Jeanette Bicknell Ph.D., Q. Med.

Jeanette BicknellI help people resolve conflict, and I help groups work together effectively and respectfully.

My practice areas include art, education, employment, condominium and workplace disputes.

Like many mediators, I have come into the field after doing something else. I taught philosophy at the university level for about 10 years. My academic specialties were the philosophy of art and ethics. But no matter what the specific material I was teaching, I always considered that my primary task was helping others to think clearly. I’m still doing this, but now as a mediator.

I’m still active in academic philosophy. You can find out more about my work at www.jeanettebicknell.org

My work as a mediator falls into two main categories:

I provide civil mediation services for lawyers and their clients as an associate with the Sadowski Resolutions Group LLP.  I am on the Attorney General’s roster for the Ontario Mandatory Mediation Program.

With my own company, PDRC – Principled Dispute Resolution and Consulting, I help groups of people to work together effectively and respectfully.  I understand the harm that is caused by dysfunctional conflict, but not all conflict is bad.  I strive to help clients create workplaces where employees can focus on their work without the distraction of personal conflicts, and I am passionate about working with teams and boards so that members can trust one another enough to have constructive disagreements.

When I’m not working or spending time with my family, you are likely to find me at a yoga studio.  (But don’t worry, if you work with me I won’t ask you to sit in a circle and chant, etc.)

Thinking About Conflict and Value is my blog. Conflict is what mediators spend most of their time thinking about, working through, and trying to resolve. Value refers both to moral values and to aesthetic or artistic values. I write on a wide variety of topics, including best practices in mediation, ethical and legal issues in the arts, workplace conflict, business ethics, and the ethics of everyday life. You may also find the occasional book review. I invite you to join in the discussion on these blog posts.

From the Blog:

Moving On after Conflict

By BrokenSphere (Own Work)

While conflict can end a relationship, sometimes people have no choice but to continue their relationship after a conflict. Management and labour must work together after a strike, separating couples share decisions about their children and feuding neighbours may go on living side-by-side. Even opposing sides in a civil war must find ways to co-exist in the aftermath. How a conflict is managed makes a big difference in whether or not an ongoing relationship is tolerable.

Mediation is an excellent choice for resolving many kinds of disputes because it can preserve and even strengthen relationships. A mediation is basically a structured conversation. Mediators facilitate negotiation and help parties communicate with one another effectively so that they can craft their own resolutions. Mediation does not create “winners” and “losers.” Everyone can walk out of a mediation with dignity intact. Unlike judges or arbitrators, mediators do not impose solutions or make judgments. Instead parties in a dispute have control over the outcome of their conflict. This is important, because research indicates that people are more likely to respect a settlement if they have had a hand in shaping it.

Yet mediation is not always possible or advisable and sometimes a friendly resolution is out of reach. There are still things parties in a dispute can do to minimize the harm done by conflict.

Pick your battles. Think carefully before initiating or joining in a conflict. Is the issue really important to you? If it is, then deal with it as soon as you can. Confrontation may be uncomfortable, but letting things fester almost always makes them worse.

Is the conflict structural? Are the conditions that led to the present conflict likely to recur? If so, see what can be done to change those conditions. For example, have misunderstandings arisen because people have not had the same access to information? If the conflict is in a workplace, has weak or ineffective managment failed to intervene in the early stages of a potential problem?

Recognize your own part in what has gone on. It might be comforting to believe that one “bad apple” is responsible for the conflict. This is rarely the case. While one-sided conflicts exist, it is much more common that a conflict between two or more competent adults has been fed by contributions from all sides.  This does not mean, of course, that the contributions are necessarily equal.  Avoiding a conflict can prolong it, just as surely as can angry words. Recognizing one’s own share in a conflict is part of ensuring that it will not flare up again. At the same time, be aware that disruptive behavior may be a consequence of mental illness or addiction. Seek professional advice if you suspect this is the case.

Acknowledge hurt feelings and apologize if appropriate. Nearly everyone finds conflict stressful. A sincere apology or an acknowledgement of the other party’s feelings can be a powerful first step in helping everyone move on. Remember that feelings are legitimate, even if the reasons for the feelings may not be. Yet don’t apologize if you can’t be sincere. Most people are good at detecting insincerity, and an insincere apology usually makes things worse. (And whatever you do, don’t say, “I’m sorry but….”)

Want to know more about apologies? Try Apologies 101, Apologies 201 (Advanced Course), Asking for an Apology and Asking for an Apology (Part 2).

Don’t gossip. Even if your conflict has ended without formal confidentiality provisions, resist the urge to discuss it with others who may have been involved. Gossip is prohibited by the ancient moral codes of many cultures, from Judaism to Buddhism to Confucianism, because our ancestors recognized that although we may have an urge to engage in idle talk about others, to do so can damage social relations. If you need to discuss the conflict, find someone who is not involved.

Focus on what you can control – your own actions and responses. You cannot make another person apologize, take responsibility for their actions, or do the right thing. Yet you can control your own actions. You can choose to put the conflict behind you and behave with grace. You can choose to treat others with respect. And you can resist the impulse to define yourself and others through the lens of the conflict.

Finally, begin with the end in mind. When Steven Covey, author of The Seven Habits of Highly Effective People, identified this as Habit No. 2, he had in mind the simple idea that we need to set a goal before taking action. This rule applies equally well to conflict situations. What kinds of relationships do you envision post-conflict? How do you want to see yourself when you think back over your actions? A clear sense of your own values and priorities should guide your behavior in the conflict and help you make decisions that you can be proud of later.

This post first appeared in a slightly different form in the May 2014 issue of Condo Business. You can find a PDF of the article on the “For People in Conflict” page.

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What is it to “own” an artwork?

By Jeff the quiet (Own work) [Public domain], via Wikimedia Commons

Many artworks fall into the category of what the philosopher J.L. Austen called “medium sized dry goods.” They are physical objects that we can have and hold, display, give away, sell, and so on. So the ownership of an artwork should be no more problematic or puzzling than the ownership of any physical object.

But within our practices and within the law, we do in fact treat artworks differently than other kinds of objects. I think that is a part of what makes disputes over the ownership of artworks so compelling. (And each week seems to bring another story in the media about the recovery or restitution of artworks: Ancient statutes returned to Cambodia, the horde of Nazi-looted artworks found in the apartment of Cornelius Gurlitt, the Banksy mural removed from a wall in Bristol and confiscated by the local government.) These disputes challenge some of our intuitions in fundamental ways. They force us to think about our usual notions of “ownership” and what it means for an individual or an institution to possess something.

We usually think of ownership as meaning that we have some basic rights over objects that we own. First among these is the “right to exclude.” If I own land, then ordinarily I have the right to stop others from trespassing onto that land. If I own a shovel, I might lend it to you if you ask, but I also have the right to refuse. If I own a painting, I am also within my rights to hide it away and refuse to allow anyone else to see it. However the right to exclude has limits. I don’t have the right to exclude the police from my land if they have a search warrant. And while I have the right to deny access to the artworks I possess, the reality is that dealers for the most sought-after artists may decline to sell to a collector whom they believe will refuse to lend the work out for exhibitions. Ensuring that the works go to the “right” kinds of “cooperative” buyers is often more important than making a sale.

Another right that ownership confers is the right to use or alter something as I wish. I can paint my shovel any colour I want, I can replace the blade if it becomes damaged, I can even shorten the handle to make it easier to use. But in many jurisdictions I would not have similar rights over an artwork, even if I owned it. Artists retain “moral rights” over their creations even when they no longer have physical possession. In areas where moral rights are protected, no one may alter or destroy a work without the artist’s permission.

Moral rights typically expire at some point after an artist’s death. Yet the right to destroy an artwork that one owns is not an obvious entitlement, even if the artist’s moral rights no longer apply. Collector Ryoei Saito caused a scandal in 1990 when he “joked” that two paintings he had bought at auction – one by Van Gogh and one by Renoir – were to be cremated and buried along with him when he died. Perhaps even more strange (from a legal point of view) are cases when someone else, other than an artwork’s owner or creator, claims the right to destroy it. The Chagall Committee, an organization run by the artist’s grandchildren to protect the late painter’s reputation, authenticates works and also claims the right to destroy forgeries so that they never appear on the open market. Imagine the shock of British collector Martin Lang who was told, not only that the painting which he had bought for the equivalent of nearly $200, 000 Cdn. was a likely forgery, but that it was slated for destruction.

Finally, we ordinarily have the right to transfer the ownership of things we own. I am free to give away, trade or sell my shovel. Again, the situation is more complicated with artworks. Many countries have laws forbidding the export of significant works. Bequests of art may come with prohibitions against transfer, and it is not always straight-forward whether a museum has the right to de-access works.

There are restrictions on the transfer of artworks may not come as a surprise. In fact, the whole area of what counts as a “valid” transfer – of an artwork or of anything else – is fraught. I’ll have more to say about it in a later post.

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Condo Law Digest – June 2014

Advertisement for cigars from Havana. Lithograph, 1868

Advertisement for cigars from Havana. Lithograph, 1868

MacKay & Cheney v. Metropolitan Toronto Condominium Corp., 2014 ONSC 2863
Decision Date:  May 12, 2014
http://canlii.ca/t/g6v95

In late June 2013 the applicants noticed a strong smell of cigar smoke in their unit. They reported this to the concierge on duty and made a formal complaint to the building’s manager.  About 2 weeks later, as the smell of smoke continued, they contacted their insurance company.  An adjustor investigated and concluded that the contents were smoke-damaged and that the unit was uninhabitable.  The applicants moved to a hotel at the insurance company’s expense.  The owner of the upstairs unit was asked to refrain from smoking cigars in his unit pending an investigation.  (Will it surprise anyone reading this to hear that he did not?) Then followed several months of delays due to vacations (the manager, then the President of the Board), visits by consultants and engineers (one of whom identified the smoke migration between the units as a fire safety risk and violation of the Ontario Fire Code), letters from the Board’s lawyer to the applicants, letters from the applicants’ lawyer to the Board, “dueling correspondence” between the lawyers, differences of opinion among various engineering consultants as to whether the problem of smoke transfer had been definitively solved, and further delays due to inaction.

After five months of living in a hotel and not having their concerns addressed, McKay and Cheney commenced an application, seeking a declaration that the corporation had breached its duty to maintain the common elements and to repair the common elements after damage, and that the members of the Board (named as individual defendants) had breached their duty to act in good faith and exercise reasonable care, diligence and skill.  The present two-day trial, held on an urgent basis, dealt only with the question of repair and maintenance of the common elements.  Justice Mew found that there was evidence that the problem was now solved, although he advised that it may be prudent for the corporation to take additional steps.  In particular, there is an arguable case for further testing between the two units.  He ordered partial costs in favor of the applicants.

Comment: The question of the directors’ personal liability has not yet been addressed.  Justice Mew noted that a “negative attitude” on the part of the Board towards the applicants coloured their decision making.  The applicants were “quickly branded as complainers who had far too quickly ran off to their own lawyers.”  Managers and Boards must remember that judges and arbitrators may not necessarily endorse their views, and that even seemingly “difficult” owners have rights.

Posted in Condo Disputes | Leave a comment