Common Ground - Fall 2001
In June it was announced that former pilot program for Toronto and Ottawa has been found to be successful and will continue permanently in the Ontario Rules of Civil Procedure.
The Next Generation
Ontario Mandatory Mediation Program: The Next Generation Mandatory mediation is now a permanent feature of civil litigation in Ontario - at least in Toronto and Ottawa. What is not included in the announcement is the question for the rest of the province: when is the mandatory mediation program going to be extended to the other parts of Ontario? This "rollout" of mandatory mediation services was part of the government's original announcement of the program but was not part of the recent announcements.
In June it was announced that former pilot program for Toronto and Ottawa has been found to be successful and will continue permanently in the Ontario Rules of Civil Procedure. Rule 75.1 for mandatory mediation in estates matters will be extended for another 3 years for further evaluation of that Rule. There will be some minor changes to Rule 24.1. The text of the amendments is on the Ontario Gazette website at www.ontariogazette.gov.on.ca.
Good news for the beancounters. The regulation on mediators' fees will continue unchanged until 2004. This fixes the maximum which a mediator can charge to $600.00 total for 2 parties up to a maximum of $825 for 5 or more parties. This fee covers one-half hour of preparation per party and 3 hours of mediation.
As of July 1, Toronto also increased its case managed actions from 25% to 100 %. The mandatory mediation Rule only applies to case managed actions, a special system for court administration which is in some areas of the province.
So far the change to add three times as many mediation cases in Toronto has gone smoothly, perhaps due to the experience of counsel with the Rule for the previous 2 1/2 years or perhaps due to the summer slowdown of litigation. It is expected that there will be an increase in case management motions concerning the timing for mediations as well as other steps in the process.
How to Discuss What Matters Most
Stone, Bruce Patton and Sheila Heen of the Harvard Negotiation Project.
Penguin Books, 2000
If you have any topics in your life that you find it hard to resolve with others (and who among us does not?), then this is the book for you. Difficult Conversations is another in the series of books by the Harvard Negotiation Project, best known for Getting to Yes from 1981.
The authors define a difficult conversation as anything you find it difficult to talk about. They break down a difficult conversation into three components: The "What Happened?" Conversation, the disagreement about what happened or who's right. The Feelings Conversation, which is part of every difficult conversation although not addressed directly. Finally, The Identity Conversation is the one we have with ourselves about what this situation means to us.
The authors then suggest the approach of shifting to a learning stance so that instead of arguing about who is right we "explore each other's stories", "disentangle intent from impact" and "abandon blame". They discuss finding - and negotiating with - our own feelings buried under judgments and accusations. While the identity conversation is never easy, our identity is less threatened if we are prepared to cope with a challenge when it comes up and to let go of all-or-nothing thinking.
The second half of the book is focused on the positive: "Create a Leaning Conversation". There are chapters with practical suggestions such as "What's Your Purpose? When to Raise It and When to Let Go" and "Expression: Speak for Yourself with Clarity and Power". For those who are familiar with win-win negotiation, the ideas are old tried-and-true strategies such as listening from a stance of curiosity and interest-based problem-solving. While the ideas aren't brand new they are packaged in a format which may make them easier for readers to apply to the conversations in daily life. For those not already familiar with interest-based negotiation, this book may be even more helpful with its down-to-earth, step-by-step approach.
The writing style is smooth and easy to read. There are lots of concrete examples to illustrate the concepts. At the end of the last chapter there is a one page checklist which is useful for preparing to have your next difficult conversation. The book ends with a "roadmap" listing all the chapter and section titles in the book, a useful summary for review of the concepts.