Common Ground - April 1999
Often we settle for compromise, the 50% solution when better negotiation skills would provide a result much closer to 100% of what we and they want.
Back to past NewslettersWelcome to the first issue of Common Ground, a resource on win-win conflict resolution for the busy professional.
This is a time of major change in the field of dispute resolution. Common Ground is a vehicle for you to get information about negotiation and conflict resolution strategies that work in the real world - the world we work in and live in every day.
During my sixteen years in law practice I saw that our dispute resolution system through the courts was not the appropriate method to resolve many situations. Sometimes it seemed to be "brain surgery with a hatchet". My search for conflict resolution techniques led me to the Justice Institute in British Columbia and a variety of other training programs. As part of my mediation practice I provide training for people who want to learn to negotiate more effectively for themselves and their clients and people who need the skills to mediate.
Let me know what you think about this first issue. Are there topics you would like to see in future issues? Case examples you would like to let others know about - or on which you would like ideas? Anyone you know who would like to receive Common Ground? I'm always interested in your comments and questions - by phone, fax or e-mail.
And of course, I'm always interested in receiving referrals for mediation or arbitration. I will be pleased to consult with you about whether a particular situation is appropriate for either mediation or arbitration or other dispute resolution techniques. There is no charge for the initial consultation.
Ontario
Mandatory Mediation --
The Rule in Brief
Starting January 4, 1999 mandatory mediation began officially in Ontario. This affects you directly if you are involved in litigation under case management in Toronto or Ottawa. For litigation in other parts of the province it will not affect cases until it is rolled out to that jurisdiction. There are areas where a voluntary court-connected mediation program is being started, modelled on the approach under the Rule. For example a non-mandatory mediation program is planned to start in Waterloo Region early in 1999.
Timing:
In those two jurisdictions Rule 24.1 of the Rules of Practice requires
the plaintiff to file with the mediation co-ordinator a notice stating
the mediator's name and date of the mediation session. This must be done
within 30 days of the filing of the first defence. The mediation session
to take place within 90 days after the first defence has been filed,
- unless the court orders otherwise, or
- unless the parties agree to postpone the mediation for up to 60 days and file a written consent with the mediation co-ordinator.
If the deadlines are not met, the mediation co-ordinator assigns a mediator from the list of mediators for the county. The assigned mediator must immediately set a date for mediation and give the parties 20 days' notice.
Mediators:
Mediators who applied and met the criteria for educational background,
mediation training and experience, familiarity with civil justice and
insurance were placed on a list. The list is open and new mediators may
apply and be added to the list. The list of mediators and other information
about the program can be found on the net at www.attorneygeneral.jus.gov.on.ca.
Cost of
Mediation:
For mediators on the list of mediators the fees are fixed by regulation
at up to $600.00 total for two parties and increasing to a maximum of
up to $825.00 for 5 or more parties. This fee covers one-half hour of
preparation per party and up to 3 hours of mediation. After that time,
if mediation continues the fees are at the rate negotiated with the mediator.
Under the regulation each party is required to pay an equal share of the
mediator's fees. If the parties agree, a mediator not on the list may
be selected and the fees are not regulated. Expenses such as rental of
the facilities or travel costs are not covered under the regulation. The
only requirement is that before the mediation starts the mediator must
ensure that the parties understand and agree to the terms of the mediation
including the expenses that will be charged.
After
Mediation:
After the mediation session the mediator is required to file a report.
If there is an agreement it is to be signed by the parties or their lawyers.
If the agreement settles the action a notice shall be filed within 10
days after signing, or if it is a conditional agreement, within 10 days
after the condition is met.
Case Management:
At this time Rule 24.1 applies only to case managed actions in Toronto
and Ottawa. Only 25% of Toronto actions are case managed at the beginning
of 1999. This is expected to increase to 100% of actions by the end of
1999.
What
is Win-win Negotiation?
One Hundred
Percent Oranges
A classic fable which I use to illustrate win-win negotiation and mediation is the story of two sisters and one orange. The sisters both wanted the orange and their discussion followed the pattern
"I want the orange."
"No, you can't have it. I want it."
Eventually they decided or had imposed on them the solution of cutting the orange in half and giving each sister half. Sister #1 took her half of the orange, squeezed out the juice and threw away the rind. Sister #2 grated the rind from her half and threw away the rest.
When they both told each other their position, " I want the orange," the result was a compromise. If they had asked each other the reason they wanted the orange, in this simple example the solution was evident. Sister #1 was thirsty and wanted a drink of orange juice. Sister #2 was baking a cake and wanted to flavour it with orange rind. Both sisters could have had 100% of what they wanted.
Often we settle for compromise, the 50% solution when better negotiation skills would provide a result much closer to 100% of what we and they want.
Who is Kathryn Munn?