Mediation with a Difference: Accepting “No” in Dispute Resolution

Remarks by the Honourable Warren K. Winkler Chief Justice of Ontario on the occasion of his receipt of an Honorary Doctor of Laws from Osgoode Hall Law School

June 14, 2012, Osgoode Hall Law School, York University

Chancellor McMurtry, President Shoukri, Dean Sossin, Faculty and Staff, Graduates and Parents, Ladies and Gentlemen.

It is a great honour to be here with you today.  I feel very privileged to join you for this beautiful and meaningful celebration.

To those of you about to receive your degrees, I express my sincere congratulations to you and your families.  You have worked hard to achieve this goal, and today is a day to relax and rejoice in your achievements.

Fifty years ago today, I stood on a stage not dissimilar from this one, and in a building about 20 kilometres south of here — a building where I am now privileged to work every day — I received my law degree from this very same law school.  I am so pleased to be back here at Osgoode Hall Law School as you begin a journey I started a half-century ago.

I have continued to maintain a very close relationship with Osgoode.  It is an institution to which I am greatly indebted and which continues to be one of the greatest law schools in the world.  I plan to continue this relationship well into the future, and I hope you do as well.

I am deeply moved by the special honour this Law School has seen fit to bestow upon me today. I am also tremendously honoured and humbled that Osgoode has seen fit to establish in my name the Winkler Chair and Winkler Institute in Dispute Resolution.  Dispute resolution is an area of practice and research I care deeply about, and I look forward to maintaining my affiliation with Osgoode through my connection to this Institute.   

As you have heard, I have devoted much of my professional life to the practice of mediation as a means of dispute resolution.

Mediation used to be thought of as an exercise or activity tangential to or beyond the bounds of traditional legal practice. Hence the term “alternate dispute resolution”; the service offered was alternate, because it was meant to be provided outside the ordinary practice of law by individuals who were not necessarily even lawyers.  All that is changed, changed utterly.

Mediation is now not merely central to our justice system, but also quickly becoming the preferred and predominant form of dispute resolution within and well beyond our justice system.

The skills of a good mediator include the ability to appreciate different perspectives and to amicably dissipate or resolve disputes.  These are valuable assets in all forms of human interaction.

As the world grows smaller and more immediate, the value of mediators increases. Our patterns of travel, communication and commerce bring us into contact with more people than ever previously imaginable.  We are called upon to confront, and to navigate safe passage, through all manner of relationships with individuals having vastly different values, experiences, and perspectives. The challenges and complications provide great potential, but also great risk.  Within this context, the art of mediating across differences takes on increasing significance.

However, as valuable as mediation is, I am aware that it can also have its limitations.  Mediation, as it is often practiced, can create intense pressure to settle, and for some this can have a stifling and even silencing effect.  Parties may be concerned that they will be brow-beaten into making agreements against their will or better judgment.  Such individuals might refuse mediation or participate only reluctantly.

A good mediator will be alive to these legitimate concerns and address them openly and sympathetically. It may even be necessary to go further than this and question whether agreement should even be sought.

We are a society that values, or ought to value, differences and diversity.  Should we, therefore, always be striving for resolutions that require consensus?

In the few moments available to me, I would like to explore a different approach to mediation which I have been considering lately; a style of mediation which does not always seek agreement.

As a young lawyer, I often appeared before the same mediator.  He was the first mediator I ever met, and possibly the best.  He wore ill-fitted suits and looked and talked somewhat like a cartoon character, everything slightly off kilter. He would begin each session with the same phrase:  “Good morning, I’ve come to resolve your indifferences.” 

Lawyers and clients were never sure what to make of his opening statement.  Was the mediator’s reference to “indifferences” intentional or unintentional?  Or was it an unfortunate, unintentional misapplication of a word, or perhaps a sly joke?  We were never sure.  All we knew or thought we knew at the time was that we were there before him to settle “differences” not “indifferences”.

Looking back now, though, through time’s prism, I have come to see the wisdom in the mediator’s words.  He understood, with a greater clarity than all the rest of us, that we do not always need to resolve differences.  There are times when it is far more important to resolve our indifferences to each other.  I think of marriage, a perfect or not so perfect union of two.  Many people forge long and productive marital relationships because they learn to respect each other, though they may have many differences.  Differences and disagreements are or may be made healthy, but indifference – by which I mean here the inability or refusal to appreciate the needs, thoughts and sentiments of other people – is toxic.

So it is, I think, that we need a new paradigm of mediation, one that allows for disagreement without regarding it as a sign of failure.  I propose that sometimes it may be productive to begin a mediation session by explicitly abandoning the goal of agreement.  We can reach understanding without reaching agreement. Rather than “getting to yes”, sometimes we should be content to be “accepting no.”

You may be wondering what possible value this could have?  The simple but profoundly important answer is that there is value, even wisdom, in receiving, understanding, and tolerating other and competing perspectives, even if you do not agree with them. Understanding requires insight and empathy; it cannot help, therefore, but remove hostility and rancour. It takes the dispute out of a disagreement; it removes the “in” from indifference.  When that happens, parties will find that they can continue their relationships, even where agreement is not possible, or even desirable.

It has become increasingly fashionable to seek consensus at all costs. From coa-parkedrdrooms to community centres, consensus-based decision-making has become increasingly popular.  But consensus is valuable only to the extent that it is achievable.  Where it is achievable, but only on the basis of the position of the least flexible participant, we still must ask if that is a laudable goal.

Where consensus is not achievable, it should not be our aim, and it should not necessarily signal the end of the mediating effort.  Sometimes we need to state our disagreements, appreciate our differences, and move on.

Agreement that is not wilful is neither respectful nor productive.  There is a saying that is attributed to many different writers, but appears to be derived from the writings of Samuel Butler:   “A man convinced against his will is of the same opinion still.”  Agreements that are not freely chosen are not secure agreements.

As lawyers, whatever your area or areas of practice, dispute resolution will be part of your profession.  After 50 years of practicing this craft, I have come to think that understanding is often more important than agreement; and that indifference is more troublesome than difference. As you move into your professional lives you will no doubt develop your own style of addressing disputes.  However, as you do so, I suggest you remember that disagreement itself should not be feared.

I wish you all the best in your future pursuits.  I thank you for honouring me today and also for giving me the chance to join you in your celebration.