“For good ideas and true innovation, you need human interaction, conflict, argument, debate.”
These are exciting times. There is a building momentum towards justice reform to improve access to justice in Canada and abroad. Many people are coming forward to join the movement including skilled members of the legal profession, Judiciary and government. Increasingly, reform efforts are also involving users in recognition of the need to design a user-centred justice system.
I find it curious that so many of the new reformers are also skilled conflict management practitioners, including mediators. Just as one example, the BC Family Justice Innovation Lab arose out of the efforts of a small group of lawyers who had focused their practices on family mediation and collaborative law. Why is that? What is drawing these folks to devote their time to justice reform and what are the useful skills and experience that they bring?
Here’s the list I came up with as a starting point. I started by reflecting on the nature of what is involved in changing a complex adaptive system like the justice system:
- Reform is about changing human behaviour. Mediators (note 1) study human behaviour and interactions in order to encourage and maintain effective communication.
- Reform honours but doesn’t focus on legal rules and analysis. Mediation exists in the “shadow of the law”. It is helpful to understand how the system works and the legal context but facilitated negotiations are often about much more than that.
- Reform needs to be future focused. Mediators encourage the parties to focus on how they would like the future to unfold, rather than focus on a past litany of wrongs. This is often challenging for lawyers since our training centred on legal precedent and the assumption that the rules and principles applied in the past should also apply in the future.
- Effective reform must involve human-centred (user-centred) design. Mediators are curious people and they are skilled at unearthing the underlying interests of the parties (their real goals, values, hopes and dreams vs their stated positions) and helping them to design a solution that meets these needs.
- Empathy is the key to reform. The mediation process focuses on empathy. The mediator strives to develop and demonstrate empathy for each of the parties and to encourage each party to see the situation from the perspective of the others. Why? That is where the key to resolution lives. This includes surfacing and dealing effectively with feelings. Research shows that human behaviour is much more driven by emotion than logic.
- Reformers need to think systemically. This means identifying interrelationships, considering different perspectives and defining the boundaries of the system. In both reform and mediation, surfacing various perspectives assists the development of various “stories” and comparing “what is” with “what could be”.
- Reform needs to recognize “culture”. The hard work of mediation is in mining the root causes of the conflict, not just the symptoms, and to help parties to bridge any cultural divides.
- Reform involves authentic engagement. Mediators invite all parties (and sometimes others as well) to engage in a fruitful dialogue.
- Reform involves convening. Effective reform often involves large groups, working together. This is also the focus of mediation. Mediators plan well in advance, think carefully of details such as venue, food and seating arrangements and conduct detailed preparation with the parties.
- Reform requires creativity. Resolutions through mediation can involve more creative terms than could be ordered by a court. The mediator can assist the parties to design a package that meets all their needs – not just legal needs.
- Reform requires courage. It is not easy to step out of the “same old same old” and to challenge long held values and beliefs. Mediators demonstrate courage every time they assist a party (usually in caucus) to examine their underlying motivations and to consider a shift in approach.
Of course, there are many things that justice system reformers, including mediators, still need to work on. For example:
- Effective reform involves experimentation and coming to terms with “failure” as an opportunity for learning.
- Reform needs to involve people from various disciplines not just law. In family justice reform, for example, there is a constellation of people who support families during their journey through separation and divorce. Their perspectives and involvement are critical.
I’m sure there are many other reasons and I look forward to suggestions from the Slaw community. I invite those of you who see yourselves reflected in the list above to consider getting involved in justice reform efforts – there are many opportunities available!
Note 1: As a form of shorthand I have used the word “mediator” in this list. However, many other dispute resolution professionals have similar training, experience and aptitude (including parenting coordinators, facilitators, med/arbitrators etc.).