Mediation: Theory and Approach PDF

Mediation -- Theory and how to approach it ========================================== ### Mediation Contexts Court ordered or voluntary. The capacity to participate and the ability to come to a disagreement are both voluntary. The more personal the context, the Legally assisted: most court ordere...

Mediation -- Theory and how to approach it ========================================== ### Mediation Contexts Court ordered or voluntary. The capacity to participate and the ability to come to a disagreement are both voluntary. The more personal the context, the Legally assisted: most court ordered mediations are legally assisted but outside of this mediations are often party participants only Mediator skills and background, in many areas, mediators are not legally trained and instead have backgrounds as elders in a community, social science, social work etc. International and Domestic Before during and after proceedings. The way that lawyers display approaches during proceedings influences the behaviour of parties in future disputes. Australian Mediator and Dispute Resolution Accreditation Standards ### Which Disputes Suit Mediation? International disputes and commercial civil disputes both suit mediation. Other civil disputes which suit mediation include: - Industrial/employment - Personal Injuries - Neighbourhood disputes Interpersonal disputes which suit mediation include: - Family Law - Children's Court - Wills and Estates Mediation can be effective in child sex abuse cases where all the evidence points towards a party being guilty. Mediation can reduce trauma and dispel the victim/perpetrator dynamic In mediation, we are trying to find a solution which advantages both parties or neither Children's courts are users of mediation services as reunification is the goal Mediation is: entirely voluntary, a decision-making process, heavily structured (although if you get it right it won\'t feel like that), resolution focused, consensual outcomes Mediation s not: counselling, arbitration, unassisted dialogue, unstructured, mediation Even when you are dealing with deeply therapeutic contexts, mediation is not counselling. Sometimes an outcome can be therapeutic but the ultimate goal is to settle the legal dispute A mediator cannot make a decision or express a view that compromises their impartiality (that is the role of a conciliator) When they are consenting to a mediation, a person is consenting to have an impartial person assisting their dialogue Mediation is all about paying attention and to the right things ### Models of Mediation Therapeutic mediation -- used in the context of youth justice conferencing. Not many commercial disputes benefit from this. It is powerful in vulnerable populations and preventative Settlement mediation -- highly transactional and simple. Not often used in legal contexts as it is usually not very complex Facilitative mediation -- this and evaluative are most commonly applied in practice. Evaluative mediation -- very similar to conciliation Conciliation mediation -- process is very similar, fluid process from mediation to conciliation ### Facilitative and Evaluative Mediation Facilitative and Evaluative Mediation are the most common forms of mediation in Australia Legalistic approaches lean evaluative but there should be a focus on facilitative mediation Evaluative mediation requires expertise, most such mediators tend to be retired judges, silks etc. this causes issues as they tend to be litigatory and lack soft skills ### Success rate and fundamental tenants Mediation has an 80% success rate. Features of mediation are: - Non-Binding - Rapport driven - Confidential. A party may bring up a position in mediation and take a completely different stance during trial - Impartiality of mediator. Confidentiality is key as are professional obligations in this context - Autonomy of decisions ### Accreditation standards Participation in accreditation is voluntary. Many retired judges and barristers participate without accreditation ### Advice on mediation from CJ of FCFCOA Do not create unrealistic expectations. Engage in reality checking on the parties especially if you suspect that they have not been given realistic advice Accept the difference between mediation and court-based resolution. When you move from one to the other, the audience shifts and the tools that you can rely on shifts. In a court, your role is to convince the judge, in a mediation it is to convince the other side Bombastic representation is inappropriate in mediation Know the law as DR occurs in the shadow of the law. Without this, negotiations take place in a different universe Prepare without parading knowledge. Focus on advocating your own case, not on pointing out weaknesses in the other side etc. Recognise the past but shift the focus to future solutions Work on finding common ground. The cost involved in disputes is not solely financial. A good way to find common ground is to focus on the substance of the dispute and not the totality of the whole Avoid ambit claims which have little or no foundation as these can be a significant impediment to resolution In many ways the more complex the dispute, the more opportunities there are for resolution Mediation allows parties to say: I don't need closure on that particular part of the issue Present constructive solutions. Mediators are allowed to insist that the parties provide options for possible future solutions Discuss with the parties the value of obtaining future information ### What should a mediator do Help the parties exchange uncertainty for certainty. All parties start in different places but end in the same. That same place has closure and certainty Be the voice least heard Not work harder than the parties. The people who own the solution are the parties. You know you are working hard when you are hunting for solutions and that is not what mediation is about. It is about pushing that autonomy of decision making onto the parties Not decide the issues. Not even in your own mind. This is very difficult. Not deciding whether something will succeed is part of this as well ### Strengths and Challenges Strengths: interests based, spoken process, flexible process and outcomes, relationship preservation, cost effective (cf litigation), private forum Challenges: voluntary, non-binding, power imbalances, private forum, unfair outcome ### Facilitative Mediation No active intervention No opinion Assist negotiations Interests based The ability to read a person and find what their drivers are is most contained. The mediator's role is to assist those negotiations **Managing conflict requires** Understanding of the phases of conflict: prelude, avoidance, triggering event, aggression, intervention, resolution Managing conflict requires - Curiosity - Lack of judgement - Patience for information and outcome - Flexibility - Stamina ### Vital elements of mediation You must build rapport and connection with everyone in the process. Must establish confidentiality, maintain impartiality and retain autonomy Group discussions (all parties and advisors). Encourages accountability The level of representation that a party has informs the dynamic of discussion Advisors only (mediators and lawyers). Risks the mediator only understanding through the lens of the lawyer which might be a different understanding of the dispute than the client themselves Shuttle (private rooms). This can help build trust with the mediator. Helps vulnerable clients to speak out. These become the alternative to joint sessions. Helps to diffuse an agitated party and make the process less relative. A good place for vulnerability and for freedom of communication for the client and advisor Not being physically present in a mediation impacts the dynamic AM's preference is a joint session at the beginning where she speaks, then separate then coming back together (optional) It is a really flexible disciplined process and not at all a free for all ### Once the decision is made to mediate The steps involved once a decision is made to mediate: 1. selection of mediator 2. mediation process and style 3. language/cultural dynamics resources 4. setting and location (online) 5. legal representation 6. preparation for expectations Process of selection could be through mutual friends, nominated by the court, picking from a panel of 5 etc. When representing someone in a mediation, you want to think more about how the mediator will influence the other side than how your client will experience the mediation because you can control that. You are only there because that could not be resolved to agreement without a 3^rd^ party Every mediator has their own process and style Think about how to make the process productive for diverse participants in the process Hosting mediations online can create barriers of participation but has also alleviated barriers for remote communities Preparation in the area of law is essential Mediation statements should be written with the other party in mind as they are the audience, not the mediator. Use simple language and do not antagonise **Process Fundamentals** ------------------------ ### Intake In the intake stage, there is an enormous opportunity to be a guide to the parties to ensure success throughout the rest of the process. It is a screening tool to determine issues, willingness to proceed, type of person and representative involved. Rapport building opportunity Ideally intake is happening 1-2 weeks before the mediation so that people have time to process and prepare Intake checklist - Rapport - What lies ahead -- what is this process? - Confidentiality - Non-judgment (Transference and Counter Transference) - Interests Identification - Positive priming - Reframe - DETAILS DETAILS DETAILS Always ask how they feel at the end, this gives an indicator of how they will be going into the process ### Opening During the opening, a mediator is trying to contain the heat of the dispute, organising a staggered arrival so they don't run into each other Making sure that when you start it is as productive as possible Opening checklist - Gravitas/authority -- controller of process - Rapport - Foundation of process - Confidentiality - Positive problem solving - How not to polarise - The bucket of good will ### Joint session Part of the process with the most flexibility Joint session checklist - Gravitas/authority -- controller of process - Rapport - Confidentiality - Positive problem solving - How not to polarise - What to do about -- - Entrenched views - Power imbalance - Mental health - Poor advice - Lack of information ### Information gathering This helps to ensure that the dispute can be resolved in a timely manner as if they have agreed but do not have the relevant documents with them, this can be an issue that stops the agreement Information gathering checklist - What's requested? - How does it help resolve the issue? - What's available? - How does having it assist? - What's not available? - How does not having it affect negotiations? - What to do? - IS THERE ENOUGH INFORMATION TO MAKE A DECISION ### Negotiation Think about the other emotions that underpin someone's anger Complexity loves Order: 1. Simplify The Complex -- M.I.S & K.I.S 2. Support an Organised State of Mind 3. Be Realistic Reality testing; Doubt creation; Risk assessment; Managing Impasse Who and What Is The Mediation For? For the parties, not the lawyers. Your job is to make sure what is actually needed for closure is delivered What Does Each Party Need to Reach Agreement? Can It Be Delivered? WATNA (worst) /BATNA (best) alternatives Most significant concerns as a legal representative is: Power Imbalance and Lack of Information The odds are that a dispute will be resolved in the mediation stage, but if you focus on the problem this does not always seem possible ### Agreement and documentation Agree on timeframe, costs, future representation, documentation once mediation is finished Never leave lawyers alone to do the drafting At the end of this process you want a stickable agreement and parties who leave with closure ### Close The close of the mediation is different from the end of the process is. It is a consideration of next steps