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You say you want a resolution? A mediator reflects and regrets

|Written By Mitchell Rose
You say you want a resolution? A mediator reflects and regrets

New Year’s resolutions are made to be broken — or at least revisited — even if they are not, technically, “resolutions.”

One year ago, I wrote an article called Post-New Year’s goal-utions of a mediator in which I argued that goals — or “goal-utions” — are superior to resolutions. I then set out a list of semi-serious goal-utions for 2016.

Re-reading my article the other day for the first time since last January, I was shocked by how much has changed, and how much remains the same. I now wonder if I was naïve about the actual differences between resolutions, goals and hybrid goal-utions.

My original 2016 article appears below in italics, along with my 2017 comments in bold beneath each paragraph:

January 8, 2016:

It has been one week since we rang in 2016. Resolutions were made and many have already been broken. New gym membership cards enthusiastically obtained on January 2nd have been conveniently misplaced so as not to irritate or embarrass the well-intentioned cardholder (who has not visited the gym since January 3rd). The “lost” card is a victim of the commonly made and quickly dropped resolution to “get in shape.” Similar resolutions include “being nicer,” “swearing less” and “tolerating people you can’t stand.”

Jan. 4, 2017: I never lost my gym membership card — because I never purchased one.

Motivation and behaviour experts tell us that making resolutions is pointless and we are just setting ourselves up for failure. What we need to do instead is to set realistic, attainable goals — the success of which can be easily measured. However, to me, goal setting — even if more effective — does not feel or sound the same as making resolutions. Resolutions are grand pronouncements and, frankly, people like making and hearing them, otherwise we would stop.  As a mediator, I also like the word “resolution” since mediation is a form of alternative dispute resolution . . . It’s just that New Year’s resolutions aren’t particularly useful.

So far, I agree with myself. This is a good thing considering my job is to try to get other people to agree.

Therefore, I suggest we all adopt (if you would like — there’s no pressure) the “Post-New Year’s goal-ution”. The goal-ution combines the best of resolutions and goals. It is a sweeping pronouncement, but it is made only after the euphoria of New Year’s Day has expired. It is lofty, yet it is attainable. It is also measurable, as people can easily provide feedback about success or failure.

The goal-ution is win-win (or, at least, lose-lose). What else would you expect from a mediator?

Now, things get interesting:

Please allow me to share with you my mediator goal-utions for the remainder of 2016:

Be it goal-solved that, henceforth, I shall:

1. Avoid using the following expressions at mediation:

•    “But, surely...” (which only leads to the predictable response: “Don’t call me Shirley”);

This was challenging. Also, few people under the age of 40 know the “Shirley” reference. This took away all of the fun of saying “But, surely.”

•    “It’s an accommodation, not a compromise” (people see through that one);

I now believe that it is impossible to avoid the word “compromise.”  Further, a refusal to compromise is overrated and over-romanticized.

•    “What would Trump do?” (After all, I am Canadian. As a mediator, I am also neutral).

This was intended as light humour and not an endorsement. It’s not even something I actually asked.

Anyway, how could I have known early last January what would follow? Sometimes, even non-serious goals or resolutions take on unintended interpretations — and the future, like legal proceedings, is unpredictable (i.e., see this 2016 piece I wrote).

However, I believe that mediators should not have serious or humorous political discussions at mediations. They are better off building trust and credibility by discussing something less controversial than politics — like almost anything else.

2. Ensure that I consistently eat a little something during my full-day mediations. While in 2015 I resolved to eat at my mediations, I recognize that I should have made it a goal-ution in order to ensure stricter compliance.

I now pack protein bars and apples. Sometimes, I even remember to eat them.

3.  Stop replying to questions about what I think a judge would do if the case went to trial by stating “it depends.” My use of this phrase is as a result of the fact that I am also a practising lawyer, and lawyers are fond of answering questions with ”it depends.” This is even a valid answer to “what time is it?”

Instead, my goal-ution as a mediator is to adopt alternative answers such as ”there are many things a judge might do” or ”nobody knows how a particular judge on a particular day might rule on a particular case.” However, a mediator should always refrain from sarcastically retorting “why don’t you go to trial and find out what a judge will do?” This could be viewed as counter-productive in some circles.

I am proud that I never told a mediation participant to go to trial.

4. Avoid telling too many war-stories during my mediations. By “war-stories” I mean recounting past experiences, on a strictly anonymous basis, for educational purposes to help a party in conflict make a wise decision. Telling multiple war-stories should be the exclusive domain of the parties’ lawyers as lawyers love telling them. In any event, anything so bellicose may not be useful when trying to make peace.

I limited the stories and I now think of them as “peace stories.” Like Seinfeld’s George Constanza, or the Stoics, I discovered the value of doing the opposite of my normal inclination.

5. Call my mother twice a week. While this appears to have little to do with mediation, it will make my mother happy.

This may have been a tad ambitious (Sorry, Mom). Rest assured, I will work on this one. Some resolutions (or whatever you might call them) are worth keeping.

Mitchell Rose is a mediator and lawyer with Stancer Gossin Rose LLP in Toronto. He believes in the art of skilled advocacy in both the courtroom and the boardroom. Mitchell can be reached at