Adversarial Versus Problem Solving Approach In Resolving Disputes
By Harinder S. Gahir
Lawyer, Mediator and Arbitrator
Former Chairperson CCP Review Tribunals
Former Vice Chair, Licence Appeal Tribunal, Ontario
The traditional adversarial approach may be essential in the litigation process, but it does not work well in mediation. Many lawyers bring the same adversarial skills into negotiation. In the past, “Coercion, manipulation, even dirty tricks were all too acceptable means for ‘winning’ in mediation. By adopting these skills, there were tradeoffs and compromises, winners and losers. And ‘resolution’ often came with seep wounding-psychological, emotional, financial for both parties1. The public and the profession does not expect this out of mediation. We need more skilled and better trained and equipped mediation advocates to rein in the overly zealous advocacy displayed at mediation”.2
The mediation advocate must acquire a new set of “mediation advocacy” skills because traditional trial advocacy does not ensure optimal success in mediation. We need to focus on our relationship with the other lawyer and the mediator and must explore why and how we as an advocate for our client partner with the mediator to achieve optimal results.3
To achieve the above objectives, we do not need to entirely discard evaluative techniques. “The empirical evidence suggests that most lawyers are unlikely to be able to sustain purely facilitative, non-evaluative behavior in mediation.”4 We may use cautiously cooperative strategy to create “settlement momentum” by starting cooperatively, slowly adapting with the dynamics of the mediation.5
We can reap substantial benefits for our clients when we act with courtesy and professionalism and are willing to work with the other side to reach a mediated solution6. Successful mediation starts with a lawyer who has the correct attitude and brings the same creativity, energy, and dedication to this process as we do to our litigation. Instead of being the client’s sword and shield, we must be the client’s problem solver and peacemaker.
It is essential to remember that, “litigants not only want justice, they expect a careful, thorough and unbiased procedure over which they retain at least some control – they want someone to listen and understand.”7 We must keep in mind mediation’s flexibility as mediation is oriented toward openness and adaptability.8 It is a flexible, informal, and non-adversarial process that allows creative settlements based on legislative requirements, industry standards, and the needs, concerns and wants of the parties.