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Six Golden Rules of Mediation

July 29, 2013 at 3:15 PM

When I first commenced practice as a litigator, I searched for simple techniques which would quickly and easily turn me into an expert cross-examiner.
Alas, I found no such magic bullets. Instead I came to realise that good cross-examination results from the application of unglamorous guiding principles, supplemented by skills refined over time.
So too is it the case with mediation. This applies to both mediators and counsel for the parties. To succeed in your role, if you get the basic rules right, you are large part there.
Here are the basic rules of mediation which have worked for me during my 18 years as a mediator.


Prepare

Sorry to say it, but as with most things, preparation is avoided at peril.
The preparation requirements of mediators and counsel differ somewhat, but stem from the same self-directed question: "What should I do before the mediation takes place in order to maximise the prospects of a successful outcome?"
For counsel, there are two sides to the coin: preparing yourself, and preparing your client. The former involves the traditional stuff of mastering the facts and law, but also involves consideration of style, strategy, risk and interests. As for the clients, they need to have the process carefully explained to them in order that they conduct themselves in a helpful manner and have realistic expectations.
Preparation for mediators on the other hand, involves a relatively cursory examination of the facts and law, contrasting with the more important requirement to reach a careful understanding of the expected dynamics and challenges of the imminent mediation. It is also important to start developing the trust and confidence of the parties and counsel, and start managing expectations, along with making sure that all the practical requirements concerning date, time and venue are in place.

Treat each mediation like it's your first

It is only too easy for mediators and counsel to fall into the irrational, but nonetheless real trap of thinking that because they have participated in mediations a hundred times before, somehow those new to the process will have picked up on that experience.
Therefore, care must be taken not to assume knowledge on the part of the parties and take shortcuts.
Cynicism and boredom also result from repetitiveness. They are undoubted enemies of successful mediation.

One solution to these problems is to keep putting yourself in the shoes of the parties. What do they know and what they are thinking and feeling? How does what is happening in the mediation seem to the parties?
Another solution to the problem of repetitiveness is to keep reminding yourself of the importance of the mediation to the parties and their loved ones. That will help you avoid devaluing the process as a result of familiarity with it.

Don't presume.

Lawyers often say that mediation produces surprising results. One reason for this is that presumptions turn out to be incorrect.
These presumptions take many forms: what you presumed would be difficult turns out to be easy, and what you presumed to be easy turns out to be difficult; what you presumed would take a short time takes a long time, and what you presumed would take a short time takes a long time; the person you presumed would stay calm gets upset and the person you presumed would get upset stays calm ... and so on.
Two particularly important presumptions are about reasonableness and flexibility. So often those who at first blush appear reasonable turn out to be unreasonable, and vice versa. And those who at first blush appear fixed in their resolve change their positions, while those who proclaim open-mindedness are the ones who prove to be rigid and uncompromising.

Two points arise from this.

Try not to make any presumptions. This will help you avoid being unduly optimistic on the one hand or unduly pessimistic on the other hand, each with its attendant dangers.
Second, don't articulate assumptions, because you may unwittingly alienate parties or remove settlement options. Thus, avoid statements containing assumptions, such as "Why didn't you do anything to help?" or "Fred will never agree to that." Instead you could ask "Did you do anything to help?" and "Do you think Fred will agree with you?"

Give it time and persevere

Another reason lawyers are often surprised with mediation outcomes is that during the course of the mediation the parties undergo a shift in their thinking and emotions. The parties begin to analyse the dispute through different lenses. They reconceptualize ("reframe") the dispute such that their erstwhile verisimilitudes fly out the window.
These changes partly result from the mediation process addressing the psychological blocks to settlement.1 These deeply entrenched traits common to us all are not easily overcome. Rational argument will not immediately suffice. It simply takes time for people to change their perspectives and positions.
Therefore, the key messages are, don't rush the mediation and persevere when resistance to settlement is encountered.

Stay calm and positive

Most mediations hit rough spots. Some mediation conferences are difficult from beginning to end. It may not be apparent how the mediation might possibly settle. Faced with such less than ideal situations, it is important that panic and despondency not set in. That will help no one.

My suggestions are fivefold.

  • First, don't presume that the mediation will not settle (see the above discussion about presumptions).
  • Second, if you are the mediator and are struggling, call on the assistance of counsel, and if you are counsel and are struggling, call on the assistance of the mediator.
  • Third, remind yourself that ultimately it is for the parties, not you to settle. If they really want to settle they will.
  • Fourth, remind yourself that the worst-case scenario is simply no settlement. All rights and remedies are reserved. The sky will not fall in should settlement not be achieved.
  • Fifth, remind yourself that most mediations do settle in the end, given time and perseverance.

Act fairly and with integrity at all times.

There are some things about which parties in mediation may be forgiving of mediators and counsel: an insensitive remark, interrupting a speaker, an error of fact etc.
But parties are completely unforgiving, and rightly so, of any actions or statements which are unethical or denote a lack of integrity.
Parties and opposing counsel have a finely attuned nose to unfairness. They will respond adversely when they detect it, usually to the detriment of the entire mediation.
Equally, parties and opposing counsel have a finely attuned nose for fairness. They will respond positively when they detect it, usually to the advantage of the entire mediation.
There are many reasons why mediators and counsel should be scrupulous in their conduct in each and every mediation conference. Suffice to say for these purposes, that unless mediators and counsel are fair and ethical and display integrity, they compromise not only the mediation they are in at the time, but all future mediations in which they might be involved.

The stakes may be high in mediation with powerful concomitant incentives to cut ethical corners, but they are never, never that high.

Endnote:
1 For a discussion about the most common psychological blocks to successful negotiations see HYPERLINK "If-only-humans-were-rational.html" www.nigeldunlop.co.nz/If-only-humans-were-rational.html

 

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Category: Mediation