Specific Legal Issues

May, 5 2022 Published by Toronto and Area Chapter - By Marc Bhalla

It's Easy Being Green at Mediation

From the Spring 2022 issue of CCI Toronto Condovoice Magazine, Volume 26, Issue Number 3

"I'm green and it'll do fine It's beautiful, and I think it's what I want to be" – Kermit the Frog

When parties involved in a condominium dispute attempt mediation, a common part of the preparation process includes each of them creating written materials that offer background as to their perspective on the matter and desired outcomes. Often called "Mediation Briefs", a long running joke in mediation circles is that they are usually anything but brief. On some occasions, page limits come into play but, even then, attachments of email strings, letters, logs, and so on, quickly result in hundreds of pages per party.

In my experience, lengthy preparation materials can be helpful… so long as they are focused and organized! A mediator can better understand the context not only of the conflict but the relationships of those involved in it. How long key players in a condo conf lict have known one another and the nature of their exchanges help mediators consider how to set up the process in a way that best offers a chance of succeeding with mediation (and help mediators understand what participants consider success to be).

While there is something to be said for the benefits of hundreds of pages of focused and organized mediation materials, there is a downside when such are printed. Look no further than The Lorax to appreciate the price paid by the trees.

In fact, when mediation is viewed with a green lens, there are a number of opportunities to make the process more environmentally friendly. Some are as simple as getting with the times, leaving the fax machine behind, and embracing electronic documents over hardcopies. Others require a little more effort but are ultimately easy to incorporate into the dispute resolution process, particularly as many condominium communities are already embracing them.

On February 28, 2020, English mediator, John Sturrock, considered greener mediation in a post for the Kluwer Mediation Blog. Sturrock suggested that mediation can be better for the planet than "carbon intensive" litigation and launched The World Mediators Alliance on Climate Change. Mediators around the world were invited to take a pledge to be more environmentally attuned in their work. 540 mediators have signed The Mediators Green Pledge. Presented in 15 different languages, the pledge asks the profession to…

1. Mediate online. Mediators who have signed the pledge have committed to encouraging online mediation, where feasible, over in-person gatherings. This has been a trend in recent years - one that many involved in condo mediation have found more comfortable. The idea is not to require that every mediation take place online but instead to consider if online mediation is appropriate for each dispute. As it is more convenient, particularly when there are many participants - as is often the case in the context of a condominium conflict - this is something that should be considered especially today given the pandemic.

2. Communicate electronically. Mediators who have signed the pledge have committed to embracing electronic communication methods over more environmentally taxing communication approaches. Appreciating that even electronic communications are carbon emitting, they also agree to try to avoid unnecessary or overly lengthy communications. Embracing this involves staying focused and efficient, traits that help make the mediation process more effective. While many involved in condominium conflict could improve on the word count of their communications, electronic communication has long been embraced by the condominium community.

3. Travel with the environment in mind. Mediators who have signed the pledge have committed to avoid flying for mediation, when possible. This travel consideration extends to selecting the most environmentally friendly venue when mediation takes place in-person and trying to minimize the total amount of travel required for all participating in the process. The concept is not to exclude important mediation participants but to add an environmental consideration to mediation planning. It comes down to assessing what is necessary and appropriate in the circumstance and can include finding space on-site at a condominium for an in-person mediation.

4. Practice with the environment in mind. This includes avoiding singleuse plastics, not wasting energy and being mindful of the carbon footprint of the mediator's practice. Mediators who have signed the pledge have committed to being mindful of the environmental impact of their work and to take steps to offset and reduce it. Many condominiums have also been doing this, particularly as we are experiencing the effects of climate change close to home – such as with the flooding that occurred in British Columbia last year.

5. Spread the word. Mediators who have signed the pledge have committed to help make others aware of greener mediation options, in hope of making more environmentally friendly mediations the norm. Hence, this article (even if you are reading it in print).

While, to some, this may seem like a tree-hugging endeavour, it is the responsible thing to do. Environmental consideration can be given in a manner that does not materially impact the mediation process or what can be accomplished through it.

In no way is including environmental consideration in mediation designed to take the focus of the process away from the people addressing a condominium dispute or from catering the process to best accommodate those experiencing conflict. It is about appreciating the impact of one's actions by keeping the environment in mind. Nothing in the pledge prevents mediators from conducting mediation in-person, working with hard copy materials or travelling as needed for clients. It simply asks for consideration of what is necessary and if there are ways that the process can comfortably come together which minimize negative environmental impact. This type of consideration is one everyone is being asked to embrace in this day and age.

For the condominium community at large, such consideration is not new. Condominium living offers the prospect of more environmentally friendly living than traditional housing models. The first Earth Hour event was held in March 2007. Since many condominium communities have participated by turning off their lights for an hour to demonstrate their support for climate action and have taken action beyond demonstration to do their part for the cause. This is not to say that we should mediate in the dark. It simply asks for consideration of the impact of how we do things beyond ourselves. As a goal of mediation is often to consider what conflicting parties have in common, why can that not include jointly caring about the environment? You do not have to be Greta Thunberg to make a difference.

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