Mediator Marco Francesco Abruzzi-Lilliu goes further in depth with the process in this article. What are the common obstacles that a mediator must overcome, and what are the payoffs of a successful mediation?
What is a recent case of yours that highlights the power of mediation as opposed to court litigation?
I recently mediated an extremely contentious business dispute between two technology companies. Essentially, the owner of the purchasing company complained about quality and timing of the second shipment of a very specific product. I am leaving out that detail to preserve confidentiality. The dispute escalated, the vendor started a court action for breach of contract for lack of payment and the purchaser counter-sued.
After meeting with both sides privately on two occasions it became clear that the case was really about the purchasing company being in financial difficulty and not wanting to be bound to receive a full order of the product every quarter for the next five years. The conflict was not about quality or timing at all. Interestingly, the vendor was conversely worried about meeting its quotas on all its pre-COVID contracts due to employee and some component issues due to COVID shutdowns.
After the first day of mediation we hammered out a settlement that included lowering the amount of the quarterly delivery by two thirds and a payment plan that worked within both of their budgets. There was a lot of ego, resentment and anger to get through in that case before a settlement could be arrived at: two very stubborn and extremely talented individuals, I must say. This case also highlights what we call the three tensions of negotiation and how mediation can help manage these tensions.
Can you tell us more about these tensions?
Certainly. One of these tensions – probably the most impactful one – is between ‘creating value’ and ‘distributing value’. Typically, unless parties disclose their interests, resources, what they might have to trade and what their concerns are, conflicts are rarely resolved in a beneficial way. However, the dilemma is that the naïve disclosure of too much information by one side (if it is not reciprocated) can lead to exploitation with respect to the distributive aspect of the negotiated settlement. As a consequence of this, parties choose not to disclose very much and engage instead in hard bargaining. Negotiations often fail for this reason, even though there were a lot of potential deals to be made that would have made the parties better off.
Typically, unless parties disclose their interests, resources, what they might have to trade and what their concerns are, conflicts are rarely resolved in a beneficial way.
This is where a mediator can really help – by improving the communication between the parties, learning what their underlying interests are and helping them articulate them in a way that helps them avoid the risks of exploitation but creates more information.
What is the typical process of mediation?
After filing out a brief intake form, my assistant arranges individual private meetings with each party to the contract separately (the interview stage). After this initial round of interviews, I review everything provided by both sides and sometimes request further information or documents over email. Afterwards, a second round of meetings occurs where I can canvass the issues in greater detail, having the benefit of the information and inputs from the first round of interviews.
After the interview stage, I spend some time developing a strategy and approach to best address the dynamics and particulars of the case. I break down the issues across a spectrum from ‘most contentious’ to ‘common ground or agreement’ and a date is booked for the first meeting together, whether virtually or in person. Generally, the phases for the in-person meeting are as follows.
First is getting out each side’s experience to create a shared understanding of the whole situation. Secondly, unless this is a workplace dispute, we engage in a thorough legal analysis of the strengths and weaknesses of each side’s case. This phase is done so that each side can perform a reasonable risk analysis of proceeding to court instead of settling the case early. With this in mind, we move onto the third phase: disclosure and analysis of each party’s interests. Essentially, during this phase, we try to drill down to what everyone wants and why they want it. The next phase entails joint problem-solving and negotiation to see if we can find a solution together that leaves the parties in a better position than going to court or maintaining the status quo in workplace or corporate conflict. Lastly, we document the agreement reached by the parties or adjourn to a later date.
What is the most challenging part of the mediation process?
This really depends on the personalities, the stakes and the history of the people involved. Sometimes the most challenging part is just getting the parties to the table for a productive meeting, other times it is working through the negative emotions enough to engage in productive dialogue and negotiations.
How do you take the emotion out of the situation and keep the clients focused on an outcome?
Interestingly, while people might wish to take the emotion out, the unfortunate truth is that until people really feel heard and understood in terms of their feelings and the issues they care about, they will not be ready or prepared to move on and look at solutions. Also, in the later stages of the mediation, disclosure of feelings can dramatically deepen shared ground and sometimes supply testimony to the common experience of the conflict. Not only can this help people understand the other or understand the impact that their behaviour has had upon them, but the linking of emotions to future solutions can also powerfully inform and support the participants in working out just what it could be like to enjoy a brighter and happier future.
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Finally, the whole mediation experience can be cemented by sharing typically difficult emotions that participants deal with during this unique experience. Sometimes this can mark a watershed moment in their relationship and is often a turning point in the mediation itself. This is especially true for workplace, corporate and family business mediations where the parties need to continue to work together afterwards.
What types of cases do you enjoy most?
I actually enjoy most if not all of my cases; whether large and small, I like having both on my docket. Sometimes the most gratifying conflicts for me are the ones where it only takes a couple of hours to resolve the issues between the parties. That being said, complex and technical multi-day mediations, while all-consuming, leave me with the greatest sense of accomplishment when resolved. I find cases involving the technology, resource and energy sectors quite interesting – as well as mediating any business dispute, really. Currently, I am quite enjoying workplace mediations as well as conflicts between either businesses, managers within the same business, or workplace teams that want to preserve and improve their working relationships.
What does the future hold for your mediation practice?
Having recently relocated my home to Victoria from Vancouver last year, I would like to continue to grow my Victoria/Vancouver Island practice so it becomes at least 50% of my client base, with the rest of my clients mostly in Vancouver and the Lower Mainland. I have been leading a complex workplace harassment investigation for a local municipal government and have been really enjoying the work. I am actively pursuing more of that kind of work, workplace mediations and investigations, with local governments, police and healthcare institutions and medium to large businesses. I am also helping a few organisations with team dynamics and setting up systems to resolve conflict or potential conflicts early, which I quite enjoy.
Accordance Dispute Resolution LLP
Law Chambers Building, #204-45 Bastion Square, Victoria, British Columbia, Canada
Tel: +1 250-532-3422
Marco is an award-winning Harvard-trained mediator focused on resolving business, corporate, workplace and indigenous disputes. Prior to specialising in alternative dispute resolution, Marco worked in a boutique Vancouver firm as a litigation lawyer for 11 years and for the Department of Justice Canada as Crown Counsel and Federal Prosecutor within the business & regulatory, aboriginal litigation, public prosecutions, and national security & defence sections. He is also a graduate of the prestigious Harvard Program on Negotiation and Leadership (2020).
Accordance is a premiere dispute resolution firm based in Victoria and Vancouver, with clients across British Columbia, Canada. They focus extensively on mediation, negotiation facilitation, conflict consulting and workplace investigations/assessments. They are a proud Industry Partner of the Chartered Professionals in Human Resources of British Columbia & Yukon.
