Dear Reader: The following column contains references to popular music of the mid-1990s. To heighten your reading experience, we recommend you familiarize yourself with the lead single from Alanis Morissette’s Jagged Little Pill album, along with the catalog of “Weird” Al Yankovic. It also would not hurt to hear Warren G’s Regulate, an anthem of the G-Funk era. But for that of Yankovic, the music referenced contains explicit lyrics and deals with mature subject matter that may not be suitable for everyone. Listener discretion is advised.
It was the summer of 2022. Social media was abuzz.
An Alanis Morissette fan took to Twitter to share a picture of a commercial vehicle bearing the name “Alanis Landscaping”. In jest, the fan suggested a connection between the operation and Morissette, captioning the image YOU OUGHTA MOW.
Perhaps drawing on the sketch comedy roots of her youth, Alanis responded with a pun of her own… “and i’m here, to remind you of the grass you left when you went away”.
“Weird” Al Yankovic was then compelled to step into the exchange with… “Hey! Stay in your lane!”
A similar sentiment is directed toward some lawyers from some dispute resolution practitioners. Specifically, toward those legal professionals who put themselves out there as mediators without having dispute resolution training. Without a mediation designation. It would appear these lawyers decided all on their own that they deserved a mediator title, so self-anointed. It would be like a participation ribbon, except they lack experience mediating, too.
To be fair, the phenomenon is not limited to the title mediator. Several lawyers seem to view being a lawyer as somehow qualifying them to be experts in things that extend beyond what they were taught in law school. The economy, pet whispering and fashion are a few of the prominent ones trending these days. This is not to say that someone who happens to be a lawyer cannot also be an excellent economist, pet handler, fashion icon or mediator. The point is that being a lawyer is not indicative of one possessing the skills or qualification needed to be any of those things.
Being a lawyer means that you can practice law. You can practice law without economic success, with poorly behaved pets and in the threads of trends long past. Having a licence to practice law does not equip you with what you need to mediate.
You can’t be any geek off the street
Two years ago, legendary arbitrator and mediator Barry Fisher shared an article on LinkedIn about mediator regulation. Fisher stated, “lawyers/mediators (like me) are partially regulated by the LSO but non-lawyer mediators have no regulatory authority over them”. The point is well taken. At least a lawyer/mediator has some regulation.
Of course, the Law Society of Ontario is not in the business of regulating mediators. The regulation it extends to practicing mediators is limited. The focus is on keeping the lawyer within the lawyer/mediator in check; preventing that inner Hyde from coming out when in the Jekyll element, mediating.
A lawyer who acts as a mediator shall, at the outset of the mediation, ensure that the parties to it understand fully that
(a) the lawyer is not acting as a lawyer for either party but, as mediator, is acting to assist the parties to resolve the matters in issue; and
(b) although communications pertaining to and arising out of the mediation process may be covered by some other common law privilege, they will not be covered by the solicitor-client privilege.
As the public has come to expect with the involvement of lawyers, this adds an additional layer of complication. An important one though, as when a lawyer mediates, it is essential they are not seen as acting for any party or offering the protection of solicitor-client privilege. In the role of mediator, they cannot. Being a lawyer who happens to mediate does not come with those additional benefits to offer one’s clients. In fact, several law societies across the country seem wary it could be perceived that way.
Regulators, mount up!
The Code of Conduct for Mediators of the ADR Institute of Canada focuses on what the mediator does rather than what the lawyer does not do. It looks to uphold confidentiality, independence and integrity, ensure the fundamental mediation principle of self-determination is maintained and impose restrictions around advertising that promote the formation of appropriate expectations.
Well-warranted concern exists around those offering mediation services who have not voluntarily subjected themselves to such regulation; this includes having appropriate insurance and training. Fisher represents a good example of a lawyer who is appropriately qualified to mediate. He is highly decorated, and took renowned mediation training during the original Jagged Little Pill World Tour. A respected leader in the field, Barry Fisher also generously gives his time to support others finding their way in dispute resolution; this helps to ensure that lawyers and others with interest in pursuing this work earn the title of mediator.
Concern around a lack of qualification in the unregulated profession of mediation extends to any and everyone who calls themselves a mediator without third party verification that they are worthy of the title. Lawyers and non-lawyers alike. By way of example, the Qualified Mediator (Q.Med) and senior Chartered Mediator (C.Med) designations bestowed by the ADR Institute of Canada offer significantly more extensive, robust and vibrant regulation of practicing mediators than the Law Society of Ontario. As it should be, given the “lane” each entity is in.
Damn, what’s next?
Jennifer Egsgard of Egsgard Mediation is an experienced mediator who received international, high-level mediation training. Jennifer has led mediation advocacy efforts in both Ontario and the United Kingdom. In 2018, Egsgard conducted a market survey of Toronto litigators. The question posed was if they would select a mediator who also practices law or a lawyer who now exclusives mediates. Egsgard found that “about 95 per cent replied they would prefer to hire a mediator who is no longer practicing law”.
The natural next question, then…
Is it better for a mediator to have practiced law and stopped, or for them never to have practiced law at all?
While legal practice is not a replacement for mediation training, it offers experience that could be leveraged for evaluations, reality checks and empathy provided in the course of rendering mediation services. Valuable, applicable experience of this nature is not limited to the practice of law, though.
Maurice Ford MSc., Q. Med., OCT., WFA., RP is a well-respected mediator whose background is not in the practice of law, but psychology and psychotherapy. Ford says, “I am not a lawyer, which I make clear to the parties, and they are usually quite receptive of this because they feel as though a non-lawyer has a clear view of their dispute beyond simply the legal issues.” He helps clients use case law as a guide, yet appreciates that mediation can look beyond the scope of legal considerations. Maurice Ford Mediation long ago recognized the importance of fluidity in the mediation process, implementing a range of styles and techniques based on the dynamics of the situation, nature of the conflict at hand and how the process unfolds. Sometimes, a legal lens can be helpful. Other times, empathy and a little practical understanding make all the difference. It can even all come down to cultivating the right environment for creative collaboration – what Maurice Ford calls the “Zen of Mediation”.
And, there’s the rub. The work of a mediator extends beyond addressing legal components of a conflict. Mediation is a unique dispute resolution process that allows for outcomes ranging well beyond any spectrum that can be contemplated in a court of law. So, while a legal background can be well put to use in mediation practice, the best lawyers-turned-mediators are those who extend beyond what they learned through legal practice to help their clients. There just may be merit in understanding the economy, handling pets well and being fashion-forward after all!