with, aka, you may be at odds with your peers.
• Resolution of individual employee claims may themselves make it difficult to mediate.

• In essence, it is a complicated process with many different players on the union side.

Unions have an organizational identity that needs to be protected.

Rights based advocacy organization
• The arbitration grievance process is a cornerstone of union worker’s rights, both today and in a
historical context.
• Historical legacy of fighting against violent repression of labour rights
• A history of resistance against employers.
• Modern organization that needs to be concerned to maintain membership as a union and to
succeed as an organization
• If a union loses enough members or engagement declines, they risk losing their status as a
union.
• This leads to multi-faceted decisions by the union. Unions are not necessarily always going to
be motivated by principle of what is the right thing to do for the individual member.

Symbolic Grievances & Issues that Will Not be Mediated

• Unions identity, status and place in society will mean there are matters that simply cannot be
mediated.

In addition, there are several scenarios where the union WILL not mediate:
• 1) Grievances involving factual issues
• 2) issues in which the importance of the arbitrator’s reasoning in theformal opinion transcend
the importance of the result to the parties that it establishes the law.
• 3) Parties are so entrenched in their beliefs, they will not compromise.

Employment Law & Discrimination

• Race-based discrimination with a smile- You are never explicitly fired for the reason the
employer actually has.
• That is because there is a tension between two forces inherent in employment law, which will
no doubt impact each other. -The Free Market Vs. Our Dedication to Equality. What is
considered more economically beneficial.
• Often times in mediation, race-based discrimination is the elephant in the room.

Employment Law, Discrimination & Mediation- BENEFITS

• The article touts several benefits to mediation for employment law & discrimination. Are these
actually benefits?

• Reduce administrative and litigation costs

• Shorten time frames for resolving disputes- not necessarily a good indicator of efficiency and
accuracy- lack of time, oversight and proper consideration.

• Avoiding win-lose outcomes- may not always be consistently applied.

• Resolving underlying racial issues.

• Enhancing Parties Communication to Discuss Racial Issues

• Confidentiality. - “privatize workplace justice”, which brings to light the highly controversial
feature of the mediation process, ‘confidentiality’. Its controversial nature is caused by concerns
about the perception that it conceals pertinent information or issues which help preserve the
reputation of the derelict firm/individual(s), whilst suppressing the voice of the inferior
innocent(s) (Bennett, 2013). This is considered challenging to maintain because, on one hand, it
may hinder the educational ability of firms to learn from the disputes and help enhance
workplace conduct, while on the other hand, the presentation of persistent/serious
misconduct/violations as interpersonal issues proves detrimental to the distressed individual and
the integrity and objectivity of the process (Kenny, 2014). However, the lack of public disclosure
allows the disputants to have more control over the process, their mutually decided outcome, and
its impact on their professional relations and environment, without having to factor in external
judgements and sentiments over desired results.

• Reduce Retaliation Court- through reconciliation. Depends on the attitude of the parties
(recognize other perspectives and seek a mutual agreement), the issue at hand and the efficiency
of the voluntary, neutral mediation process.

• Remedies- could have been more if gone to court.