Episode #3 - Influence of others: Persuasion, negotiation and diplomacy for conflict resolution

18 November 2022

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Robert Leckey interviews the Right Honourable Beverley McLachlin, a former Justice of the Supreme Court of Canada and the first woman to hold the position of Chief Justice of Canada, an arbitrator, an author, and a mentor for the Pierre Elliott Trudeau Foundation. She shares how she learned to become a better speaker, her thoughts on the communication revolution, on the dangers of siloization, and on how we can express our values and principles.

Transcript

Robert Leckey

Welcome to the Communications and Sharing Knowledge series of the Pierre Elliott Trudeau Foundation, Brave Spaces podcast.

The Right Honourable Beverley McLachlin is a former Justice of the Supreme Court of Canada and served as Chief Justice from 2000 to 2017. She was appointed Chief Justice of the Supreme Court of British Columbia in 1988. And it was January 7th, 2000 that she became the first woman to hold the position of Chief Justice of Canada. As Chief Justice, she chaired the Canadian Judicial Council, the Advisory Council of the Order of Canada, and the Board of Governors of the National Judicial Institute. In total, she participated in some 2,100 decisions of the Supreme Court and authored 442 opinions. She has written and spoken on a wide range of subjects in many areas of law, including constitutional law, criminal law, commercial and corporate law, and dispute resolution, both in the courts and through arbitration and mediation. Now she works as an arbitrator and mediator in Canada. And internationally, she sits as a Justice of the Hong Kong Final Court of Appeal and the Singapore International Commercial Court. She is also a panel member of the Hong Kong International Arbitration Center.

In addition, she is actively engaged in writing fiction and non-fiction. Her first novel, Full Disclosure, was published in May 2018. And her memoir, Truth Be Told, was released in September 2019. She is co-author of the first and second editions of The Canadian Law of Architecture and Engineering.

Beverly McLaughlin serves on a number of charitable boards and is Honorary Patron of various charitable and cultural institutions. She is an Honorary Bencher of The Honorable Society of Gray’s Inn, The Honorable Society of Lincoln’s Inn, the Honorable Society of the Inner Temple and the Honorable Society of the Middle Temple. She is an Honorary Fellow of the American College of Trial Lawyers, the American College of Construction Lawyers, and the International Academy of Construction Lawyers. She is the Visitor of Queen’s College at Cambridge University and Visitor of Massey College at the University of Toronto. She serves as Honorary Colonel to the office of the Judge Advocate-General. And most directly for our purposes, she is a 2020 mentor for the Pierre Elliott Trudeau Foundation and member of the Covid-19 Impact Committee. So, welcome, and how communications and knowledge sharing have been central to your work?

The Right Honourable Beverley McLachlin
Well, thank you very much. It's lovely to be with you. Yes, communications and knowledge sharing is central to so many people's work in different ways. I spent most of my career, most of my life being a lawyer, and then teacher, and then a judge. And each of those roles had communication at the forefront. You can't be a good lawyer unless you can communicate with clients and with the court. You can't be a good teacher unless you can communicate with your students and they with you. And you certainly can't be a good judge, unless you can communicate. Now, communicating as a judge is a little bit different, because he communicates through your judgements, through your written reasons, mainly. But in addition, I also, certainly before I was Chief Justice, but certainly when I became Chief Justice in particular, made it a point to try to communicate with the public about how the institution of the court was working, and how justice was being done in Canada.

Robert
And was that an adjustment after you’ve worked for a number of years, doing judicial communication, primarily, when you started speaking more broadly to the public, did that require any adjustment on your part?

Beverley
Yeah, it was a steep learning curve. I wasn't very good at it at first. I felt that I didn't give speeches very well. I had a lot of technical problems, I would speak too quickly. And you know, what I wasn't doing, basically, was something very fundamental in those early years when I was struggling to become a better speaker. What I wasn't doing is actually realizing that this is a conversation with those people who are sitting out there in the audience, and you are treating them as though they are not there. You're just so focused on delivering your own thoughts that you're not thinking about the communication part, which is having a conversation with those people in the audience. So, I would go too fast, I would just sort of rattle through and try and get it over. I wouldn't use the right emphasis and I always tried to prepare notes, because I was nervous and then I'd get lost in my notes.

So, as I got more confidence, I would just speak to people and I would say, we’re here to talk to each other. I want to listen to you. I would give a shorter address often, and then just take questions and comments. I found that worked much, much better.

Robert
It reminds me, in my early years of teaching, I had more of a sense, as you mentioned, you know, fully prepared notes that I was delivering, and then I started to realize that this was not an audience watching a film, they were there, and we could speak together. And if they were shaking their heads, I needed to stop and figure out why, and all those kinds of things.

Beverley
Exactly. And it's wonderful, just picking up on what you said, to have a live audience, because you can watch their faces, and you can usually tell if somebody's puzzled or perhaps wanting to ask a question but not daring to, and then you can zero in on them, which is something I miss working on Zoom. A lot of the speaking I do now is on different platforms through video, and you see some heads sometimes, but you often don't see the people in the audience at all. And because of the nature of technology, it's much more difficult to read faces and body language, and expressions. So, I do hope that we can get back to talking to each other in a real space, not a virtual space.

Robert
On Zoom they never laugh either, they're all muted. And even if you say something really funny, there's just this silence, huh?

Beverley
Oh yeah. And it can be a dreadful situation. You know, the first class I did on Zoom, I was asked by a professor of law to come and do a 20-minute talk and then we'd have a discussion. And that was in the early days. And I saw a few people, but other people must have had their videos turned off, and I got through my 20 minute-spiel and there was just this silence. And then the professor rescued or tried to rescue the situation by asking a few questions, but I came away from it feeling very disappointed. I love classroom teaching and I love being able to say to somebody, well, you look like you're puzzled. Tell me what you're thinking. And bring them into the conversation. And I couldn't do that on the virtual screen.

Robert
We've gone quite quickly to Zoom and the pandemic communications. But if you look a little more broadly over the past years, what sort of changes and evolutions in communication and knowledge sharing would you observe across multiple sectors?

Beverley
Well, it's just been huge, because somebody as old as I am, and I'm pretty old, grew up in a totally different communication world. We communicated by meetings, by paper, by telephone, by fax. Does anybody now know what a fax is?

Robert
I remember a fax, yeah.

Beverley
And then, suddenly, when I was already late career, this new thing came along and everybody around me was sending emails and they were tweeting, and they were on Facebook, and I thought, what is happening here? And I realized that it's a communication revolution, as big as Gutenberg's invention of the printing press. People are communicating electronically. And as Marshall McLuhan said, the medium is the message. So, what's happening is qualitatively different than other forms of communication. There's a spontaneity about it. There's a closeness about it. There can be, on certain platforms, like Facebook, an element of showmanship. When you get into YouTube and Twitter and how many likes you have, it's raising all sorts of aspects to a prominence. They were always there, I suppose, but to a prominence that we never thought.

And then a final thing, it's not the final, but the list of what the changes are, and how we communicate are so vast. But one important one is this ability to polarize because you can select your… there's so much available and people select the conversation groups they want to have conversations with. And there's only so many hours in the day. And so, they always go to the same groups and they're hearing the same views, and they aren't listening to other views. And so, this is the biggest threat, I think, we face – people are drawn into their own little silos of other like-minded people with the same ideas. This can have a ratcheting up effect, where ideas that are kind of crazy actually take on reality. QAnon, that kind of thing. And it can have a very confining effect, because unlike the old days where, you know, you open the paper and there it is spread out before you, and your eye glances over a lot of different stories and information, and opinion pieces from people who don't think like you, for example. And you look at them. You may not look at them long, but you look at them. And you're aware of a world where there are lots of opposing ideas, and no one clear handle on what is the absolute truth. And so, that kind of relativism pervaded my communication world, but in the Internet, there's a certainty that comes along, there's a siloization, there's a shutting out of voices that are unlike and ideas that are unlike yours, which is very bad for democracy, and very bad, actually, for growth and development.

Robert
So, all this noise and all these people with ways to speak. And at times, in the Trudeau Foundation and elsewhere, there's discussions about creating a brave space of dialogue. And I wondered what you think of that idea.

Beverley
Yeah. I don't know what it is to be brave. What I think, what I try to do is say, what are my principles? What are my values? And how can I express them and stand up for them? And if that involves being brave, well, that's fine. If it doesn't, that's fine too, but there's no virtue in just being rashly brave.

The virtue is in understanding your values and principles, and acting and speaking in accordance with them. And that does take courage sometimes, because particularly in a world where people are driven to the same conclusions, the same ideas, to speak up against that can be extremely difficult. And you will incur all the wrath of the people online who don’t think like you, et cetera, et cetera. And the nuances you're trying to convey will be lost. This takes courage. Courage is, for me, and I'm getting philosophical here, a supplementary virtue. It's necessary, so that you can take a principled stance and do what's right.

Robert
What are some of those principles, if it's not, first and foremost, courage that would be driving how you think about the way you communicate? What are some of those principles you would think of?

Beverley
Well, I think each person has to sort that out for themselves, and it depends on the circumstances. You see, whenever you're facing a problem, a decision… let's take the vaccine issue – should vaccines be mandatory? Well, there's a lot of principles involved: there's the freedom of your own body, to do what you want with your own body, on the one hand. On the other hand, there's the public health aspect. So, you have values of individual economy, you have values of social responsibility, and then you have some difficult decisions to make in real life situations as to what you're going to do and where you're going to come down, and where your lines are going to be drawn. So, it's not like, oh, this is my principle, and I'll follow it to the end, and it's all very easy. No, and this is, of course, what my work as a judge was, every judge's work is – you're in this difficult area, where you have principles that seem to be pointing in different directions, and they're all important.

So, the wonderful thing about us in Canada is that we have a culture of compromise, and I think that's the most important thing we have in Canada. It's right there in our Charter. We say, everybody has rights. We're going to give you all these rights. You read about them: free expression, liberty, right to control your body... It doesn't say it quite in those terms, but it talks about liberty. And here are your rights, people, but Section 1 says, they are subject to limits imposed by law. The limits that the government can justify as reasonable and justified in a fair and a free and democratic society. So, it's this balancing, which is the great principle, if you like. We have all these different values, and in a particular situation, like, will I make somebody against her will get a vaccine, you're doing a balancing act. And you have to decide that for yourself, whether you would actually grab somebody and drag her, kicking and screaming, into a building and poke her. I mean, there is such a thing as controlling your own body, but what else would you do? Maybe there's action short of that. Like, encouraging vaccination, like giving incentives, like trying to impress people with social responsibility and how we need to help our co-citizens get through this. So, that's the kind of way I come at this. And sometimes, when you draw your line, you've worked it all through, that line may not be in a line that other people like, some other people like. Often, it'll be a controversial line. And that's where the courage comes in. You've got to say, well, I've thought about this. I've worked it through. And this is where I come out on it.

Robert
Totally for a moment going off the questions we talked about before, but you were perceived as Chief Justice as being very good at fostering consensus. At least from the outside, there was a perception that that's something you were good at. And it seems to me, that involved people with quite deeply held views that at times came into conflict.
How do you personally help people to find consensus or to listen to one another when they disagree?

Beverley
Well, you just keep talking and meeting, and listening, you know. There's just listening. There's passive listening and active listening. Passive listening – I'm just sitting at the table and I'm thinking about what I'm going to do when I leave the office, whether I need to go to the bank today and yeah, I'm passive listening. Some of it is going in, but I'm not really in it. Active listening is really important. And that is where you're taking on the idea. And sometimes you are disagreeing with it, but you're taking it on, and you're discussing. And I think the active listening is really, really important.

So, Bertha Wilson, who was the first woman on the Supreme Court of Canada. She was still there when I joined. She gave me one piece of advice. She said, the people of Canada are entitled not to nine individual views on a question, there being nine judges, but they are entitled to nine views after each of those individuals has listened to and considered the other views. That's really interesting. So that's the process. And she put it so well. And I think, that is the essence of being a good judge. You don't just come on the Court to say, well, I don't like abortion. Therefore, I'm always going to vote anti-abortion, for example. No, no. You listen to people, and you couple that with the idea that your job is not just to put in your own opinion, but to apply the law, the law is your master and mistress. You have to be quite humble. Your own opinion isn't the law, and other citizens aren't required to accept your personal opinions. They are required to accept what you say about the law, because that's your position as a judge.

Robert
Justice Wilson's point about listening to the others means you really can't just phone it in. You have to be there listening actively at the table, open to the possibility your views will change as you listen, right?

Beverley
Yeah. That's why I think on a Court, the more conversations you can have about cases, the better. There's also such a thing, and it's often confused, which is collegiality, which is just being friends and getting along. And that helps. But people often look at the United States Supreme Court and they say, you know, these people Scalia and Ginsburg, they were so different, they had such different views, and yet they were friends. Of course, they are, but that didn't help them come to closer views, because they each started from such different viewpoints, and it wasn't possible often for them to meet, although sometimes they did. But you start off with a basic, I hope, collegiality in a situation where people actually are happy with each other or have worked out some sort of relationship, where they can talk to each other in confidence, because there has to be a trust at the basis of all of this communication, if you want to get to a real answer or consensus as close as you can get.

Robert
So now in the current moment, a lot of those discussions that might once have been around a table with coffee in front of us, have switched to Zoom or other electronic means. How does that affect the group decision making and talking to one another?

Beverley
Yeah, I don't know. I think in different ways. I do quite a bit online decision making. As you mentioned, to do some arbitration and that kind of thing. And it's possible, particularly if you have this relationship of trust, and different people raise different points, and you end up with a consensus, usually. So, I don't think it's impossible. We can use it very, very well to achieve consensus. So, I don't personally see any particular difficulty. There may be issues, as I mentioned earlier, with body language and reading people's face. And we know from psychology and so on how complex all of this is. So, it's easier to read body language and people’s facial expressions when we are face to face. So that is one aspect that we have to be aware of when we're talking about, when we're using electronic video communications. It's really difficult, even on the family ones – we all have these family Zooms or FaceTimes. And our loved ones whom we think are so beautiful, look so ugly and they look so unnatural, and you're saying, and they don't know when to come in on the conversation. So yeah, there are definite limits, but in a business situation or a political, or whatever, you can have that conversation, people can bring up the points and you can get to a consensus, but on the social aspect of it, very difficult.

Robert
You could do a hearing, but I don't think we found a way to do a party yet.

Beverley
That's, it, we can't do parties on Zoom. I have tried. I mean, I've been invited to a couple of parties on Zoom and people bring their little drink, but it's not the same, no.

Robert
You were fortunate, I think, to retire, and there were some wonderful events marking your retirement, but it would not have been the same as a retirement party on Zoom.

Beverley
No, we had some good parties.

Robert
You mentioned the polarization, as people are following their own little Facebook groups to get their news. How do you yourself gather information from the media outlets these days?

Beverley
Well, when I was a judge, you know, the judges have to be very circumspect, and you don't want to get involved in conversations that people might think are showing bias, or even the people you're having them with are biased. So, I just did what almost all judges did, I think, and that's, stay off Facebook. And now I have not gone back on it. I could, but I find myself really busy and I just rely on those around me to say, oh, you know, aunt whatever, Nancy had this problem and everybody in the family Facebook is talking about it. There are others to do those things, but… and that's sort of a copout on my part, but I haven't ever got into much of the social media at all.

Robert
You're consuming news from others. You're consuming harder news in a range of ways, I got it.

Beverley
But harder news, yes. Everything from your telephone and your computer, and newspapers. I still rely on newspapers, and I have a wonderful group of associates and friends who often will find an article in some newspaper I might not ordinarily see and send it to me. So, I get quite a bit of information. But the quality of some of it is really frustrating. I mean, you're sitting, waiting for a doctor or something. You pick up your iPhone and you get a story on the news app. And you get about two lines and then you can't go anywhere. And so, I find it very frustrating, because I tend to be someone who likes to read in depth. I like to read the opinion pages. I like to see, what actually happened, and this little headline, as we all know, can be terribly misleading. And so, it's not the way I like to get news. I still like more in-depth, but you can subscribe online to newspapers and get that kind of analysis, magazines, that kind of thing.

And because social media is so active, we're all I am on emailing and texting, and that kind of thing. And lots of people will say, well, read this or this is a good analysis. And so, that's how I'm getting my news these days, as well as actually subscribing to some of newspapers and reading them.

Robert
Do you have any advice? I mean, you've had an extraordinary career, really. And, as you mentioned, communication has been running all through it, from being a lawyer, to being a teacher, to being a judge, and now an author. Do you have any final advice for us about communication?

Beverley
Oh, I'm very bad at the big questions, but I think listening is important. I don't think you can communicate well… Too many people think communication is about me telling them what to think or what to do. And there is a close-mindedness that comes in. And I notice it a lot in some of the new approaches, like the insistence that on our campuses, that certain words not be spoken or certain ideas not be discussed. And it's as though. Okay, I've read about this, I've made up my mind. This is very bad, whatever it is. And therefore, I've solved the problem. It's all over and it can go away. So, I don't want to have another discussion. It's just that there are these mindsets that come in, where people don't want to explore. And I think exploring conflicting ideas is why we have achieved so much in our civilization. I speak broadly of our Western libertarian civilization. But there are powerful forces that want us only to speak what they tell us to speak, and they're on all sides. And of course, one is very worried about illiberal democracies, quote, unquote, that seem to be ascendant now in so many parts of the world.

Robert
Beverley McLauchlin, it has been a tremendous pleasure speaking with you today. Thank you so much.

Beverley
Thank you. Lovely to talk with you.