If you are a party to litigation in Toronto, Ottawa or Windsor, you’re going to find that mediation will be required before a matter can proceed to trial. In other Ontario jurisdictions, mediation is available, and usually advisable, but it is not mandatory.

Either way, Ontario litigants are likely to be involved in mediation in some point during the process. A mediation is simply a settlement meeting presided over by a third party neutral who has no decision making power but who has been trained to assist parties to resolve their dispute.

In addition to my litigation practice, I have been working as a mediator for the last two years. As a counsel representing clients at mediations, I had developed my own habits, practices and tendencies. My exposure to the approaches taken by other lawyers was limited to my observations of the lawyers across the table from me at each mediation.

As a mediator, I have been exposed to much more in terms of the way lawyers conduct mediations on behalf of their respective clients. It has become very clear to me that in many cases, parties could achieve better results if they and their lawyers adhered to some specific rules.

In my view, the first rule that must be followed in every case has to do with preparation. There is simply no substitute for proper preparation for a mediation just as there is no substitute for proper preparation for any other type of court proceeding. A lack of preparation on the part of either party is a serious impediment to success, and therefore a major pet peeve for mediators.

Your counsel will prepare a mediation brief on your behalf and send it to the mediator and to opposing counsel. The purpose of the brief is to present your case in the most positive light possible. Normally the brief will include some reference to the legal basis for your claim or defense and may include copies of documents which support your position.

Hopefully your counsel will review a draft of the brief with you before it is submitted, at least for factual accuracy. Whether you see a draft in advance or not, you should definitely make a point of reviewing the brief submitted on your behalf before the mediation.

Even more importantly, you should be reviewing the brief submitted by the opposing side. I am amazed at the number of times parties that show up for a mediation with very little understanding as to the other side’s position. I cannot understand how anyone can formulate a view as to the strengths and weaknesses of one’s own case, and the probabilities of success or failure, without a thorough understanding of the position being taken by the opponent and the basis for it. You do not want to be hearing about the other side’s position, and the evidence that is going to be put forward to justify it, for the first time at the mediation itself.

Finally, and for the same reason, you will want to obtain from your lawyer, before the start of the mediation, a candid assessment of the case and the range of settlement options to be considered. You will want to understand the range of outcomes reasonably available to you at trial, and the probabilities of obtaining results along that spectrum. For example, in a claim for $100, you may be told that that you have a 10% chance of obtaining nothing, a 10% chance of obtaining $100 and an 80% chance of being awarded $50. In such a case, obviously, the most reasonable settlement result would involve a payment to you of $50.

The difficulty is that the defendant may not see it the same way. He or she may feel that he or she has a 70% chance of walking away from the case without paying anything and only a 30% chance of paying you as much as $50. And that, of course, is why we have lawsuits and mediations. The role of the mediator is to try to persuade the parties to agree to a result that bridges that gap.

The likelihood of a mediator being successful in doing so is directly related to each party’s understanding of the differences between the two positions, among other things. That is the essence of the preparation that is required.

Based on my research and my experience, it seems to me that cultural influences can bear significantly on the topic of conflict resolution.  I am not sure that mediators are typically sensitive to this point.

Certainly, generalizations concerning the manner in which an individual is likely to behave based on any particular culture with which that individual is affiliated will be problematic.  That would be true even if, for example, a mediator was completely familiar with a particular party‘s predominant culture.

Firstly, even members of a clearly defined culture may not behave in a manner that is consist with the type of behaviour that might ordinarily be expected from members of that culture.

Secondly, any attempt by a mediator to analyze how a party is likely to view a conflict or behave in the context of an effort at conflict resolution will itself be coloured by mediator’s own cultural affiliations.  That will be true whether or not the mediator identifies himself as a member of the same cultural group as the party.

Nevertheless, it would be an error for a mediator to ignore cultural influences on parties.  While there will always be a risk of stereotyping a party, there is ample evidence in the literature of relatively common traits that can be identified in connection with various cultural groups.  In my view, it would be a mistake to ignore the evidence that exists.

To illustrate the point using a fairly superficial example, and based on my own experience, we can look briefly at the way in which people approach bargaining.  Bargaining, of course, is a fundamental part of conflict resolution – certainly in the vast majority of mandatory mediations in our jurisdiction.  People from different cultural backgrounds will exhibit a different level of comfort with the bargaining process itself.  In Western culture, for example, in my experience, parties tend to be highly bottom-line oriented. They may find the bargaining process itself to be somewhat frustrating and see it both as a necessary evil and is something to be expedited to the extent possible. They are not particularly used to it and appear to have no desire to become used to it. After all, a consumer in a Western country will go into a store to buy an item off the shelf and, if the price is acceptable, pay the price at the checkout counter without further ado. Typically, the consumer will have no interest in bargaining with respect to that product.

However, in other cultures, the bargaining process is seen completely differently.  In the Middle East, for example, it is perfectly understood that in many marketplaces, no consumer buys a product at the price initially articulated by the vendor.  It is understood that the quoted price is nothing more than an invitation to negotiate.  People from such cultures, therefore, experience bargaining on a daily basis.  They appear to me to be entirely comfortable with the bargaining process and, whether or not they enjoy it, they accept it as a necessary and routine part of life.  While the bottom line remains critical, they may well exhibit a higher level of patience and tenacity than their Western counterparts in terms of getting there.

In my view, one of the factors most fundamental to the question of conflict resolution is that described in the literature as high and low context.  This is the distinction between cultures which emphasize protocol and promote subtle and indirect communication as opposed to direct “get to the point” communication.  This is a key factor simply because it impacts directly on communications between the parties and between each party and the mediator. In Asian cultures, for example, the research indicates that indirect communications are favoured.  Messages are embedded in the implicitly shared and cultural knowledge of members of the group.  Non-verbal communications are as important if not more important than verbal communications.  In the literature, Asian cultures are considered high context.

In a low context culture such as that of the United States, communications and meanings are more literal and direct. Additionally, members of Western cultures seem to be better able to separate the people involved in disputes from the conflict issue itself.

A high context approach to conflict is oriented towards cooperation and problem solving.  A low context approach is more competitive and self-serving. The relevance of these distinctions for the negotiating process involved in a mediation is obvious.  It follows that the greater the sensitivity on the part of each party to the approach dictated, at least as a generalization, by the opposite party’s cultural membership, and the greater each party’s sensitivity to the cultural norms influencing the opposing party, the greater the chances of a successful resolution to the conflict.

The goal for the mediator and any legal counsel genuinely interested in resolution should be to address these cultural influences with the parties so as to raise each party’s consciousness and expedite each party’s progress along a continuum of what has been referred to as stages of the acceptance of cultural differences.  The literature suggests that four such stages exist:

1. a disinclination to acknowledge the existence of other or competing groups;
2. regarding the other group as inferior in some manner;
3. trivializing the differences between the party’s own group and the opposing party’s group;
4. shifting from a state of being group-centered to a state of being group-relative, in which a party sees differences not as right or wrong, or good or bad, and ceases to see his or her own group as the reality against which all else must be measured and judged. At this stage, differences are accepted and at least understood if not valued.

In my view, this is the essence of what a mediator must strive for in a mediation involving parties of markedly different cultural backgrounds:  sensitivity, understanding and the willingness to move parties along this spectrum to a point in which the opposing party is no longer demonized or disregarded, and the possibility of an empathetic response begins to emerge.