Invitation to the ADR Table: Preparing Clients for a Mediation
By Harold Tan, LLM, Q.Med., CC.Med. and Shaaron Jones–Crawford, C.Med.
Preparing clients for an ADR process like mediation has many similarities to a significant event. For many, this will be the first time in a mediation. They will have questions, concerns, expectations and fears.
The authors have selected the metaphor of Host as Mediator, as both roles require advance planning, attention to detail and creativity.
“Food is our common ground, a universal experience.” (Chef/Author James Beard)
Introduction
The door opens into a room filled with music featuring a Turkish ney. The smell of Seville oranges permeates the air. There is a table with white peonies, thin stemware and blue & white porcelain plates. A calligraphed place card proclaims your name. The Host says “Welcome”. This is the ADR Table.
Preparing clients for an ADR process like mediation has many similarities to a significant event. For many, this will be their first mediation. They will have questions, concerns, expectations and fears.
The authors have selected the metaphor of Host as Mediator, as both roles require advance planning, attention to detail and creativity.
Invitation and RSVP
The Invitation arrives on personalized paper.
Plates, cutlery and napkins are the start of any gastronomic table. Similarly, the Mediator typically considers a variety of elements, including substantive issues, date and location.
A good Host offers hospitality that considers cultural, religious and dietary diversity. The Mediator consciously creates an environment that is welcoming and inviting.
The ADR Invitation includes initial information on the process, roles and responsibilities, and a RSVP that permits the client to expeditiously participate. The Mediator uses the RSVP to look at the client’s response time, tone, potential objections, etc. This intelligence may be useful for the Rehearsal Dinner.
Rehearsal Dinner (“Pre-Mediation”)
Pre-Mediation is where clients get their first “taste” of the upcoming process through their interactions with the Mediator. At the same time, the Mediator can directly observe personal styles and gather vital information on how clients present their issues and communicate. This meeting additionally provides the opportunity to assess whether further supports, such as conflict coaching, interpreter, etc., may be required before a Joint Session.
The client who enthusiastically embraces new experiences, like sea urchin and dragonfruit, are often more likely to be keen to acquire skills such as “I” statements and restating. The Rehearsal prepares the client, allays their fears, and boosts their confidence.
Pre-Mediation is also the platform for the Mediator to demonstrate their competence and authority. A well-organized Rehearsal Dinner considers every detail, and reassures guests that the ADR Table will be beneficial to them. Guests who are now confident in which cutlery to use for each course will, with ease, fully participate.
The Day Arrives (“Mediation”)
Before the mediation formally begins, there are many opportunities for the Mediator to create the right mindset and gain valuable insight. Staggered arrivals offer the Mediator a chance to engage with each client individually and converse on neutral topics, such as movies, books and gardening. This “small talk” may lower the tension in the room by giving each client space to engage. One client may share their experience having dim sum; the other may recommend a place for jerk chicken. Small talk creates connectivity before everyone settles into the task at hand.
The Mediator gathers intelligence by strategically watching how the clients react.
Once seated, the Mediator’s opening typically includes the agenda, guidelines for civility, and housekeeping, etc. The opening allows the Mediator to focus on the immediacy of the moment by recapping the benefits of the process they are about to start now.
After the opening, the Mediator invites the clients to participate by speaking and listening in a pre-determined order. Like a saffron-infused bouillabaisse being served from a single tureen, the clients recognize they are partaking in a shared experience by having the same dish for the first time from a communal vessel.
As the mediation unfolds, conversations may move in different directions. The clients will decide what they want to say, and the palates start to differentiate. One may opt for lamb kebabs; another may choose the black corn tortillas. By offering and honouring a menu which embraces diversity, the Mediator models respect for differences in taste and sets a positive tone for the process.
Just as a Host ensures the stemware is constantly replenished with prosecco or ginger beer, so too the Mediator pays attention to hospitality, timing and scheduled breaks.
The Mediator observes shifts in tone: whether language becomes less accusatory, an unprompted apology or genuine laughter. These signs may indicate whether the clients are ready to shift from dialogue to settlement. Settlement is the client’s dessert course and the “reward” for the work and time invested.
Parting (“Settlement”)
Before dessert is served, the table setting changes. Plates are cleared. Guests know something different is to follow. Before clients move towards settlement, the Mediator marks this transition by highlighting the progress made, and acknowledges there has been a shift. Areas of disagreement may have been narrowed; the mood is more optimistic. The Mediator affirms that the clients are close to achieving their goals, and asks if they are ready to move towards settlement.
By the dessert course, guests recognize that different palates exist. One may select the cherry marzipan tart; another may choose the Stilton, Manchego and Chevre. The fact that savoury and sweet can co-exist is the Zone of Potential Agreement, and permits the Mediator to negotiate common ground. Here, the Mediator highlights the progress made in reducing reputational damage, legal costs, confidentiality and the benefits in reaching settlement today. The Mediator carefully articulates what is important to each client and ensures some of their requirements are covered in the ZOPA.
Conclusion
The Settlement Agreement has been signed and the clients are ready to leave. Just as dinner guests take photos to capture their experience, the Mediator invites the clients to capture their signed Agreement.
The Mediator watches for sighs of relief and spontaneous conversations that may arise between clients about new food truck recommendations. All may indicate future possibilities between clients.
The Mediator thanks each client as they leave and encourages them to mark today’s achievement by treating themselves: a new place that serves Singaporean chili crabs perhaps.
For the clients, the dining experience continues.
“I watch cooking change the cook, just as it transforms the food.” (Laura Esquivel, Author of Like Water for Chocolate)
Harold Tan is a Mediator, Investigator, Adjudicator, Author, Humber College (Longo School of Business) faculty, and York U (Continuing Studies) coach. He holds a LLM (Alternative Dispute Resolution) from Osgoode Law School, a Qualified Mediator (Q. Med.) designation with ADRIO/ADRIC, and a Chartered Community Mediator (CC. Med.) designation with the Ontario Community Mediation Coalition.
He holds an Advanced Certificate in Peacemaking Circles (University of Waterloo), and is trained in Restorative Justice (Ontario Ministry of the Attorney General). Additionally, he holds a Certificate in Adjudication (Osgoode Law).
Harold has published in ADR Journals, including the Canadian Arbitration and Mediation Journal.
Shaaron Jones-Crawford is an internationally trained Barrister with experience in Mediation, Arbitration and Alternative Dispute Resolution. She holds an LL.B and LL.M., called to the Bar of England and Wales and is a member of The Honorable Society of Lincoln’s Inn in London, England. Shaaron holds a Chartered Mediator (C.Med.) designation from ADRIO/ADRIC.
Shaaron holds an Executive Certificate of Conflict Management (EC.CM) from Windsor Law School, and also holds a Certificate in Adjudication (Osgoode Law School).
Shaaron is also a licensed Attorney-at-Law in the Caribbean, which permits her to practice in multiple Caribbean jurisdictions. Shaaron practices predominately in corporate/commercial ADR.
