University Education and the Mediating Mind
Remarks by Chief Justice Warren K. Winkler
Wednesday, June 15, 2011
Mister Chancellor, Mister President, Dean Holloway, faculty, graduands, family members, honoured guests.
It is my great privilege to be present at and to enjoy this wonderful and meaningful ceremony. To each of the candidates about to receive their coveted degrees, I express my sincere congratulations and my hope that every day of your life will be as rich and satisfying as this day.
I am deeply moved by the special honour the University of Western Ontario has seen fit to bestow upon me today.
Judges, you know, are expected to be scrupulously fair. We pride ourselves in deciding disputes fairly and dispassionately, without sympathy or bias. But I know you will forgive me when I tell you, quite directly, that I love the University of Western Ontario, an institution with which I have a longstanding personal connection.
Both of my daughters are proud graduates of UWO. Their experiences have conditioned my view as well, so that I find myself returning to the campus as often as possible and whenever I am asked.
Last year, for example, I was invited to participate in the Distinguished Speakers Series at the University’s Faculty of Law. The topic was mediation in the justice system. As you have heard, mediation is a process I have been immersed in and have cared about for much of my professional life.
I hope you won’t mind if I use this splendid occasion today to elaborate upon the subject briefly, and to suggest to you how, in my view, mediation processes can be valuably employed to enrich global culture and the value of a university education.
In other words, what I wish to suggest is that mediation need not be thought of as relevant only to the profession and practice of law. In law, of course, mediation is a term that describes the practice of settling legal disputes not through trials or similar adversarial proceedings, but through agreement or reconciliation.
But why confine the process to the realm of law?
Steeped in the law though I may be, I do not consider it a great leap of logic to think of mediation more ecumenically as the general art and action of bridge-building, of overcoming variances, and of ultimately privileging agreements over differences.
When I was here last year, I confined my remarks on mediation to the justice system and argued that the mediative process in law can no longer be viewed as an ancillary service, that our civil justice system will fail unless mediation becomes an integral part of that system.
Today, I wish to go a step further, and to suggest to you that the importance of mediation extends far, far beyond the formal justice system. As time and events, and the dizzying advances in cyberspace, bring whole continents and cultures into instant uneasy contact, hitherto unknown differences and conflicts burst into light, all in real time. Mediation offers a strategic mechanism for coping with these challenges, and for resolving them.
I don’t wish to claim too much. Mediation will not suffice for all purposes, and, with or without it, the world will continue to be a dangerous place. Individuals and nations bent on violence will continue to hold the power to threaten all or parts of the planet.
Still, the potential for mediation to forge consensus out of difference is vast, and as yet largely unappreciated.
Elsewhere, I have written and spoken about the first mediator I ever met. In time, he became a powerful influence in my life. When I first began to appear in front of him in my capacity as a young lawyer, my clients were wary of him. He looked somewhat like a cartoon figure, everything just slightly off kilter, slightly askew. And he talked a lot like he looked. “Good morning,” he would say to the parties, “I’ve come to resolve your indifferences.”
But it took this wise man no time at all to teach me, by both word and manner, that the primary skill needed for successful mediation is nothing other than the ability to listen, to listen long and patiently enough, to understand and respect other people’s perspectives and interests.
He also taught me that the mediator does not simply accept the perspectives of one or the other of the parties. The mediator must have the capacity and the courage to think differently from the parties. The reason is that the parties are often trapped within their own paradigms, their own boxes, unable to see a way out of the darkness of their combative positions.
The skilful mediator must never be in the box; the mediator must think, and manoeuvre, outside of it. There, in the fresh light of day, the mediator will discover a healing solution, a new idea, a third way, which can provide the basis for a consensus. Like the blacksmith who heats and shapes objects of iron, the mediator forges the parties’ positions and interests, and forms them into something new, a consensual solution of mutual benefit.
Where is one most likely to learn the skill set of the mediator? The simple and direct answer is: right here, in the university setting. Here is where students have the greatest and best opportunity to learn about and to respect different and competing perspectives, and here is where students hone the ability to think critically and creatively.
There are those in every generation who try to disparage the value of a university education. Put another way, they fail to attribute to it the full value it deserves. They will contend that university education is too general, or too esoteric, or too devoid of facts and practicality. My parents were not of this mind set. I am not of this mind set either, and will never be.
Another of my mentors and wisdom teachers was my uncle, Dr. Carl A. Winkler, who once held the position of vice-principal at McGill University, although for me he was always just my beloved uncle Carl. I remember that, even when I was a very young law student, my uncle would invite me to occasional lunches which he used to organize for some of his colleagues at McGill. Invariably, these colleagues were drawn from all sorts of academic disciplines.
I learned that, even over lunch, interdisciplinary discourse is a good thing, highlighting differences, but also, and equally, identifying correspondences and compatibilities.
The interdisciplinary character of the university energizes it, and creates the very atmosphere required for the highest learning, the learning that breeds imagination, understanding, empathy and wisdom. My Uncle Carl recognized this, cherishing it from his experience as a student at Oxford, and he passed it on to me.
As I stand here before the students and professors of the School of Graduate and Postdoctoral Studies and the Faculty of Social Science, it occurs to me that I may be preaching to the choir. You know better than I -- you who make up the diverse fields of study comprising the social sciences -- how often and to what wonderful effect your disciplines overlap, interconnect, and nourish each other.
The social sciences are founded upon and recognize the complexity, diversity and stratification of our societies. The social sciences, including law, remind us that we at once shape and are shaped by our history, and by our religious, cultural and social norms. The social sciences are a brilliant prism enabling us to see the world, and ourselves.
But we learn and grow in a host of other ways as well. In marvelling at the array of disciplines taught not only within the Faculty of Social Sciences but also more generally within the School of Graduate and Postdoctoral Studies, it strikes me that each field of study has one abiding feature in common with all the rest; it challenges those gifted students who dare to venture in to exercise their imaginations in gaining mastery over subjects which may at first appear remote, foreign or strange.
The cultivation of the intellect is surely central to the mission of this great university. And the cultivation of the intellect requires, among other things, critical thinking, reasoned dialogue, and pure research. Each of these pursuits in turn challenges students and professors alike to have the wisdom and the humility to question their own current assumptions and understandings, and to be willing to test them against other competing perspectives.
The habit of mind thus devoutly to be sought for is that of the mediator, the mediating mind.
As you begin now to develop your own separate career paths, you will no doubt become more and more specialized as you go. Some of you are likely well on your way to a specialization.
This is an important and valuable step in your professional journey. We cannot do without specialists. But I urge you, too, to keep to a balanced life, to hold fast to interests and pursuits beyond your areas of specialization. If you keep all things in perspective you will come to see the joy and peace that comes, for example, from leisurely reading or listening to music, or from participating in hobbies, civic activities, and charitable causes. Or perhaps even having a faithful dog!
Although our work worlds increasingly require more and more of our time and greater and greater levels of specialization, my earnest hope and request is that you will make room in the helter-skelter of your busy lives to engage with people and think about matters outside your area of expertise. If you accomplish this task, you will forever retain your ability to see things from multiple perspectives, and you will begin to build bridges across differences. In other words, you will have all that it takes to be a good mediator.
You have worked hard to reach this point. You have made real sacrifices, and no doubt so have members of your family. It is a defining moment, a proud moment. It calls for celebration, and excitement, and relief.
Having achieved this glorious milestone, may your lives be forever enriched.
I wish you the best of luck, and I thank you for giving me the honour of being able to speak to you today.