There are many things to consider when choosing an effective mediator

By Tony Poland, LegalMatters Staff • Finding the right mediator is an important first step in conflict resolution and there can be many aspects to consider before agreeing on the ideal candidate, says Ontario mediator and litigator Avril Hasselfield.

The law is complex so it only makes sense to select an experienced mediator. But do they also have to be experts in the subject matter being litigated? Not necessarily, says Hasselfield, a partner with Results Mediators.

“There are pros and cons that must be weighed by both sides when choosing a mediator but not having an extensive background on a particular issue should not be a dealbreaker,” she tells LegalMattersCanada.ca.  “Arguably, the best-case scenario would be a subject matter expert who is also an expert mediator. It does help to have a solid background in the topic at hand, but everyone needs to learn new things and start somewhere. But at the end of the day, I believe people would rather have a great mediator who understands litigation and all the nuiances of mediation but may not have the most in-depth knowledge on the subject, as that is what counsel is for.  The point of the exercise is to get people to a settlement, by moving things along smoothly, and a good mediator knows how to do that.”

Hasselfield says it is the mediator’s job to remain neutral and impartial while bridging the interests of two opposing parties to formulate a solution that has merits for both sides.

Search for common ground

“The goal is to create a space where the parties  are confident that their position is being represented so that they can see the common ground.  I always tell my clients that my role is not to evaluate their case, both sides have already done that. My job is to find if those valuations can overlap,” she says.

According to the Government of Canada, mediation “is not a contradictory process and is not meant to determine who is right or who is wrong.” Instead, mediation:

• encourages the sharing of information;
• establishes or re-establishes communication between parties;
• establishes or re-establishes personal and/or professional relations between parties;
• identifies and narrow the issues;
• clarifies misunderstandings and perceptions;
• helps parties understand each other’s views, needs, interests and realities;
• encourages positive and productive exchanges between parties and shifts the focus from the past to the future;
• encourages flexibility and creativity;
• helps parties to realistically evaluate alternatives;
• can assist in resolving other issues attached to the main problem; and
• can reach an agreement in a shorter timeframe than in a formal hearing and at lower costs.

Hasselfield says the opposing parties are not necessarily looking for someone to take their side.

‘They want a mediator who can get the job done’

“They want a mediator who can get the job done,” she says. “They want someone who they either like and/or respect although it doesn’t always have to be both. Often, they will seek out someone they know or someone with a good reputation.”

Having an intimate knowledge of the subject matter in dispute is one more part of the puzzle, Hasselfield says.

“There is value in it, but mediation is about litigation, which has universal threads that run through it,” she explains. “You do not have to know the specific details of every issue. However, what you do need to understand is the court system and what would happen if the matter went to trial and how a judge might interpret the issues.”

While having a grasp on the subject matter can be helpful, there are some things a mediator is unable to research in advance, says Hasselfield.

“I practice a lot of disability insurance, for example, and there are certain things that you cannot learn ahead of time without having the prior experience, such as how tax treatments and release language will be dealt with. There are certain nuances you may encounter depending on the situation,” she says. “Can you research a subject matter in advance? Yes. Can you learn all the nuances? Unlikely. However, that will not hinder your ability to settle.”

‘There are certainly advantages’

Still, while it is not always necessary to be a subject expert, there are certainly advantages, Hasselfield says.

“Not having an extensive background in the matter at hand can slow the process because the lawyers might have  to explain to the mediator how things work,” she says. “If you have a mediator who knows all the ins and outs, there is no learning curve.

“However, it is also important to remember that even if the mediator is not a subject expert, you have lawyers on each side who are or should be. So do you really need the mediator to be one as well?”

Hasselfield says experience is the best teacher and after more than 20 years in practice, she has developed an extensive background in many areas  of the law.

“I have been both  plaintiff’s counsel and defence counsel,” she says. “I understand the issues  from both sides.”

A good mediator is defined not only by what they know but how they practise, says Hasselfield.

People skills are vital

“People skills are vital. I try to convey the right balance of affability and authority, but an authority in a way that is positive,” she says. “I bring a great deal of positive energy to an experience that can be extremely stressful.

“Many times, people are positional, and they are angry, but I work to make it a positive experience or at least a positive outcome,” Hasselfield adds. “The common thread I have found with successful mediators is that they are amicable. If you have the right personality, people will respect and listen to you and they will be less inclined to be dismissive of your counsel.”

She says being a subject matter expert brings added value to the mediation process.

“However, you still need to be able to instill confidence that you are helping your clients and that you know what you are talking about,” says Hasselfield. “A resolution can still be achieved without all that knowledge. It is just a matter of what the experience will be like for everybody.”

As a mediator, she says she is always willing to put in the time to learn as much as she can about the areas of the law she practises.

“I enjoy a challenge and as a mediator, I want to work in many  areas of the law to balance my practice,” Hasselfield says. “A good mediator will bring all their skills into each area and can become an expert in any subject matter.

“But in the end, the most important attribute is the mediation skills you possess,” she adds. “Subject knowledge is helpful but not 100 per cent necessary. You have to develop yourself in able to build your reputation and your success.”

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