The Other Kind of Big Dog Energy

In cultural parlance, "big dog" refers to a highly aggressive, domineering style. This is not the type of "big dog energy" that I am talking about today. In fact, I wish to rebrand that style to "yappy dog energy" because it tends to be more show than substance.

In mediation, employing a "yappy dog" strategy rarely produces a sensible negotiation. Starting off (or staying) with aggressive positions can backfire by causing the other party to react, not respond, to your offer. This produces a dynamic in mediation that is exhausting for everyone - the millimetre by millimetre movement of two dug-in parties towards a mutually-acceptable number.

I recently advised a lawyer that rather than respond to an aggressive stance from opposing counsel, her clients should channel "big dog energy". What I meant by that was the energy of a calm, almost bored, larger dog in contrast to a dog racing around the room doing "zoomies." The big dog does not absorb the little dog's mood. The big dog is chilling and lets the little dog tire itself out.

So too can a party stay true to its negotiation strategy no matter what the other side does. Doing so sends the message: "We are not persuaded by your barking. We have a sensible view of what is reasonable and it won't change because you are loud or insistent or dramatic." The trick here is to be willing to offer reasonable numbers even if you hate the idea of "rewarding bad behaviour."

The big dog knows that it's only a matter of time before the yappy dog gets tired. It can chill. Just because you can bark loudly, it doesn't mean you have the biggest teeth.

Photo by amin rezvan on Unsplash

Happy Holidays from Kilby Mediation

I am so grateful to have had the opportunity to work together with you and look forward to more opportunities to mediate your commercial and employment cases and to partner with you in the important work of strengthening organizational culture.

Last year I had the privilege of mediating employment cases in the technology, security and industrial sectors, among others. I also worked on civil disputes in construction, shareholder oppression, healthcare, professional liability, and beyond. My mandates with organizations is growing in the area of culture review and improvement, and I have had the privilege of supporting employees and employers across Ontario in this important work. And of course, ever the extrovert, I always enjoy the chance to develop and deliver customized talks and workshops to a variety of workplaces.

Thank you for your ongoing support. To 2026 and peace!

PS: If you would like to keep up with me more frequently than the annual email, please follow me on LinkedIn (https://www.linkedin.com/in/christinekilby/).

Post City Recognition

For years I have eagerly flipped through my neighbourhood Post for tips on local businesses and trends. It so effectively combines polished reporting with local knowledge.

Imagine my surprise to learn that this year I had been selected by my peers for the 2025 Top Lawyers list. Reader, I was floored. Me? Voted in by my peers? What an incredible honour.

I don’t pretend to deserve the recognition nor the placement among such esteemed colleagues, but I am certainly grateful for it.

Thank you to those who voted for me, and congratulations to all who were recognized this year.

Change for Good

My daughter's class has been observing a Monarch butterfly metamorphosis. She is so excited to report on what they observe each day, and explains all the things she is learning. It reminds me that change of any kind is a miracle.

Change has a bad rap. The received wisdom is that it requires "management" and help to land, particularly in large organizations. Sometimes, though, change is deeply desired. The absence of change can breed disengagement, cynicism, and hurt.

When people feel that their input has been truly heard and received, they feel that it is valued. Sometimes that looks like making the suggested change, but not always.

Rather than dismissing suggestions, take time to better understand a suggestion, thank the contributor for it, and sincerely consider it. If the change cannot be made for whatever reason, the next thing you can do is follow up with the person who gave the suggestion and explain why. I have heard this countless times in my workplace conflict cases: tell me what happened to my feedback.

If things change because of something you said, it makes you feel appreciated. Full stop. You will offer input again when asked, because you trust it will be considered. If not, you will stop offering it, stop noticing where things can be improved, stop caring.

So, if you're dealing with disengagement in your team/institution, take a look at what has historically happened when you have received suggestions for change. Did the change happen? If not, was the reason why explained? Did people feel you heard them, even if you could not make the change they suggested? If you did not make the change, and you received another suggestion about it, did you take the hint?

Butterflies have no choice about their metamorphosis, but the results are stunning. What might happen if we chose change?

Photo by Joshua J. Cotten on Unsplash

Persuasion in Mediation Starts with Preparation

What does it mean to persuade, to advocate, in mediation?

Who are you persuading? The other party.

A mediation brief is a unique opportunity to reach a litigant directly and to lay out the reasons why they ought to seriously consider a negotiated resolution. It is a valuable opportunity to tie together all the threads of a long-running case.

That is why it is critical to deliver your brief with enough time for the other party(ies) to read it before the mediation, and make sure your client reads the other side's brief too. This allows everyone to arrive at mediation ready to explore the opportunities for settlement, rather than spending the first half of the mediation being outraged by one another's positions.

When drafting a mediation brief, think about the litigant on the other side. What might they need to hear? What new information has arisen since the litigation began? Is there evidence on the record that will be very helpful or harmful to one side's case (a hyperlink to a transcript reference is absolute gold here)?

Writing for a person with a personal stake in litigation is different than persuading a trier of fact. Accept that you probably will not convince the other side of your position. I rarely hear a party say "yes, they have a point, I see that I might be wrong" after hours of back and forth. Remember this quotation by Dale Carnegie: "Those convinced against their will are of the same opinion still." That is why a mediation brief should also contain some reference to what a party is willing to discuss, or do, for the purposes of finding a resolution.

If you can use your mediation brief to persuade the other side, while leaving the door open to compromise, you will be well on your way to successfully advocating at mediation.

Photo by Mikhail Nilov, pexels.com

Don't Give Me Space

We need each other.

Lately I have been watching space exploration-themed films and for me, the most jarring aspect of space is the isolation. Maybe it's my extroverted nature talking, but the loneliness of floating around in the vast darkness of outer space seems like a nightmare.

Perhaps I am in the minority in this view. As a result of COVID-19, we adjusted to isolation. Our cultural norms now make light of canceling plans at the last minute in favour of staying home on the sofa with a screening service and food delivery. Ghosting is a thing.

Unfortunately the byproducts of increased isolation include loneliness, which is a well-documented threat to our health, and a reduced ability to navigate interpersonal challenges. We are overwhelmed by the prospect of a conflict, and quickly unmoored by our differences. In the quest to escape discomfort, we simply avoid difficult conversations, or denigrate the people with whom we disagree. Our relationships become shallow, immature, and transactional.

We are not served by avoiding the hard work of human relationships. Avoidance is not a strategy. Conflict is inevitable, and we need to be able to manage it if we want to live in society with others (even a new society on the planet Mars!)

The alternative - pure isolation - is terrifying.

Vision Trumps Ego

The best antidote for ego is shared vision.

This week I had the honour of leading a client workplace culture workshop. What emerged from the discussion of "how to live out our culture" was the idea that if coworkers are aligned in purpose, they can do the hard work of maintaining their ideal culture.

Things like sacrificing one's personal comfort to have the hard conversations. Stepping in to help when the work is not strictly in your job description. Widening your perspective to account for the unique individuality of others in your workplace rather than focusing only on your work, your world, and your needs.

When an organization is aligned across the board about why it exists, who it serves and why it matters, there is less room for "me me me" perspectives or behaviours.

That does not mean that individuals' well-being and professional satisfaction should be steamrolled in the name of the organization's mandate. There is an important balance for leadership to strike.

I guess this is a longwinded way of saying "there is no 'i' in team". 🫣

The Worm in the Lollipop: Thoughts on Workplace Culture

What is the culture of your workplace? What behaviours are implicitly understood as "the way we treat each other"? Are they aligned with your values? Who sets the example?

My son has an on-again, off-again passion for Pokemon cards. He is presently a serious Pokemon card game player, making a weekly pilgrimage to play in a Pokemon league nearby.

I have noticed that this league has a culture of kindness and generosity. In particular, the adults who play the game are unfailingly kind to the younger players, often sharing strategy tips, comparing cards, and sometimes even giving them the tools they need to compete from their own collections.

Adults being kind to kids is not headline news, or it shouldn't be. What is interesting is how the younger players implicitly understand that kindness and generosity are the "way we behave" in this place, based on the example and conduct of the adults. So the kids often give each other advice or encouragement during matches. They celebrate each other's wins, even when those wins come at their own expense. In my son's case, he shared a spare card deck with a newer player so that the player would have a better chance of winning his very first game in the league and would know how to build his own card deck later on.

There is no poster on the wall with a set of rules or a code of conduct that says "play nice and be kind". It's just in the air - the "way we treat each other", borne out in small gestures and consistent behaviour, week after week. If someone was rude or unfair, it would stick out.

Ultimately, workplace culture is about making undesirable behaviour look out of place. In my workshops, I often describe it as the worm in the lollipop, with reference to a touristic novelty item you can buy in warmer climates. Given the image, I should probably find another analogy.

Dishwashers and Clouds: Perspectives on Conflict

Come with me on a journey from household conflict to a Joni Mitchell song.

Some of you will have visceral reactions to the photo below. Some will wonder what I’m talking about. The point is that there are many different ways to load a dishwasher.

In lawsuits there are many ways to present a case, and a few ways to win. Some cases are doomed on their facts and some on the law. Some cases are strong on both. Regardless, experienced lawyers know that nothing is ever totally certain.

Maybe your excellent facts can be interpreted differently, or maybe there’s a gap in the narrative that could plant a seed of doubt in the trier of fact’s mind. Maybe your authorities don’t land as well with someone who hasn’t lived with the case for three years. Or maybe the law changed between the claim issue date and now.

Enter mediation.

Mediators bring a perspective that can help you see things from another point of view. Whether it’s a fresh take or the impartial communication of the other side’s argument, the mediator can help you see both sides of your case, which will always help you assess your options.

These Joni Mitchell lyrics come to mind:

I’ve looked at life from both sides now
From win and lose and still somehow
It's life's illusions I recall
I really don't know life at all.

Certainty is the surest path to surprise. Come have your assumptions tested in mediation, and see what else is possible for your case!

Preparing to Receive Feedback

There is much ado about AI and the opportunities and threats it presents. One critical component of machine learning is the way that AI learns from feedback. It gets smarter every time we engage with it.

Humans also have an opportunity to learn from feedback, but often the process of seeking and receiving it leaves much to be desired. We are still human, after all, with feelings and biases and differing levels of comfort with difficult conversations. Nevertheless, I truly believe that feedback has a better chance of conveying useful information, and being received as such, if we apply some thought to it in advance. I will present a series of blog posts about feedback based on information I have gleaned on the topic to help make feedback more than another “F-word”.

In this post, I will focus on how to prepare yourself to receive feedback.

It’s important to know yourself and your likely reactions before you ask for feedback. This can help you manage your responses in the moment so that you can absorb as much information as possible. Preparation can also help you avoid destructive rumination afterwards because it puts what you have heard, and how you feel about it, in perspective.

Think of a time when you received feedback, either positive or negative. What were your physical and emotional reactions? Are these reactions generally consistent whenever you receive feedback, or a particular type of feedback? Notice any patterns, as these can help you better understand how you are feeling when you might otherwise feel overwhelmed or tuned out. Many of these habits may be subconscious.

For example:

• Does your mind filter out feedback you do not wish to hear and focus only on what you do wish to hear? Or single out the one negative point in an otherwise positive review?

• Does your pulse start racing when you receive constructive criticism?

• Do you shut down at the slightest hint of negative feedback and stop hearing what is being said?

• Do you recoil at the suggestion that you might be able to improve? Or conversely, abandon your skills and talents immediately?

• Do you fully accept negative feedback and berate yourself over your imperfections?

• Does your mind react defensively to any hint of criticism? Do you attack (internally) the feedback-giver to discredit their comments?

• How does positive feedback land with you? How long do you let it sit in your consciousness? Are you suspicious of it, fearing the “crap sandwich”?

If you know you might get upset in the moment, you need to prepare yourself to avoid having an emotional reaction during the conversation because crying during a feedback conversation is a great way to never have another one with that person.

Think now about when you like to receive feedback:

• Do you prefer it to be closely connected in time to the work or event in question?

• Do you appreciate having advance notice of these conversations?

• Would you prefer to have feedback delivered to you in written form, in advance of a discussion?

• Do you want public or private praise for a job well done?

• In your deepest heart of hearts, do you actually want to hear about things that could improve, or are you just hoping for affirmation?

Knowing why you are seeking feedback and what you truly hope to gain is important. If you tell someone you just want them to affirm your effort, that is at least honest. Having a specific question for the person you are asking for feedback is also helpful, as is seeking feedback on a timely basis. For example, “how have I been performing this year?” is a vague question which will get a vague answer. Try instead “what were two things about the report I drafted that you appreciated? What were two things I can do better next time?” Or “Did the ____ you asked me to prepare do the job you had intended? Was it useful? How could it have been more useful?” This is an easier question for a feedback-giver to answer, as it is not personal but rather speaks to how your efforts did or did not meet the mark. Remember too that looking backwards can yield a lot of self-blame and hopelessness. Looking forward, asking how something can be even better the next time, gives the other person a way to offer suggestions that are less about critiquing your performance and more about setting you up for success.

At the end of the day, ask for feedback only if you truly want it. It takes time and effort for people to provide feedback to you, and they want to know that their efforts are appreciated.