22 Apr What’s In My Mediator’s Toolbox?
Let me share about the mediation tools—and traits—I bring to the table as a mediator across different practice areas.
It’s no coincidence that I chose the toolbox metaphor. One of my favorite pastimes is walking around my house with a screwdriver, hunting for loose screws to tighten. I suppose I aspire to put things in their proper place.
When I get the call for a mediation, I bring my full toolbox. I never know exactly which tools, or what size tool, I’ll need, so I come prepared for anything.
Part of me believes that the person fixing your furnace is probably watching a YouTube video to figure it out since there are so many makes and models. Likewise, no credible mediator would claim to know everything. The truth is, law is humbling. Almost daily, new trial results or motion decisions reshape how the law applies to specific facts. The best a mediator can do is stay current with case law.
PREPARATION
When I receive your written material, know that I read every page—whether it’s 2 pages or 200. Once I’ve reviewed the briefs, I’ll do further research (not on Youtube but on Canlii) to ensure I’m fully prepared to test the validity of arguments and positions taken at mediation. So, in whatever level of detail you prefer, let me know what’s important for me to understand about your case.
CONFIDENTIALITY AND CREATING THE RIGHT ENVIRONMENT
Opening the door and inviting a mediator into your dispute is a big decision. I take that responsibility seriously. In meeting with lawyers and their clients, confidentiality is always at the forefront. My goal is to help people assess risk, so I can’t promise that our mediation will always feel “comfortable.” But I do aim to create an environment where participants feel safe enough to share information and make informed decisions. For newcomers to mediation or those who tend to keep things close to the vest, I apply the mediator’s version of WD-40 – charm to disarm.
FLEXIBILITY AND PROCESS
Flexibility is key in accessing hard-to-reach places. As a facilitator and custodian of the process, I spend time before mediation considering how we might approach the issues. But it’s not rigid. I remain responsive to the needs of the parties and offer suggestions as necessary. Want to do a joint session? Absolutely—I’ll set the tone. Prefer to start in caucus (private meetings)? No problem – I’m ready to dive in.
REDIRECTING BY USING QUESTIONS
At times, issues in a case may be lingering beneath the surface. The best way to uncover and address these issues is by asking well-crafted questions. For example, what evidence will you use to prove your theory of the case? How are the courts reacting to this issue in recent decisions or on similar facts? We all know that the best way to get information from people is to ask open-ended questions.
COMMITMENT AND TENACITY
I have a red seal in tenacity. I’ll be the last person to give up on the process or the people involved. When conversations get heated, I bring a healthy dose of calm. When people get combative, I’m there to deflect or absorb those punches. When people become a flight risk, I keep them grounded. In essence, my job is to keep people talking long enough to explore whether resolution is possible.
KNOWING WHEN TO END DISCUSSIONS AND FOLLOW UP
The final tool in my kit is knowing when to let people walk away without a resolution. I liken it to duct tape—it might not solve everything, but it can help hold things together temporarily. A mediator can facilitate the process and help parties examine the issues, but a resolution may not happen on the day of mediation. That’s why I always follow up. I believe that productive discussions during mediation can smooth the bumpy path of litigation and help parties reach a resolution down the road.
FINAL THOUGHTS
I’ve been mediating in the areas of personal injury, insurance, and disability since 2017. In the past 1.5 years, I’ve expanded my practice to include employment mediation, focusing on wrongful dismissal and workplace disputes.
I recognize that each type of mediation comes with its own culture and nuance but with a full toolbox, I feel confident in my ability to add value to every case I mediate. I might not always reach for the same tools, but I have them at my disposal when needed.
As a bonus item in my toolkit, I’m pleased to announce the launch of Diversum™: Innovative Mediation Methods. Diversum™ is a diverse suite of four tailored mediation methods offered by Cooper Mediation designed to meet the unique needs of parties in a dispute. It includes Standard Mediation, Mediation 2.0, Prediation, and Speediation. Find out more about Diversum™.
ABOUT THE AUTHOR
Logan Cooper joined the Cooper Mediation team in November 2017 and devotes 100% of her professional time to mediating at roster-rates. She has mediated over 500 cases in the areas of personal injury, property damage, employment, long-term disability and other insurance-related disputes. She has handled global mediations, cases with multiple parties, self-represented litigants and cases with complicated technical and interpersonal challenges.
Logan can be reached at logan@coopermediation.ca or (416) 726-1344.