By Sean Simmons
In Ontario, a current problem in the legal community is the lack of diversity among mediators. The Ontario Bar Association Working Group on Neutral Diversity released a report this year which conveyed that efforts to increase diversity in alternative dispute resolution (“ADR”) have largely gone unaddressed, and mediators often do not reflect the populations they serve.[1] The report indicated that in Ontario, 70 percent of mediators hired in the last year were men and 94 percent were white.[2] These statistics are troubling because a mediator may not be exposed to, have lived experience of, or be in a position to understand all the underlying interests which will affect each party of the mediation.[3] Parties may come to a mediation with vastly different life experiences, including mistreatment or being marginalized based on race, gender, or other characteristics.[4] Moreover, parties often will not meet on a level playing field and may not be equal in terms of power and access to information.[5] There may be no single solution for addressing problems which have been created due to the lack of diversity among mediators. However, a mediator in approaching ADR can still use preventative measures to ensure the process is inclusive and equitable as possible.
First, a mediator needs to build ongoing cultural awareness and to assess whether they are culturally competent to facilitate an ADR process. To do this, a mediator will need to have an open mind, curiosity, respect for the parties, and a willingness to relinquish assumptions which negatively impact participants.[6] Further, a mediator needs to be aware of their own uniqueness among the participants. Uniqueness includes expression of emotion, body language, style of communication, and comfort with conflict.[7] By being self-reflective, the mediator will have a better understanding of how their own behaviour can affect a participant’s interaction during the mediation, and in turn, they will be able to adapt the process to suit the needs of all participants.[8] Each mediation may not require the same level of cultural competency. The level of cultural competency needed to facilitate an equitable and inclusive process will vary based on the complexity of interests and diversity among the participants, responding to what the participants determine they need.[9]
Second, a mediator needs to build rapport with the participants during the pre-mediation consultation phase.[10] The mediator during this phase needs to understand how logistical considerations (i.e., who will be attending, how much time to reserve, and how the mediation fee will be allocated) impact issues related to diversity and tailor conditions of the mediation to make it a more equitable process.[11] Mediators should speak to the parties asking about their background and be comfortable exploring any diversity concerns or preferences a party may have.[12] For example, in a family mediation, meeting separately with each party can uncover power dynamics and cultural differences that underlie the dispute.[13]
Last, mediators, should consider whether a co-mediation model is necessary for making the process equitable and inclusive. There could be many stakeholder interests revolving around the dispute between the parties. These interests may include class, family status, LGBTQ2S people, race, and gender.[14] Two mediators or more may be advisable for mediation because it may be difficult based on the diversity and complexity of the mediation for a single mediator to account for all possible interests at stake.[15] More importantly, the choice of a co-mediation structure reflects to the participants that the mediators are attempting to be as inclusive as possible and are trying their best to understand and be empathetic to all of the diverse interests which are related to the dispute.[16]
Overall, issues related to lack of diversity in Ontario mediations will likely not be achieved through a quick-fix solution. However, regardless of a mediator’s background, they can take preventative measures in order to ensure the process is as inclusive and equitable as possible. Mediation is meant to be a participant-focused process, and it is important all mediation participants feel empowered and experience recognition of their interests.
[1] Ontario Bar Association, “OBA Releases Report on Lack of Diversity in Mediation and Arbitration in Ontario” (29 March 2022), online: Ontario Bar Association <https://www.oba.org/News-Media/Press-Releases/2022/OBA-Releases-Report-on-Lack-of-Diversity-in-Mediat>.
[2] OBA Working Group on Neutral Diversity, “Neutral Diversity in Ontario” (2022) at 8, online (pdf): <https://www.oba.org/CMSPages/GetFile.aspx?guid=feddadcd-980f-4e83-86c9-ff8ecbfba32d>.
[3] Ibid at 2.
[4] David Hoffman & Katherine Triantafillou, Mediation: A Practice Guide for Mediators, Lawyers, and Other Professionals, (Boston: Massachusetts Continuing Legal Education, 2013) at 23.
[5] Ibid.
[6] Ibid at 244-245.
[7] Ibid at 245.
[8] Ibid at 245.
[9] Vilendrer,”The Importance of Diversity in Mediation” (2022), online: Vilendrer <https://www.vilendrerlaw.com/the-importance-of-diversity-in-mediation/>.
[10] Supra note 4, at 246-248.
[11] Supra note 4, at 246.
[12] Supra note 4, at 246.
[13] Supra note 4, at 246.
[14] Supra note 4, at 231.
[15] The Neighbourhood Group, “Osgoode Mediation Clinic Co-Mediation Training”, (Toronto: York University, 2022).
[16] Ibid.