Commercial mediations are about story telling. Last Friday, I had the occasion to present a mediation talk through the Continuing Legal Education Society of British Columbia. Being late on a Friday, I was pleased to see that almost all registrants had remained to hear my comments on mediation with reference to personal injury disputes. However, I realized that the speakers to follow me being, The Honourable Mr. Justice Peter D. Leask of the Supreme Court of BC and Stuart Cameron, Registrar, Supreme Court of BC may have had something to do with the extended attendance!
Never daunted by a reasonable challenge, I tried to up my game and give of my 2,000 plus mediation experience to the audience of paralegals and legal assistants. There were two points that I raised in the talk which I would like to under-gird here and many others that I will include in subsequent posts.
1. There is nothing wrong with there being different viewpoints in a mediation or generally, provided that the end result is not destructive, harmful or violent. Debate and point counter-point are important in our society and in our disagreements. The constructive result of different concepts is that creativity thrives on debate and ideas and a monotone world can be stagnant and unhealthy. Perspective expressed in an intelligent and mannerly way can help make mediation a very informal and useful way of resolution without the need to cross the court-room threshold. Express your perspectives but also listen to the other side. When that is accomplished, put an ear to the details of how to come to a consensual conclusion. Invariably, the end result with benefit both sides.
2. Tell the Story. I explained to the audience that one of the most effective things counsel can do in a mediation is tell a story with clarity and direct links to the evidence and the facts. As the opposing counsel hears a concise and clear version of matters they will advise their client that if the story is told in a similar fashion at trial, the adjudicator will apply the story to the law and if it fits, there will be a favourable decision for the storyteller. To my gratification, Mr. Justice Leask stated early in his talk that the previous speaker, in reference to story telling in mediation and litigation was right on the mark.
Maybe I should start doing litigation again or perhaps that was plateau point!