2% Truth

That is the antidote to defensiveness, according to my training in ORSC relationship systems coaching. It prevents us from dismissing wholesale the things we would rather not hear.

It's a powerful tool, especially in our current climate of mistrust, "fake news", and internet-enabled expertise.

The basic concept is that even in a statement that seems 100% wrong, 2% might be true. If so, your task is to unearth that truth. If 2% might be true, which 2% is that? This allows for a more honest engagement with an opposing viewpoint, and opens the door to reflection, learning, and even growth. My ORSC classmate Kelvin F. Alfaro writes about it beautifully in a post linked in the comments.

I remember arguing a mock appeal as a law student before a panel of real sitting judges (shout-out to all those on the bench who volunteer for these things. They make such an impression!) One judge made a comment during my submissions about my drinking water from a plastic bottle. It was unexpected and a little destabilizing. I was all set to collapse under the weight of this critique, but something in me realized that this judge was actually trying to help me. Her comment was an honest -and pointed- hint to use a glass to avoid drawing attention away from my arguments. I did not yet know about the "2% truth" rule, but I used it anyway, and left with gratitude to that judge rather than bitterness.

Hard feedback, inelegant criticism, and blunt comments are hard to hear. It is easy to dismiss them out of hand, or to malign the speaker as a way of avoiding their potential truth. The 2% truth rule holds us accountable by forcing us to ask, "what in this comment might be worth grappling with?"

Echo chambers can be a lot of fun, but at the end of the day, they're full of noise. We only grow when we engage with opposing viewpoints, even when they are hard to hear.

Photo by charlesdeluvio on Unsplash

Lessons Learned at the Winkler Forum

I love meeting new people and getting to know more about them. It is a wonderful perk of being a mediator. Extroverts get it.

Imagine my delight then, to be tapped as an interviewer for the prestigious International Academy of Mediators/Osgoode Professional Development Winkler Institute conference held October 1, "Critical Moments in Mediation."

I spoke with Angela J. Reddock-Wright, an esteemed colleague and powerhouse in the Los Angeles mediator community, about what shifts outcomes in mediation. Here's what Angela taught us all:

- showing up authentically when you are a mediator is brave, honest, and preserves energy. - tapping into the various facets of your identity and experience can help you build connection with the parties, and sincere connection is critical to putting people at ease. This is especially important in the sensitive situations that Angela regularly encounters as a mediator of cases involving race/sex discrimination and harassment allegations. - we often think of immutable characteristics when we use the term "diversity", but diversity also applies to our experiences. Angela has a richly diverse career and personal background that allows her to bridge multiple worlds and channel her influence in ways that assist parties to understand their options. - mediator ego is not a thing. When something does not land well, we pivot.

It was a joy to get to know Angela better in the course of preparing for this conference, and a privilege to be included among the faculty. I have already applied so much of what Angela shared to my own practice.

My deep gratitude to the Winkler Institute, the IAM, and conference chairs Alicia Kuin and J. Jay Rudolph for inviting me to be part of an excellent and thought-provoking conference.

I will post more insights from that day, but you can rewatch it on November 19.

Thanks to Jennifer Egsgard and Alicia Kuin for the photos!

Moose Exist

"You should have left hours ago!"

This was a comment from a well-meaning local on a recent holiday. She was worried I might run into a moose while driving back to my lodging at dusk. The time of day, plus an oncoming storm, were not ideal driving conditions. But the suggestion to leave earlier was obviously not going to happen.

Solutions are clear in hindsight. Parties to a mediation can get bogged down by what should have happened or what they wish had been done differently in their case. The challenge is to focus on what is possible now, notwithstanding the past.

Being constrained by the limits of space and time, I asked the well-intentioned local for advice about how to navigate the trip back as safely as possible. The ride was uneventful (in moose terms, anyway. The recommended road was more potholes than asphalt!), and we made it back safely.

Litigation often arises from undesirable circumstances. Both the dispute and the conduct of a lawsuit can fuel an endless loop of grievances.

Mediation is most effective when litigants can release the past and focus on the future. When possibilities, ideal or not, are fully explored until a workable (not perfect) solution is found.

Moose exist. We drive anyway.

Photo by Jerry Geraldi on Pexels

Familiarity Breeds Contempt, Not Understanding

Sometimes familiarity breeds contempt. Sometimes it prevents it.

We humans love narrative. We tell ourselves stories about the things happening around us. When we don't have sufficient information, we often take a mental shortcut through Assumption Alley or Projection Parkway. This leads to stories about events or people that are inaccurate and often destructive. "They are incompetent," "They are trying to grind us down", etc.

The antidote? Get some facts.

If you do not know opposing counsel and assume they are unreasonable because of their correspondence or litigation style, find an opportunity to chat with them a little, not about the case. Approach them at a conference or social event. Suggest grabbing a tea/boba/iced capp. Learn more about how they actually are as a person before you let your interpretation carry you away.

When you know a person, even a little, it helps you interact with them as more than a caricature or archetype. It can help you adjust your assumptions and answer your questions. It breeds a little more trust and fluidity in the daily interactions that are required for the job.

Photo by EH Kim: https://lnkd.in/gEsjCMv4

Mediation can Help

Two articles in today’s newspaper highlight the importance of conflict resolution skills, and the consequences of their absence.

One tells the story of an airline passenger who was removed from an airplane after she alleged abuse by another passenger.

The other makes a case for road safety, arguing that the “bikes vs. cars” narrative is false and destructive.

In both examples, my mediator brain thinks about how slowing down, zooming out, and finding common ground could have served these disputes better than making one party the “enemy”.

I struggle to get out of the “right vs. wrong” mindset when I am in conflict personally. I think that’s probably normal. That’s what makes a neutral third party so invaluable - they can see both sides, hear the valid points each party makes, and de-escalate the tension.

Mediation can help in many circumstances, not only lawsuits. That’s why I work with organizations, conduct facilitated discussions, and deliver custom workshops to give people the skills to navigate conflict. If you think this might be useful for you, please drop me a line!

Common Ground

Apparently mushrooms are genetically more similar to humans than they are to plants. That might be surprising news for a Thursday.

It just goes to show you: common ground may exist between the unlikeliest of pairs.

You may encounter offers in mediation that feel like they’re way out of the ballpark, maybe even in another sporting venue altogether. But if mushrooms are our cousins, anything is possible.

Hang in there, negotiators. The deal is out there.

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.

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