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In most businesses, including the business of commercial fishing, disputes are inevitable. Examples of such disputes in the commercial fishing industry would include misunderstandings with partners, fallings out with crewmembers, dissatisfaction with repair work and claims for damage to nets. Unlike persons in the underworld who often have to resort to violence to resolve their disputes, fishermen are fortunate to have a well developed court system at their disposal. However, while courts are far superior to violence as a means of dispute resolution, in more recent times our court system has been criticized for being unduly expensive and too adversarial. As a result, people are now looking at alternate means of dispute resolution, one of the most successful being mediation.
Unlike arbitration, where someone with specialized expertise is hired to act like a judge and make a decision for the parties, a mediator does not impose settlements. In a mediation, the parties meet face to face with the assistance of an impartial mediator trained in conflict resolution. The mediator guides the process and is responsible for setting and maintaining basic ground rules such as confidentiality and a non confrontational atmosphere. Each party has the opportunity to tell his story without interruption and then the mediator helps the parties to clarify the issues and understand each other’s needs and concerns. Mediators do not take sides or attempt to impose solutions. With the assistance of the mediator, the parties themselves explore the possible solutions with the final decision being made by the parties in a way that best meets the needs of all those involved.
Mediators generally take what is called an interest based approach to dispute resolution as opposed to a positional approach. The theory is that if parties can acknowledge the views and interests of their opponents and be personally involved in solving the dispute, any resolution of the dispute that they are able to achieve is likely to be more long lasting.
Historically, mediation has been most used in the areas of labour and family disputes because its non adversarial approach is well suited to situations where there is an on-going relationship between the parties which will have to be maintained after the dispute has been resolved. For example in court disputes involving custody of children, in order for one parent to establish that he or she is the best person to have custody it is often necessary to try to prove that the other parent is a bad parent with specific examples from the past. As a consequence, court cases often end up being very adversarial and thus damaging to an already strained relationship. In the end, after a court has awarded custody to one parent, it is often very difficult for the parties to communicate with each other while arranging for visits by the non-custodial parent. In contrast, with the use of mediation custody and visitation issues can often be resolved without the need to get involved in these mud slinging type matches.
In more recent years, mediation has expanded beyond its historical roots to many different kinds of disputes including the resolution of civil litigation involving construction disputes, insurance claims, and personal injury claims. In addition to cases where there is an ongoing relationship at stake, other criteria for a successful mediation are as follows: (1) the parties, or either of them, do not prefer a more adversarial or formal approach; (2) the issues are reasonably limited; (3) the parties enter the process with a large measure of consent; (4) the level of anger or hostility is not extreme; and (5) the parties are prepared to recognize the mediator as objective and impartial.
Mediation is also often useful in resolving disputes involving smaller sums of money, as it can often be used early in the litigation process so as to minimize legal fees.
In the fishing industry, fishermen have ongoing relationships with a number of parties such as fish processors, crew members, repairers, insurers, and business partners. In addition, since many fishing businesses are one person operations involving only one vessel, the amount of money in dispute is often not large. Accordingly, there is great potential for the use of mediation in the fishing industry.
In Vancouver, British Columbia, we are also fortunate to have a number of skilled mediators who have specific knowledge of the fishing industry. For example, Joseph Boskovich of the law firm of DuMoulin and Boskovich is a former seine fisherman who has a great deal of experience in commercial mediations including those related to the fishing industry. Tom Northcott, a former troll fisherman and former associate of the late Gordon Bisaro, has been working as a mediator for nine years. Also, William Prowse, the former in-house Solicitor for Ocean Fisheries is now working as a mediator.
Since the expansion of mediation beyond the traditional areas of labour and family law is relatively new, it is not currently being used extensively in the fishing industry. However, if you have a dispute where it is desirable to maintain your ongoing relationship with the other party, or if there is hope of an early settlement, the use of mediation should be seriously considered.
This article was originally published in the October 2001 issue of Fisherman Life (Anchor Publishing)