Asking for an Apology (Part 2)

One of the most popular posts on this blog is one I wrote more than two years ago, about asking for an apology.  At least once a day, someone somewhere searches for the phrase “asking for an apology” or “how to ask for an apology” and finds my post.

Unfortunately, some who find the post will be disappointed because I do not actually explain how to ask for an apology.  So I decided to remedy that today.

First, a disclaimer:  I do not believe that those people searching for “how to ask for an apology” are searching for the right thing.  Asking for an apology is actually pretty easy.  “You owe me an apology” will do it.  The harder part – the part that people really need help with – is in telling someone else why they owe you an apology.  And that is what I want to help with.

1.  Raise your concern about a specific act or specific pattern of behaviour.  “You were an hour late meeting me” or “The last three times we’ve arranged to meet, you’ve been very late.”  Do not say something like:  “You are always late” or “Why can’t you get it together and be on time?”  Also resist attacking the person’s character:  “You don’t care about anyone but yourself!”
2. Tell the person how their actions effect you:  “When you are late to meet me, I feel like you don’t care about my time” or “I feel frustrated if I don’t know when you will arrive and I have to wait.”
3. Then pause.  Give the other person a chance to say something.  Maybe he or she will take the opportunity to apologize.  Maybe not.  Unfortunately, you risk the other person saying something like, “Gee, you’re so uptight.  What’s the big deal about being a few minutes late?”
4. If that happens – if the person you’re addressing attacks you or mounts a vigorous defense instead of apologizing – what you should do next depends very much on your relationship.  Is this someone with whom you can have a calm discussion?  Is this someone who is incapable of a genuine apology?  Is this someone you simply must get along with, such as a family member?  Unfortunately, there is no pat formula for what you should do.  But see the next step.
5. Apology received or not, you can say something like this:  “In the future, I would like you to…try harder to be on time or … call me if you’ll be late or …whatever you think would improve the situation for you.

Asking for an apology – and especially telling someone why you feel you deserve an apology – is risky.  Yet if you don’t do it, the person who has upset you may never understand the effect that their words or actions have had, and your relationship may never be the same.  You have to decide for yourself if taking the risk and asking for an apology is the right thing to do.

If a Tree Falls …. Do We Have to Fight About It?

I’ve written before about how microwave ovens are a source of conflict among co-workers.  When it comes to conflict between neighbours, trees appear to be a leading source of tension. Now a recent court case about a Toronto tree has clarified some of the legal issues relevant to trees in Ontario.

It would seem to be common sense, as well as a provision of the Forestry Act, that if a tree trunk is growing on the boundary between two lots, then the tree is the common property of the adjoining landowners.  If a tree is indeed jointly owned, and one of the owners wants to remove it, the other owner must agree.  However the Forestry Act does not specify where the tree’s trunk begins and ends.  If the trunk of the tree emerges from the ground directly over the property line, then the tree is pretty clearly jointly owned.  But matters are rarely so simple.

In the Toronto case the tree trunk met the ground on Katherine Hartley’s property, but its roots, canopy, and part of the trunk extended over the property boundary into her neighbours’ back yard.  At some point (and for reasons that were not clear in the legal documents) Hartley came to the conclusion that the tree was unhealthy and decided to have it removed.  Her neighbours, Hilary Cunningham and Stephen Scharper, would not consent to the tree’s removal, so Ms. Hartley sought the court to declare that she was the sole owner of the tree and so did not require her neighbours’ consent. 

The judge dismissed her application and found that the tree was jointly owned.  After hearing expert evidence from two arborists and a landscape architect, and reflecting on the dictionary definition of “trunk,” the judge wrote that the relevant section of the Forestry Act, “includes within the ambit of the meaning of a tree trunk growing on a boundary line the entire trunk from its point of growth away from its roots up to its top where it branches out to limbs and foliage. In any event, it is not only the arbitrary point at which the trunk emerges from the soil that governs.”  Furthermore, since Ms. Hartley provided no evidence that the tree was unhealthy, her “wish to remove the tree falls short of a need to do so.”  In a subsequent decision the judge awarded costs to Cunningham and Scharper on a “partial indemnity” basis – in other words, besides having to pay her own legal costs, Hartley was responsible for paying over $13,000 of her neighbours’ costs.


Is this a conflict that should have been mediated?  There is no doubt that mediation would have been less expensive than litigation.  And since Hartley, Cunningham and Sharper will presumably continue to live next to one another they would have benefited from mediation’s ability to preserve and even strengthen relationships.  While I am a strong proponent of mediation, I also realize that it isn’t right for every case, and I do not have enough information to guess whether a mediation could have been successful in this particular case.  However Justice Moore’s decision makes it clear that if a tree is jointly owned then its future has to be determined by both owners.  His ruling should help neighbours in similar situations understand the legal landscape, so the speak, and assist them in coming to mutually agreeable decisions.

The Photographer, the Telephoto Lens, and the Angry Neighbours

When photographer Arne Svenson was given a telephoto lens by a bird-watching friend he was keen to try it out and hit upon what seemed to him an excellent subject:  His neighbours across the street.  Svenson lives in lower Manhattan, and the building facing his is made up of floor-to-ceiling windows.  At any time he could see three floors of urban family life and he documented a great deal of it over a year and a half.  The telephoto lens captured couples having breakfast, children squabbling, people retreating to the bathroom to talk on cellphones, someone taking a nap on the couch, and other vignettes of daily life.  The neighbours found out about Svenson’s project when some of the photographs were displayed in a gallery and the exhibit was written up in a local newspaper.  They were shocked and angry to find themselves unaware photographic subjects and some are considering legal action.

Before Svenson embarked on the project he consulted a lawyer and was apparently told that there was little expectation of privacy in a city as crowded as New York.  I find this a little surprising.  Many of the previous cases involving the rights of photographic subjects involved photos taken in public places, and I would have thought that there was a basic right to privacy within one’s own home.  Nonetheless, it is a little depressing that Svenson’s mulling over the ethics of his project seems not to have gone beyond consulting a lawyer.  Not that I have anything against lawyers.  It’s just that legality should be a minimal requirement for an action, not a signal to barge full-steam ahead.

I have read a few discussions of the case, and they are mainly of the “hand-wringing” variety.  They combine a discussion of legalistic issues with consideration of the photographs’ artistic value.  Are the photos “good enough” to justify the incursion of privacy, if indeed the neighbours’ expectation of privacy in their homes was reasonable?  (At least a few people seem to think that it was not.)  Many of the commentators find themselves torn.  They admire the photos yet empathize with the neighbours’ feelings of anger and violation.

These discussions neglect some important matters.  Recently in a few places I’ve seen the advice offered that it is better to ask forgiveness afterwards than to ask permission before.  In other words, do what you want, act now and worry later about the consequences and those whom you may have hurt.  (Not that I know whether or not Svenson has asked for forgiveness.  He is said to be “surprised and upset” by his neighbours’ response.  Really?)

For me, the ethical crux of the matter is that Svenson has treated his neighbours in a way in which they could not possibly have consented.  One cannot consent to be secretly photographed.  And Svenson did this not once or twice, but repeatedly, over about eighteen months.  Then he compounded this error by displaying the photographs publicly, again without asking permission of his subjects.  Even if some of his neighbours admire the photographs, they probably feel like they have treated as a means to an end – in other words used.  Small wonder that they are upset.

Still, I hope that Svenson and his neighbours will find a resolution outside of a courtroom.  I hear that there are some great mediators in New York City.

Hat tip: I first read about Arne Svenson and his neighbours in Raffi Khatchadourian’s “Talk of the Town” piece titled “Stakeout” in the May 27, 2013 issue of The New Yorker.  I have decided not to provide a link to the photographs.

Review of Who Gets What: Fair Compensation after Tragedy and Financial Upheaval by Kenneth R. Feinberg

Money is the medium of exchange, and it is the means by which victims in the civil justice system are made “whole.”  Even those who everyday speak of the “value” of injuries and cases (including lawyers, mediators, arbitrators and adjustors) must pause sometimes and find this strange.  Pain and loss seem incommensurable such that any monetary “value” put on them can only be arbitrary.  And yet how else might victims be made whole, if not with money?

Kenneth Feinberg has probably had more opportunities to ponder these questions than any of us.  He has had a remarkable career as an arbitrator in the aftermath of terrible and large-scale crises.  In 1984 he was appointed special master of the settlement that ended the class action suit of 250,000 Vietnam veterans against the manufacturers of the defoliant Agent Orange.  Years later he acted as head of the September 11th Victim Compensation Fund and was the target of considerable anger and frustration, when, as was certainly inevitable, there was disagreement over whom should be compensated and what compensation would be fair.  Either of these positions would have given Feinberg a abundance of experience and material for reflection.  Yet these two positions do not exhaust his experience.  He also managed the Hokie Spirit Memorial Fund (for victims of the mass shooting at Virginia Tech in 2007); he was appointed by Treasury Secretary Timothy Geithner to determine executive pay for companies that benefited from the Troubled Asset Relief Program (TARP); and he administered BP’s Gulf Coast Claims Fund in the aftermath of the 2010 Deepwater Horizon explosion and oil spill.

In Who Gets What Feinberg tells us how he came to be seen as the go-to person for resolving complex public legal disputes.  Then he reflects on his major appointments: The legal framework in which he worked and how that framework constrained him, how he arrived at decisions, and what he learned from each assignment.  (I have not read his earlier book, What is Life Worth? devoted to his tenure as special master of the September 11th Fund).  Although Feinberg has no formal training in alternative dispute resolution, his methods will be familiar to those who do.  He values his neutrality and the public perception of that neutrality.  A former aid to Senator Edward Kennedy, Feinberg was appointed to the September 11th Fund by the Bush administration, and then to the TARP assignment and the Gulf Coast Fund by the Obama administration.  He stresses the importance of listening and of making disputants feel heard.  In each assignment, Feinberg made considerable efforts to ensure that anyone who would be effected by his decisions had an opportunity to meet with him and plead their case. And when disputants are reluctant to settle their claims, Feinberg knows the issues well enough to be effective reality tester.  (He asks the lawyer of a retiring CEO if he wants his client “dragged before Congress to justify his salary as he departs?” when the lawyer has balked at accepting Feinberg’s recommendations.)  Feinberg also recognizes, as do all good mediators, that money also has symbolic value and that financial compensation is about more than a number of dollars.  This lesson is impressed upon him a number of times in his career, whether he is dealing with relatively poor Vietnam war veterans, or with wealthy Wall Street Executives (who, not surprisingly, give him his biggest headaches.)

Although Feinberg tells us something of his early life and career, I found that gained little sense of his personality though the book.  He writes well and clearly, if with little pizzazz.  Feinberg has had a unique and fascinating career as a mediator and arbitrator, and I think that anyone interested in public conflict or in alternative dispute resolution, or even in recent American history, will find the book of interest.

Why to keep talking (even if there is “nothing to discuss”)

I recently read the Ontario Human Rights Commission’s Policy on Competing Human Rights.  One of the things that struck me was that they recommend mediation or some kind of facilitated discussion, even if it is clear from the outset that a complaint may have little merit.  Why would mediation or discussion be a good idea even if no one’s rights are violated, or even when it seems obvious that one party is in right and the other party is in the wrong?

Some reasons why it might be a good idea to keep talking:

Even if it does not result in agreement, a discussion can clear the air.  People involved in a conflict sometimes often have a need to express their point of view.  They want the other side to understand their position, even though they realize that it may not result in any concrete change.  A frank discussion, with or without the help of a mediator, can help them achieve that.

A discussion can be educational.  Sometimes conflicts arise because people simply are not aware of the rules or of others’ rights.  Just as crucially, people may have no idea how others feel, or just how important others might find something that seems trivial.  A discussion can reduce the possibility of future misunderstanding and inadvertent offense.

Even if the rules are clear, the details of compliance might require a discussion.   I used to live near a playground where a posted sign proclaimed a single rule:  “Respect Everyone.”  A lovely sentiment, to be sure, but what does that mean in practice?  By their very nature, rules do not contain the details of their application.  Two people might have very different ideas about what it means to “respect” others.  A discussion of the specific actions that the rules require and forbid can go a long way toward preventing misunderstanding and conflict.

Considering a different perspective can help clarify your own.  Even if you never change your mind about an issue, listening to a different perspective can be useful.  It can remind you of the reasons why you hold your own view.  It can make your own view clearer to you.

It is important to be heard.  Just as it is important to hear another party’s point of view, it is important to have your own position heard.  Even if no one changes their mind, it is important to have one’s own view attended to and acknowledged.  This is impossible without discussion.

Mutual understanding and respectful acknowledgement is not a substitute for agreement, but it may be the next best thing.  The next time you think to yourself that there is “nothing to discuss,” please reconsider.

Competing Human Rights at the Art Gallery

The Dowse Art Museum, a municipal art gallery in Wellington, New Zealand was recently the subject of a human rights complaint when it announced a “women and children only” exhibit.

The exhibit in question is a short (3 minute) documentary film called “Cinderazahd: Behind the Veil” by Qatari-American filmmaker Sophia al-Maria, and is being shown as part of the wider exhibition, “In Spite of Ourselves:  Approaching Documentary.”  The film, apparently shot on a hand-held camera, shows a group of Qatari women and children getting ready for a wedding.  Because the women are unveiled, al-Maria stipulated that the gallery could show the film only on the condition that men be prohibited from watching it.  Cam McCracken, the gallery’s director, agreed to the stipulation and has not seen the film himself.

The decision to exclude men proved controversial .  (“Dowse prepares for worst ahead of exhibit” read a headline in The Dominion Post.)  The case caught my attention because I recently read Ontario’s Policy on Competing Human Rights which is designed to offer guidance on exactly these sorts of cases.  What is to be done when one individual’s or organization’s rights conflict with – or appear to conflict with – those of another individual or organization?  While all rights are absolute and no rights are more important than others according to Ontario law, the courts have also recognized that rights may have limits in some situations where they substantially interfere with the rights of others.  The policy recommends mediation or some other form of alternative dispute resolution if parties cannot come to accommodation through other means.

New Zealand’s human rights policy also recommends mediation in the case of complaints, and a mediation was held between representatives of the gallery and Mr. Paul Young, the complainant.  The details of the mediation are confidential, so all I am able to report is that no decision was reached on the legality of the ban, and the gallery acknowledged that they should have, “worked harder to ensure accurate information about the work, its cost, content and intent, was available to the public earlier.”  (You can read their statement to the media here.)

While no one likes to be excluded, it must be admitted that being prevented from seeing a 3-minute film is a fairly minor violation of human rights on the scales of global injustice.  And I can’t imagine that the film will start a trend such that men need to fear that their access to art will be compromised.  The majority of artworld “gatekeepers” (critics, curators, gallery owners, collectors, etc.) are men and artists who want to be taken seriously will not make their work inaccessible to them.

Thinking about the controversy in New Zealand prompted me to think about some other ethical issues in the arts.  What is an artist’s responsibility to the people she depicts?  Did al-Maria inform her subjects that their wedding preparations would be the subject of a film that might be shown in an art gallery?  Did they give their permission?  Did she assure them that the film would not be seen by men, and if so, was this really something that she could guarantee?  Is there a tension between an artist offering something as a work and at the same time invoking her moral rights to exclude certain people from viewing it?

One final thought:  Displaying a work in a separate part of a gallery and restricting access to women and children is certainly one way of excluding certain viewers.  Are there less obvious ways in which viewers may be excluded by the artworld?  Do we give certain people the idea that “this is not for you” without saying so out loud?  Is the language used to discuss art exclusionary?  Some galleries (such as the Frick Collection and the Neue Galerie, both in New York City) deny access to children.  While I can see reasons for and against excluding children from art galleries, doing so makes it much more difficult for parents to visit.  High admission prices exclude those with limited disposable income.  None of these may warrant a complaint to the human rights commission, but they may be just as exclusionary as a “women only” exhibit.

Is it ever “too late” for mediation?

I was speaking with a potential client the other day.  He assured me that, as a reasonable person, he understood the many benefits of mediation.  But the conflict had gone on for so long, he said, that he feared it was “too late” for mediation.

His remark made me pause.  As mediators, we are eternally hopeful about the possibility of resolution.  (It would be hard to do this kind of work if we were not.)  Is there any point at which it is just “too late” for a negotiated agreement?

After thinking about this for a while, I realized that “is it too late?” is the wrong question.  Indeed, mediation may fail if it is attempted too soon as too late.  If a conflict is recent the parties may not yet be motivated enough to settle it.  In a long-standing dispute, the parties usually know exactly what the conflict has cost them and they may be eager to resolve things and move on.

Rather than ask when is it “too late” for mediation then, the right question to consider is, “under what conditions is mediation unlikely to be effective?”  I can think of at least two scenarios when reaching a mediated agreement is probably going to be particularly challenging.

First, mediation will be difficult if one (or both) of the parties has a strong psychological need for vindication.  Sometimes parties in a dispute feel it is important to be “right.”  (Of course, this is often combined with a desire to have the other party judged “wrong.”)  They want an authority figure – whether that is a judge, a member of the clergy, or the head of their family – to vindicate their version of events and proclaim their position the more compelling.

Second, mediation will be difficult if either (or both) parties disavow any responsibility for the conflict.  A party may see himself as a helpless victim who has done nothing to initiate or prolong the conflict.  If this is indeed correct – if we have a case of one-sided aggression rather than mutual hostility – then mediation is likely inappropriate.  The victimized party would be better off pursuing a rights-based approach.  While such one-sided conflicts exist, it is much more common that a conflict between two or more competent adults has been fed by contributions from both sides.  This does not mean, of course, that the contributions are necessarily equal.  Avoiding a conflict can prolong it, just as surely as can angry words.

Does the presence of either of these conditions mean that a mediated agreement is impossible?  I don’t think so.  A good mediator should be able to help parties reevaluate their priorities and question long-standing assumptions.  A mediator might help a party realize that an apology might be just as valuable (and more conducive to healing) than vindication by a third party.  A mediator can help both parties understand the origins of their conflict and accept shared responsibility.  These are just some of the ways in which mediation (and even good-hearted attempts at mediation) can empower parties and achieve more than the resolution of a conflict.

Cases that should have been Mediated: (3) The Sisters Upstairs and the New Hardwood Floors

Every now and then I hear about a conflict that wasn’t mediated but should have been.  Mediation would have saved the participants time, money and aggravation.  In this case, you do not even have to accept my judgement that the conflict should have been mediated.  Three Lord Justices of the England and Wales Court of Appeal stated that the dispute could have been resolved thorough mediation, without recourse to the legal system, for a fraction of the £140,134 (roughly $224,400 Cdn) that the disputants eventually spent.

The setting is “Eaton Mansions,” a tony block of flats in London, England.  The suit was brought by Mr. and Mrs. Faidi, who own and occupied Flat 6.  Sometime before 2006, the defendant, Elliot Corporation, acquired the lease for Flat 8, directly above the Faidis.  The new owners applied for and were given permission to carry out renovations, including removing the radiators, tearing up the wall-to-wall carpeting, putting a new radiant heating system in the floor, and installing new hardwood flooring.  They went through all of the proper procedures and got permission before doing the renovations.  In August 2010 the flat was leased to a couple with three daughters, aged 14, 12, and 5.

Sometime after the family moved in upstairs the Faidis brought a suit against the Elliot Corporation, charging that the day-to-day activities of their new neighbours caused noise and disturbed them.  They would be spared this disturbance, the claim argued, if the floors were covered by wall-to-wall carpets.  Indeed, each lease specifies that the floors (with the exception of the kitchen and bathroom) should be covered with carpet and underlay.  The defendant argued that when the renovation plans were approved the regulation about wall-to-wall carpeting became moot.  What would be the point of installing new hardwood floors, only to have them obscured by carpets?  Besides, the new heating system would not work effectively if the floors were carpeted.

Judge Freeland, who heard the original case, dismissed the Faidis’ claim.  He relied on expert testimony that the noise insulation installed when the new floors were constructed exceeded the minimum required by the building code.  The judge even went to the trouble of visiting Eaton Mansions to see the floor for himself.  The three judges who heard the appeal (Lord Justices Ward, Lloyd, and Jackson) concurred, finding that it would be “futile and absurd” to go to the expense of laying hardwood floors if they were destined to be covered up by carpets.  (You can read the full text of their judgment here.)

Litigation is adversarial by nature; outcomes are usually “all or nothing.”  Robert Pearce, the lawyer who presented the arguments for the Faidis’ appeal, proposed that a “moderate” amount of carpeting in flat 8 (say, in high traffic areas) would have absorbed some of the noise yet still allowed the residents to enjoy their new floors and benefit from the heating system.  The justices agreed that this would have been a sensible solution; however it was not one that the courts could impose.  The judges stressed that this outcome (strategically placed carpets) could easily have been achieved through mediation.  Justice Ward said it best:  “Not all neighbours are from hell. They may simply occupy the land of bigotry. There may be no escape from hell but the boundaries of bigotry can with tact be changed by the cutting edge of reasonableness skillfully applied by a trained mediator. Give and take is often better than all or nothing.”

Ironically, the Faidis no longer live in flat 6; their son lives there now.  And the family upstairs has also moved on.

Reproduced above:  The Daughters of Edward Darley Boit by John Singer Sargent (1882), currently in the Museum of Fine Arts, Boston.  Image from Wikimedia Commons.

Apprehension of Bias: When Should a Mediator Step Down?

I have been closely following the dispute between the British Columbia Teachers’ Federation (BCTF) and the BC provincial government over the appointment of Dr. Charles Jago as mediator. The teachers’ union and the government have been in disagreement for several months over wages and working conditions. The BCTF recently asked the B.C. Labour Relations Board to remove Dr. Jago because of an apprehension of bias.

One of the most important features of the mediation process is the mediator’s independence. Mediators are neutral parties, and not more or less sympathetic to any of the parties in a dispute. The ADR Institute of Canada’s “Model Code of Conduct for Mediators” is very clear on this point. Mediators are not supposed to have an interest in the outcome of the mediation process, or even in whether the parties reach a settlement at all. This is because mediation is meant to be a voluntary process in which the parties are self-determined. The success of mediation depends on the fact that people are more likely to respect agreements that they have entered into freely, and that they have had a hand in crafting.

The teachers charge that Dr. Jago’s links to the provincial government make it impossible for him to serve as an impartial mediator. According to the Globe and Mail, Dr. Jago told the union that he had agreed to serve as mediator in early February – before the BCTF was asked to put forth a list of acceptable mediators. (The union suggested two judges, neither of whom was available.) Dr. Jago also admitted to have seen and commented on the controversial new education bill before it was tabled in the legislature. These factors, coupled with Dr. Jago’s apparent lack of mediation experience, led the teachers’ union to suspect that the process as it has been structured is fundamentally flawed.

Dr. Jago, for his part, has refused to step down. As he wrote in a letter to the BCTF, “I assure you that I am impartial. From the outset, I have been clear that I will be fair and balanced in mediating this dispute.”

Dr. Jago’s unfortunate echo of the “Fox News” motto notwithstanding, he fails to show any realization that assurances of impartiality are beside the point. He may believe himself to be unbiased; he may in fact be completely impartial. But unless both parties in the dispute have confidence in his impartiality, it will be very difficult for him to succeed in mediating the dispute.

The Labour Relations Board has not yet ruled on the teachers’ request. (Indeed, it is not even clear that they have the jurisdiction to rule on it.) If the BC government is sincere in wanting a negotiated settlement to the dispute, they might do well to re-think the process of appointing a mediator. One possible strategy would be devise a list of three or more acceptable mediators and then invite the union to choose a mediator from that list.

Conflicts that Should have been Mediated: (2) The Elusive Parrot

Photo credit:  SantaRosa OLD SKOOL (via flickr)

Every now and then I hear about a conflict that wasn’t mediated but should have been.  Mediation would have saved the participants time, money and aggravation.

What is the cost of breaking a rule?  If you live in a condo in Ontario the cost can be very high indeed.  One of the provisions of Ontario’s Condominium Act is that condo owners who fight compliance applications can be obliged to pay the condominium board’s legal costs, as well as management fees and surveillance costs.  An owner who doesn’t pay up might find a lien placed on his unit.  The reason for this extraordinary provision (which is not enjoyed by individuals or corporations) is to discourage owners from pursuing frivolous lawsuits against boards.  After all, the legal costs for a condo board are shared by all owners, and it would not be fair for the corporation as a whole to suffer because of one litigious owner.  Condo owners who go to court over compliance issues have to be pretty confident that they have a strong case.

(Please note that I am not a lawyer and the above paragraph is not intended to be taken as legal advice!  If you are a condo owner in dispute with a board, please consult a lawyer, preferably one with experience in this area.)

The cost of breaking the “no pets” rule for their condo building almost cost Michael and Margarita Bazilinsky more than $40,000.  At some point, late in 2010, judging by squawks heard in the corridor, a parrot took up residence in the Bazilinskys’ unit.  Mr. Bazilinksy claims that he was merely parrot-sitting for a friend, and he supplied affidavits from three independent parties (a personal trainer, a real estate agent and an electrician) affirming that there was no parrot in the unit.  The board inspected his unit in early 2011 and found no evidence of a parrot.  They were convinced, however, that Bazilinskys had smuggled the parrot out of the unit for the day, and pointed to what they deemed “suspicious” footage on a surveillance camera of the Bazilinskys taking a covered box out of their residence.  In August 2011 Mr. Bazilinsky consented to an order to remove the elusive parrot, and to pay the board’s court costs of $3000.

The board then exercised their right under the Condominium Act to recover “actual additional costs” related to their eviction of the parrot.  They placed a lien on the Bazilinskys’ unit for $41,599.  Last month a judge ruled that this amount was excessive, and ordered Mr. Bazilinsky instead to pay $6500 of the board’s legal fees, less the $5000 he had to spent in court costs to bring the recent motion.

I learned about this case from an article in the Globe and Mail by Ian Merringer, who mentions that both parties claim that the other party had waived opportunities for mediation.  The Condominium Act includes a mediation process intended to resolve disputes before legal costs become excessive for either party.  From the brief description and the outline of facts presented in the article, it would seem that both parties had something to gain from an attempt to mediate.  Even if the Bazilinskys had eventually to find another home for the parrot, a mediated agreement to that effect would have cost significantly less than the legal costs they eventually incurred.  Mediation would have saved money and probably also time for the board.  And let’s not forget that the Bazilinskys and the board members are neighbours who are likely to see one another in the corridors and other public areas of the building.  I can’t imagine that their interactions now are anything but tense.  While they might never have been friends in the first place, listening to each other and working towards a mediated agreement might at least have given them the dignity of mutual respect.





Read about another Conflict that Should have been Mediated (curiously, also involving an animal.)

Negotiations and Trust

Mediators typically hope that the negotiations they facilitate will be “win-win.”  This means that each party, while not perhaps getting everything they want, will get something of value or importance – something that they would not necessarily have gained through a different kind of dispute resolution process.  Mediators are encouraged to think broadly and help parties create value.  To use a robust cliché, we try to help the parties think about how to make the pie bigger before we help them portion it out.

So I was saddened to read (in the February 2, 2012 issue of The New Yorker) of negotiations that could be described only as “lose-lose,” with the parties ending up worse off than they were before.  Ian Frazier’s article, “Out of the Bronx:  Private equity and the cookie factory” tells the story of what happened when Brynwood Partners bought the Stella D’oro cookie factory.  A quick summary:  The new owners announced that they would reduce salaries and benefits.  Workers went on strike.  Eleven months later, Brynwood partners was ordered to reinstate the strikers.  They complied, but soon after sold the factory to another company which closed it down and moved production to Ohio.  The strikers lost their jobs; Brynwood Partners reports losing “upward of seven or eight million dollars”; and the community lost the benefits that come with hosting a profitable business (not to mention, a nearby reliable source of yummy cookies).

Frazier’s article does not say much about the negotiation process between workers and the new owners, and I do not know whether mediators were involved, and if so, what style of mediation they favoured.  But one detail from his account stood out:  The strikers distrusted the new owners and did not believe that they were telling the truth about the company’s financial situation.  And without an accurate idea of the company’s profitability, they had no way to judge if the salaries they were offered were reasonable or exploitative.  (The merchandise mart that took over the factory building will pay lower wages than Brynwood had proposed in the rejected contract.)

Lack of mutual trust is often a factor by the time parties come to mediation.  How can mediators get parties to trust one another?  The answer may surprise you:  They cannot and should not try.  Personal trust has to be earned over time.  Mistrust can be a protective response, and people sometimes have very good reasons for not trusting one another.  A mediator risks losing credibility if she encourages people who are mistrustful of one another to ignore these feelings.

But thinking of “trust” as a personal attribute is only one way to think about it. There will always be specific individuals whom you may not trust, and others who may not trust you.  In many disputes, trust can be “out-sourced.”  That is, both parties can agree to put their confidence in a neutral evaluator.  For example, in a strike situation where parties have different views of the organization’s financial prospects, a mediator might suggest bringing in an independent accountant or valuation expert.  Family members whose disagreements over the value of an estate are complicated by personal mistrust might agree to seek out several assessments and work on the basis of their average.
When people mistrust one another – and even when that mistrust is entirely appropriate – they can often continue to work together and negotiate effectively. When disagreement over some factual matter is driving a dispute, parties who can out-source trust might be able to come to a “win-win” agreement after all.

More on Confidentiality in Mediation

Confidentiality is a basic principle of mediation.  But it seems that it is also one that mediators have to be vigilant about protecting.

Earlier this week I was fortunate to attend a talk at the ADR Institute of Ontario by David Bristow, a very respected lawyer, mediator and arbitrator.  Mr. Bristow told us about some recent important new cases with implications for ADR practitioners, and there was a lively discussion afterwards.  One of the cases he discussed, Hand v. the Walnut Valley Sailing Club, Kansas, caught my imagination

Mr. Hand had been a member of the Sailing Club for about 20 years, when the club made some changes to a storage area where sailboats and other equipment was kept.  Mr. Hand protested against these changes, saying that they were in violation of the Americans with Disabilities Act.  When the management of the Sailing Club refused to act on his protest, Mr. Hand wrote a letter to Governor Parkinson.  Learning of this letter, the management of the Club cancelled his membership; Mr. Hand’s response was to sue under the ADA.  The lawyers for the Club filed a motion that Mr. Hand’s claim be dismissed, on the ground that 1) he is not disabled; and 2) the Kansas laws protecting whistle-blowers apply only to employees.  The presiding judge, Sam A. Crow, agreed, and the case was dismissed.

A few months later, Mr. Hand visited the club on two occasions.  (I believe that he was the guest of a member).  The Club’s lawyers wrote to Mr. Hand’s lawyers, demanding that Mr. Hand not enter club premises.  Shortly after, Mr. Hand visited the Club again and refused to leave when he was asked to.  The Club filed a request with the court for a restraining order against Mr. Hand.  The motion was denied.

At some point in the dispute, the parties were ordered to mandatory mediation.  Within hours of the mediation session, Mr. Hand had sent a blow-by-blow account to all members of the Club, plus assorted friends, via email.  He revealed the amount of money the Club’s management offered him to settle the case, his own response to the offer, the number of lawyers representing the Club, what their fees might amount to, and what the mediator said and did.  In short, he revealed basically everything that happened in the course of the mediation.

The judge (Mr. Sam A. Crow, again) was not amused, to say the least.  He dismissed Mr. Hand’s entire action as a sanction for violating the confidentiality of the mediation process.  Although the case is not binding on the courts of Canada, Judge Crow’s reasons for dismissing the case may be relevant for confidential proceedings anywhere.  (The text of the decision may be found here.)  Briefly, the judge found that Mr. Hand’s revelations were highly prejudicial, interfered greatly with the judicial process, and that the leak of confidential information was done knowingly and willingly.  All of these factors lead him to sanction Mr. Hand as seriously as he did.

The case of Hand v. the Walnut Valley Sailing Club is thought-provoking for many reasons.  On the face of it, the relative triviality of the issues makes it precisely the kind of case that should be kept out of the court system.  Yet Mr. Hand clearly wanted a public vindication for himself and a public reckoning for the Club’s management.  In that respect, he was not a good candidate for mediation.  Could the mediator have done more to impress upon him that effective mediation requires confidentiality, and that keeping mum would be in his interest?  Did Mr. Hand’s lawyers warn him about the possible consequences of breaching confidentiality?  We have no way of knowing.

The Kansas case, despite its relatively low stakes and lack of global significance, provides a vivid illustration of how mediation can go wrong if the parties aren’t fully committed to the process and to respecting confidentiality.

“The Interrupters”: Lessons for Mediators

I had a chance last week to see The Interrupters – a new documentary about mediators in Chicago who work to reduce gang violence.  The film focuses on three “violence interrupters” who intervene in conflicts before they become violent.  All three work with the organization “CeaseFire,” founded by Gary Slutkin.  Slutkin, an epidemiologist at the University of Illinois in Chicago, believes that gang violence is a public health problem and that the spread of violence mimics the spread of disease.  The solution is similar in both cases:  Find those who are most infected and stop the infection at its source.

Critics have said that the film is “riveting” and I would have to agree.  It is fascinating to see, up-close and first-hand, the work done by these brave men and women.  The film also has some lessons for mediators of non-violent conflicts.

Words matter:  Ameena Matthews (in the image above), one of the mediators portrayed, tells us early in the film:  “They say ‘sticks and stones will break my bones but words will never hurt me’?  Words will get you killed.”  Even when violence is an unlikely possibility, choice of words – and the respect or disrespect that those words convey – can have a crucial effect on negotiations.  Mediators may need to coach clients about their choice of words and get them to reflect on the possible consequences of those choices.

Credibility is key:  The mediators portrayed in the film can be successful only if they are respected by the people they work among.  Their personal histories, experience with violence, and the force of personality they display all contribute to their credibility.  While “credibility” will mean something different for mediators working with a different clientele (say, Bay Street lawyers rather than youth-at-risk) its importance should not be underestimated.

Gain trust by demonstrating that you understand the client’s perspective:  In a powerful scene, Ameena and some other mediators intervene in a confrontation taking place right outside their offices.  We see her conversation with one of the young men she has just hustled away.  At first, it seems (incongruously) that she is praising him for almost getting involved in a violent conflict:  “You came to protect your family, right?  You came down because your sisters called you?”  We see the point of her strategy later.  The young man is prepared to listen to Ameena when she appeals to his protective impulses:  “How are you going to protect your family if you’re in jail?  How will they cope with that?”

Use the clients’ own values in getting them to think about their actions:  The violence interrupters are not neutral with respect to the outcome of their negotiations.  Their goal, in every case, is to reduce violence and save lives.  One of their techniques (familiar to mediators everywhere) is to get their clients to think about whether their actions are in harmony with the values they express.  We see mediator Cobe Williams working with two brothers who are members of rival gangs.  The brothers claim to love one another, but bicker with one another and with their mother until Cobe wonders (and we wonder) if he can make a breakthrough.  The turning point comes when he asks each brother in turn, “If they [the gang] was coming after your brother, would you protect him?”  When each brother sees the other answer in the affirmative, they seem to realize that their bickering and trash-talking and posturing are out of place.

Listening works:  Many of the people we see involved with CeaseFire are very charismatic.  Tio Hardiman, head of the violence interrupters program, and Ameena Matthews in particular, come across as very strong personalities and powerful, effective orators.  The film contains several splashy scenes of their work and the positive influence they have on others is evident.  Yet the film also contains quieter, yet equally powerful moments, when all the mediator seems to do is maintain his composure and listen, and then demonstrate that he has heard the speaker.  Several times, we see violent impulses drained away as the speaker realizes that his grievance has been heard and understood.