Some battles can’t be won: Lessons from the world of Alternative Dispute Resolution

The creative process is a process of surrender, not control.

-Julia Cameron

I’ve written many times about Downtown Brampton, and argued that the status quo is self perpetuating because of an illogical insistence on building a Downtown in the wrong possible choice of location possible in the City of Brampton. This post isn’t about that though. Instead, I want to share a lesson about Alternative Dispute Resolution (ADR), and Mediation in particular. The lesson?  Some battles just aren’t worth fighting.

*Although, seriously: Four Corners is physically constrained on all four sides, and the whole area is a flood plain, is there any wonder it never grows? It’s a battle that we may be incapable of winning. More to the point, it may be a battle that it makes no fiscal sense to even fight. We are over $500 Million into building up the area, and what do we have to show for it? Government and Religious uses account for almost, if not over, 50% of the 200 hectares of available land, and Metrolinx is about to convert an entire square block into a GO Parking Lot, and the City and Ryerson are about to convert additional hectares into more government uses (University campus and library). What does that even leave for the private sector to develop, if it were even so inclined? It’s not so inclined, for the record. The evidence of that is quite clear. 

Litigation is a tricky business, once described by a lawyer (S. O’Neill) as “the process of making the other guy walk across burning coals to collect the money you know full well you owe them.” In other words, the process of litigation is just a very expensive way to have a judge tell someone that you are right, and they are wrong. Even when you win a lawsuit, all you get is a piece of paper that says you are right, and they are wrong. You still have to try to collect, which can be just as expensive as the Judgment, which is nothing but a piece of paper after all.

ADR, and Mediation, on the other hand, is an entirely different process. When handled properly, it is a process of convincing people that the battle is not worth fighting, that moving past the battle and working together to find a solution to the conflict is a far better use of time, money and resources than trying to figure out who is right and who is wrong. Good mediators can coax parties into negotiating a settlement where everyone finds a way to win, and nobody loses. No one needs to be right, and no one needs to be wrong. If we can all pick a goal we agree on, and accomplish that goal, we can all win in the end.

Here is a great example from my own law practice.  Two parties to a real estate deal were fighting over a $30,000 deposit. In Court, one person will get the $30,000, and the other person will get nothing but legal bills. But, observes the mediator, a trial will involve far more than the award of “Costs” will ever reimburse. The parties all crunched the numbers, and all told, the Winner was looking at walking away with $10,000, the loser would be out of pocket about $50,000.  And that was if no one appealed.

But the Mediator was able to convince the parties that by splitting the Deposit, both could walk away with $15,000 minus only what they paid to the lawyers so far. Meaning both parties would walk away with at least $10,000! In other words, both parties would financially be in the same position as if they had won the case, BUT neither party would be in the same financial position as they would be had they lost the Case.

One can easily see the lesson in action; that by surrendering the immediate goal of “winning”, each party could actually be in an equal or superior financial position. By accepting that there was no need to be “Right” or to “Win” the case, each party actually stood to be in a Better position, because it would be possible to collect $15,000 instead of $10,000. Society was better off too, because a lawsuit was settled and there would be one less case clogging up the system. It was Win-Win-Win.

So what can we learn, as a City, from this story? We can learn the most important lesson of all: Sometimes the path to victory lies in surrender.

If our Goal is to create an economic and commercial district (an “ECD”) to generate or repatriate jobs, we have to focus on THAT goal. Just because we have inherited a legacy of past attempts to create that ECD in Four Corners, doesn’t mean we have to fight that battle for infinity. We can surrender. We can make different choices.

The fact is, the Government is about to spend over $200 Million Dollars to bring Ryerson to Four Corners. The Government wants to spend hundreds of millions of dollars refurbishing the flood diversion to unlock more development in Four Corners.  Lets say, for argument’s sake, that all adds up to $300 Million Dollars.

Now, as a thought experiment, just ask yourself: if we change the question from “What do we need to do to make Four Corners our Downtown?” to “We have $300 Million to spend, how and where can we spend so that the money will have the maximum economic benefit to the City as a Whole?” then I think we come up with a very different shopping list than “Campus, library, riverwalk.” Why, look at what was done with around $200,000,000:

Rose Theatre (assuming this includes garden square) $ 55,000,000.00
Rose Theatre Annual Subsidies for 10 years $ 34,000,000.00
PAMA – Renovation $15,000,000.00
Façade Programs *per March 2015 econ snapshot $ 1,707,000.00
Downtown Business Development Corp. ($1M per year 6 years) $ 6,000,000.00
Central Area CIP 1994 to 2017 (as per current report at meeting today) $ 34,000.00
Chapelview Apartments (per media reports) $ 37,500,000.00
John Street CN Realignment $  5,400,000.00
Garden Square Media $  4,200,000.00
Brampton transit terminal $ 10,000,000.00
Alderlea Heritage Building (per 2011 econ snapshot) $ 5,700,000.00
Alderlea Purchase (2002) $ 1,000,000.00
Cheggogin Co-op (based on 1135 queen)    $ 35,000,000.00
Total $ 216,141,000.00

So, I ask it plainly: if that $200,000,000 (which isn’t even half of what has been spent in Four Corners) hasn’t triggered a significant influx of private investment, do we forge ahead and spend another $200,000,000? Or, do we consider Surrender?

Do we rephrase the question and look at spending the next $300,000,000 somewhere else? Consider being creative with our next $300 Million in infastructure spending, and put it in a place determined not by the well-intentioned question of “How do we grow the Four Corners?” but by the real question “How we spend this money in the way that will best improve the lives of Brampton residents?”

As written before, we (should) all have the same goal. If there is no “I” in Brampton, if there is no need to “win” (as if it’s a Game), no need to be “right”, and if we focus on the singular goal of making life better and more affordable for our residents, how do we do that? Where do we invest?

I grew up in a Co-op. I gave me life skills, learning opportunities and safe and affordable housing. Chapelview is giving people an affordable and accessible place to live. We could build two more, and still have $130,000,000 to play around with.  Another Aderlea on the East End to provide more wedding and conference venues. Another transit terminal to provide a hub in our northeast corner to support the new MegaMall. Another Theatre, with subsidies, with giant Media Screen, say at Dixie and Clarke, or Bovaird and Sandlewood, to provide more cultural venues and give the people in our NE corner a low cost outdoor family friendly venue they can walk to. Facade improvements and refurbishing our older rec centres in lieu of that same spending only on Four Corners facades and PAMA renovations.  Same money, different outcomes.

$300 Million can buy a lot of seeds. We don’t need to plant them all in the same place. If we re-examine what our actual goal is, and bring ourselves back to our real purpose, if we surrender ourselves to the bigger picture, we just may be surprised to learn that everyone can win without anyone having to lose in the process.







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