Q. Mtre Miller, I can see that you have a registered trade-mark on Place au dialogue and in English you use the phrase “Room for Dialogue™”. What is the difference?
A. As you can probably appreciate, Madame Therrien, the difference is language and the difficulty is translation. I hope that they convey an equivalence of meaning since the culture of dialogue is common to both the English-speaking and French-speaking people. I believe that the culture of dialogue could be universal, but I have not made a survey of all cultures. I do know, however, for instance, that dialogue has an important place in Aboriginal cultures.
Q. You have just used the expression “culture of dialogue”. Indeed, does such a culture exist or are you trying to create one?
A. Yes, I think that the culture does exist, but that it is often overshadowed by the dominant “culture of debate”. In a given case, it could be desirable to move from one culture to another and maybe back again to the original culture. For instance, the matter may start out in court where the culture of debate is the norm, and move from there into settlement discussions, the culture of dialogue. Or a matter could start out in settlement discussions and yet a court adjudication on a particular question might become necessary for the dialogue to continue to settlement or to resolution. There is actually an interplay or tension between the two cultures at all relevant and material times. For me, mediation is simply the bridge from one culture to another.
Q. What distinction do you make between a “settlement” and a “resolution”?
A. Some people use the two words interchangeably. I use the word “settlement” to refer to a partial answer to a problem (the problem could recur in another form at another moment in time) and the word “resolution” to mean a complete answer to a problem (the parties have changed their way of doing business together). A resolution is often thought of as transformative whereas a settlement is thought of as dealing with particular matters in a specific way.
How would you define “dialogue” in the context of Place au Dialogue? Does it differ from the meaning given by dictionaries? In other words, what can people expect if they engage in a dialogue under your guidance?
A. Results. Their interests will be advanced and I underline, their rights will be respected. Sometimes, if not most of the time, clients bring to me a deep-rooted conflict. I remember that once an insurance company brought me a case labelling it ‘Mission Impossible’ which would take some kind of miracle to resolve. Well, the case was successfully resolved. Resolution of difficult matters usually requires a sustained and systematic effort over a period of time. As to the distinction between rights and interests, as an example one could say that it’s nice to have a right to a house but it would even be nicer to have a house. Interests correlate with legitimate expectations as rights correlate with duties.
Q. With a bit of research, I was able to establish that your firm Interlex obtained its Certificate of Registration on Place au dialogue on July 23, 2001. Does this date correspond to the setting up of Place au dialogue?
A. Interlex Group of Canada became active in the field of dispute resolution on August 1, 1990 at 3680 de la Montagne. It has now been in continuous operation for a period of 15 years. From the beginning, the notion of dialogue was present in an embryonic form and has been continuously developed and refined through experience of resolving specific cases to the point where in 1999 we applied for certification of Place au dialogue.
Q. It seems to me that Place au dialogue and Room for Dialogue have two connotations. Could you explain?
A. Yes. The two connotations are the physical and the metaphysical, the tangible and the intangible, the corporeal and incorporeal, the site and the process, methodology, know-how, way, like the Court House and the Code of Civil Procedure, like the game board and the rules of the game. The two connotations are the answers to two questions: 1) where do we go to resolve matters? and 2) what do we do and how do we proceed to resolve matters once we’re there?
Q. How is Place au dialogue/Room for Dialogue funded?
A. Place au dialogue/Room for Dialogue operates on a professional basis. Naturally, there’s rent to pay for the premises and the know-how is proprietary. Fees for services rendered are paid by clients. There can be several modes of fee arrangement. One party may finance the costs subject to being reimbursed by the other party his (its/her) share of the costs at some point in the process, usually at the point of settlement as part of the adjustments that are then made. This fee arrangement seems to be appropriate and works well when there is a disparity between the financial resources of the parties and the parties wish to retain the notion that they are each paying ultimately an equal share of the costs. Of course, there are many cases involving more than two parties. There are many other ways to finance dialogue.
Q. Do you work on an hourly fee basis? If so, what is it?
A. The fee arrangements tend towards an hourly fee basis. My current fees are in the range of $200 - $250 an hour. I have been able to maintain my fees at this level for 15 years because of my control of costs.
Q. You said before that there are many ways to finance dialogue. Let’s suppose that a person or group of persons with a worthy cause came to see you for help but could not afford your fees, would you still accept the mandate?
A. Yes. The other party or parties would be expected to finance the cost, subject to an adjustment at the conclusion as I stated previously. I proactively invite “the other side(s)” to the table, that is to say to participate in a particular, well-defined and fair process to which they would contribute since each process is custom-made for the case. While there are important sources of funds available for litigation, there are as yet at the present time in Canada relatively few such sources available for working things out, such as seed money to get a suitable process started. I would encourage private foundations to come forward to fund out-of-court solutions for public interest matters.
Q. When I took a general search on Internet on “Place au dialogue”, I was referred mainly to documents having to do with serious societal and political issues and conflicts. In newspapers, the word “dialogue” is used in two ways. The first way is wishful thinking, for example, one wonders if Benedict XVI will be able to dialogue with the heads of other religious institutions or again André Pratte, chief editorialist of La Presse wishes for a new dialogue between francophones and anglophones in Quebec. The second way makes reference to desperate situations in the world where even war has not been able to resolve conflict. So I wonder: is that what you do in your Place au dialogue/Room for Dialogue, try to resolve some of these deep-rooted conflicts?
A. Yes. Plato’s dialogues is one of the determinants of our culture; we see in them citizens concerned with the best course of action and not merely citizens engaged in philosophic considerations or chatting. I give dialogue structure. Dialogue can bring us to the root of our identity and thus to experience one of the key ideas associated with dialogue. Let’s work it out as opposed to fight it out or flee from it. Incidentally, war does not resolve conflict. It postpones and defers its resolution to another time and place. War may have the effect of removing someone who was blocking resolution and for that reason may be necessary in certain very limited circumstances.
Q. Am I to conclude that you take on assignments or accept mandates that can involve real danger, either because they would bring you to a country where serious conflict exists or even here in Canada, less so in Canada, but here too we have a number of serious “difficulties”?
A. Assignments or mandates include an element of risk and therefore of danger, especially if the assignment or mandate is to effect change, to move from one system to another system. Therefore, one must contain or manage the risk and make the process as friendly as possible by proceeding incrementally, a small step at a time, with an opportunity for retreat or at least for reflection before the next step. That being said, I would certainly leave matters in countries where a state of belligerency exists in the capable hands of the United Nations and Canada’s Peacekeepers.
Q. Do people with a problem always come to see you at your Place au dialogue/Room for Dialogue?
A. Each difficulty has an object which can be physical and tangible such as a work of art, a home, an office building, or a workplace, or the object can be intangible, such as one’s reputation which is going to be associated with a tangible such as a book or a film. To deal with the difficulty, it’s sometimes best to go “there” or to get away from “there” to a sanctuary that evokes the desired values. The place or room may be for co-ordination or for resolution. The place or room can travel. It can follow a circuit. It can go to the scene. It can go to a garden, a golf course, an art gallery, a construction site. It can be a kitchen, a restaurant, for a time. One matter concerned a model forest; I went to that forest. Another matter brought me to many historic sites in the Province of Quebec. Still another matter earned me lots of Aeroplan points as I travelled to and held sessions in Alberta, Saskatchewan, British Columbia, Washington State and Utah. I remember an adventure on Bearskin Airlines and a rough crossing of a northern lake from the town site to the fishing camp. It was then that I gained an appreciation of the engineers’ skill in designing egg containers – not one egg broke – our breakfast was assured at the fishing camp.
Q. What do you mean by the word “difficulty”? Are you using a euphemism? Do you mean a dispute, a conflict of some sort? If so, did you ever go to a garden, a golf course, an art gallery, etc. to resolve a dispute?
A. I mean what the ordinary person would mean, including when he or she would use the word “difficulty” to mean a dispute, a conflict of some sort. Businessmen might say that they have “a problem” or “a real difficulty”, something they don’t think they can sort out themselves, probably having made a real effort to find a solution. Clients might find themselves in a litigious situation, that is to say where legal proceedings have been threatened, have been taken, or are at some stage of the trial process. As for the other part of your question, the answer is not yet, but each could make an excellent place or room for resolution. For instance, an art gallery would evoke fairness since fairness is an aesthetic, an appeal to the senses, including common sense.
Q. Among the various possible places where dispute resolution could take place according to you, you mentioned an art gallery. I don’t want to sound disrespectful, Mr. Miller, but to my knowledge one cannot hold a meeting in an art gallery, be it a meeting based on dialogue rather than argument or debate; almost total silence is expected of visitors. How realistic is that?
A. An art gallery is not a library. There are constant guided tours or visits of schoolchildren or other social groups. Art galleries have adjacent rooms for conversation and an auditorium for films and other presentations. Then there is the part of the gallery that the public doesn’t normally see – the work of conservation, cataloguing and studying of the art. An art gallery is a busy, lively place. Of course, art inspires, informs and allows us to see in a different way, an aid to the reframing process that often plays an important role in conflict resolution and to the aspiration of excellence.
Q. Let’s talk about confidentiality. It seems to me that litigation lawyers, for instance, have a big advantage over mediators in this respect. They can blow their own horn: they can let it be known in the media that they obtained a huge settlement or a resounding victory for this person or that company. This publicity will bring them similar files. Is confidentiality not a big hindrance in your chosen field? If I ask you to tell me for whom you’ve been doing dispute resolution work in the last 15 years, will your answer not be: sorry, I am bound by confidentiality?
A. Yes, let’s talk about confidentiality. What is it? To what does it refer? There are two meanings. The first is that information obtained for one purpose cannot be used for another purpose. For example, information obtained to settle a matter out of court cannot be used to litigate such matter or any other matter in court. Let’s call this confidence ‘the public policy’ privilege because public policy favours settlement. Such a privilege cannot be waived. The second is that information given to the conflict resolver must remain with the conflict resolver. This information is the subject of a particular privilege because of the existence of a relationship such as a lawyer–client and can be waived by the client. Thus the tendency is towards confidentiality. There are some exceptions such as when the public itself is a party. Thus as a matter of policy, we do not discuss our cases. Cases have been the subject of case studies, changing names, etc. I must always work within certain limits and according to certain principles which define what I do and the service that I provide.
Q. I understand that you cannot disclose the names of your clients. So I will try to get more information by asking about the nature of the mandates that you have handled over the last 15 years.
A. The nature of the mandates covers the entire spectrum of imaginable subject matters. I describe my practice as commercial and administrative. My mandates tend to fall into the following broad categories: family business transfers and estate plans; disagreements among shareholders, among heirs, between franchisor and franchisee, between neighbours, between common law spouses who are in business together; Aboriginal – Government; private sector relationships and commercial claims such as construction and insurance, but I have also handled matters concerning golf, hockey, films and the arts. Essentially, my approaches are economic and include both spheres of the economy, the market and the gift.
Q. The gift economy? What do you mean? It seems to me that there’s no free lunch in this world. Even philanthropists expect something in return for their generous gifts, be it their name on a university building, etc.
A. I mean the sphere of economic activity that involves the exchange known as gift. The essence of gift is reciprocity so that a gift involves not only giving but also receiving and accepting. This sphere of the economy has always been there but its existence has been overshadowed by the market sphere of the economy. The gift sphere of the economy is prevalent in family relations, government programs, and business. Gift can be seen in a strategic alliance. Gift gives rise to enforceable legitimate expectations. The best known modern example of the gift economy is the Marshall Plan to rebuild Western European economies after the destruction caused by World War II. There are of course in law the special contract of sale and the special contract of gift. I am referring to the underlying and associated economic activity and to the ethic of fair trade and to the ethic of generosity that are often factors in the resolution of disputes and conflicts.
Q. I know there are lots of disputes in the hockey world, so I am not surprised that you could have been called to settle one of these matters. But golf? What matter could have concerned golf? Can you tell me more?
A. It’s amazing what can become the subject of litigation. As I recall, the parties were a local golf club and one of its members. It seems that the member in question disputed the club’s rules and regulations to the point where the club became exasperated and took steps to expel the member, who then sued. I helped the parties to work something out. Since I did not hear from them again, I presume that the resolution worked. It’s one of those instances where an ounce of prevention might have gone a long way. It’s sometimes in the manner of responding to a stimulus. We have a choice of response in any given situation. I sometimes wish I would have had the opportunity to prevent the difficulties from developing into disputes.
Q. What was your most demanding mandate?
A. Mandates are generally very demanding because the matter is often complex, i.e. it has many components or aspects. The most demanding is when a party’s attitude is dogmatic, i.e. the product of a particular dogma, making that party impervious to empathy or to logic. One has then to go into the dogma in order to re-direct it, infiltrate it so to speak, so as to be able to converse with the person in terms relevant to that person’s dogma. Sometimes, the dogmatist is not a party, but supporting a party morally or financially. In such cases, the level of difficulty increases five-fold.
Q. What was the easiest or shortest mandate that you can remember?
A. The easiest mandates are when the parties are the most competent and their experience and expertise and the experience and expertise of their advisors are accessible and available. It is hard to pick one case because I have enjoyed a lot of co-operation. The duration of a mandate is reflected by the depth of the difficulty, e.g. the difference between a tooth filling and a root canal. Sometimes, the mere beginning of a process can be enough to break the logjam when the parties learn that each wants to settle the matter. The shortest that I remember was 24 hours: an information session in the morning, an exploratory exchange of pertinent and relevant information and a canvassing of practical options in the afternoon, a night for reflection, and a decision-making session the following morning: adopting an option and making provisions for its implementation.
Q. And the most interesting mandate?
A. The most interesting mandates are when I have helped parties out of their difficulties and into a productive relationship and have been well paid for my efforts. It is satisfying to see a family or a business get back on track and relationships of government, aboriginal peoples, industry and communities blossom and flower. There’s something about the colour of green, the symbol of hope, the colour of gardens and golf courses.
Q. I infer from your answer that you have handled matters where parties were not able to reach an amicable or out-of-court resolution. What factors would prevent the successful resolution of a dispute?
A. The key factor that could prevent and has on occasion prevented the successful resolution of a dispute is when one or more of the parties do not participate in the process directly and instead are represented by their advisors. I remember one case where one party participated directly with its advisors – it’s important that they participate too – and the other party was represented by its advisors. The latter wound up paying four times as much at trial without any compensating good will, the deal that was on the table during the process. It’s important that management take a hands-on approach. Sometimes, one or more of the parties may have unrealistic expectations about what they might receive as an award from an adjudicator. In such cases where there is a potential for an alternative result, I try to examine, compare and contrast the two potential results, taking into account all relevant factors such as risk and costs.
Q. Mr. Miller, do you have any heroes?
© Interlex Group of Canada Inc.