Mediation skills and techniques [2 ed.] 9780409329698, 040932969X

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LexisNexis Skills Series Mediation — Skills and Techniques Second Edition

Laurence Boulle BA (Natal), LLB (Stellenbosch), LLM (London), PhD (Natal) Director, Mandela Institute, and Issy Wolfson Professor of Law, University of the Witwatersrand, Johannesburg Professor of Law, Bond University, Queensland

Nadja Alexander BA (Qld), LLB (Hons) (Qld), Dip Internat’l (Vienna), LLM (Tübingen), D juris (summa cum laude) (Tübingen) Director, Institute for Conflict Engagement and Resolution, and Professor of Law, Hong Kong Shue Yan University Adjunct Professor of Law, Murdoch University (WA) and Bond University (Qld), Honorary Research Fellow, University of the Witwatersrand, Johannesburg

LexisNexis Butterworths Australia

2012

AUSTRALIA

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UNITED LexisNexis UK, LONDON, EDINBURGH KINGDOM USA LexisNexis Group, New York, NEW YORK LexisNexis, Miamisburg, OHIO National Library of Australia Cataloguing-in-Publication entry Author: Title: Edition: ISBN: Notes: Subjects:

Boulle, Laurence. Mediation: Skills and techniques. 2nd edition. 9780409325782 (pbk). 9780409329698 (ebook). Includes index. Mediation — Dispute resoulution (law) — Conflict management.

Other Alexander, Nadja Authors/Contributors: Dewey Number: 347.09 © 2012 Reed International Books Australia Pty Limited trading as LexisNexis. First edition 2001. This book is copyright. Except as permitted under the Copyright Act 1968 (Cth), no part of this publication may be reproduced by any process, electronic or otherwise, without the specific written permission of the copyright owner. Neither may information be stored electronically in any form whatsoever without such permission. Inquiries should be addressed to the publishers. Typeset in Gill Sans and Bembo. Printed in Australia by Ligare Pty Ltd (NSW). Visit LexisNexis Butterworths at www.lexisnexis.com.au

PUBLISHERS’ NOTE The authors and publishers are grateful to the holders of copyright in material from which extracts appear in this work, particularly to the following:

Appendix 1 Mediation Clauses A. LEADR model clause LEADR — Association of Dispute Resolvers

Appendix 2 Standard Forms for Mediation Practice C. Information about mediation Dispute Resolution Centre at Bond University

Appendix 3 Finding a Mediator: Checklist for Parties and Advisers IMI — Finding the right mediator International Mediation Institute

Appendix 4 Agreements to Mediate and Confidentiality Agreements A. Law Society of NSW’s Agreement to Mediate Reproduced with the kind permission of the Law Society of New South Wales, Australia. ‘This information is intended for general

information only and is not a substitute for legal or other professional advice. The Law Society hereby expressly denies any liability for loss to any person who relies on this information.’ The Law Society and the authors of the publications do not accept any responsibility for the accuracy of the information or opinions contained in them. C. Sample Confidentiality Agreement Consumer and Business Services

Appendix 6 Mediation Standards and Guidelines A. Australian National Mediator Practice Standards Mediator Standards Board. Content is current as of 5 October. See Mediator Standards Board website for Approval and Practice Standards available at

B. Australian National Mediator Approval Standards Mediator Standards Board. Content is current as of 5 October. See Mediator Standards Board website for Approval and Practice Standards available at

C. Law Council of Australia Guidelines for Lawyers in Mediation Law Council of Australia

Appendix 7 Checklists for Competency, Feedback and Reflection A. LEADR Checklist — Competencies Under Assessment LEADR — Association of Dispute Resolvers B. Evaluation form for party or adviser Adapted from Boulle, Colatrella and Picchioni, Mediation Skills and

Techniques (US Edition, LexisNexis, 2008). While every care has been taken to establish and acknowledge copyright, the publishers tender their apologies for any accidental infringement. They would be pleased to come to a suitable arrangement with the rightful owners in each case.

LIST OF TABLES Table 1.1: Professional skills and mediation Table 1.2: What mediators do: Three categories Table 2.1: Separate prior contact Table 4.1: Disciplinary perspectives on a dispute Table 4.2: Four kinds of written preparation Table 4.3: Positions and interests for Edna and Barry Table 4.4: Causes of conflict Table 4.5: Possible conflict interventions Table 4.6: Positions, interests and issues Table 5.1: The mediation process Table 5.2: Issue identification Table 5.3: Directing the traffic or driving the bus? Table 5.4: Different types of meetings in mediation Table 5.5: Separate meetings: risks and how to deal with them Table 6.1: Cultural dimensions Table 6.2: Framing the discourse Table 6.3: The functions of reframing Table 6.4: Useful mediator reframes Table 6.5: Types of questions Table 7.1: Positional and interest-based negotiation Table 7.2: Remaining issues Table 10.1: Power used by mediating parties: from Wade (2007) Table 10.2: Dealing with the power issue Table 10.3: Dealing with duelling experts Table 10.4: Potential advantages and disadvantages of lawyers in mediation

Table 12.1 Requirements for National Mediator Accreditation Table 12.2: Features of goods and services Table 12.3: Mediation growth options

LIST OF FIGURES Figure 4.1: Three kinds of interests Figure 4.2: Maslow’s hierarchy of needs Figure 4.3: Conflict mapping grid Figure 4.4: Conflict mind-mapping Figure 4.5: Possibilities for mediation seating Figure 7.1: Positional bargaining I Figure 7.2: Positional bargaining II Figure 8.1: Simple decision tree analysis Figure 8.2: Abbreviated life goals visual Figure 10.1: Professional adviser roles in mediation This icon appears in the margin of the text wherever sections of the NMAS are quoted.

PREFACE This book examines the subject of mediation from the vantage of the mediator’s chair — it describes and illustrates the skills and techniques required of those occupying that chair in their conduct of the mediation process. The text is designed to introduce new mediators to the science and art of practice, and to provide experienced mediators with a revision of the basics and some new ideas for their work. Particular mediator interventions are illustrated with case studies, examples and samples, many of them drawn from the authors’ own experiences as mediators. The book makes particular efforts to link the various skills and techniques of mediators to relevant standards and ethical requirements, in particular those contained in the National Mediation Accreditation System and the Family Dispute Resolution Practitioners Regulations. Insofar as it deals predominantly with skills and techniques, it has been necessary to delve into some aspects of communication theory, negotiation dynamics and aspects of cognitive psychology to bring the insights of related disciplines to bear on the subject-matter. However, it remains in essence a practical book and does not deal with the extensive theory and principles of mediation in its diverse applications. In this respect it is a companion text to the more theoretical Mediation — Principles Process Practice (3rd ed, 2011) also published by LexisNexis Butterworths. As with all professional texts this book owes a great debt to many predecessors in the literature, both in Australia and abroad. Particular appreciation is expressed to the co-authors of the US version of this book, Michael Colatrella and Tony Piccione, and to the co-author of the UK version, Miryana Nesic. Thanks go to administrative and research assistants in different parts of the world, including Claire Wilson and William Yip in Hong Kong, Jenny Leo in Australia and Danielle Simmons-Duarte in South Africa.

The authors would like to express their gratitude to their families for their moral support during the protracted time of research and writing and to acknowledge each other’s distinct contributions, while accepting collective responsibility for the final product. Appreciation also goes to Serena Cubie, Kerry Paul, the team at LexisNexis Butterworths and editor Annabel Adair for assistance in the book’s production, from commissioning through to editing and publishing. This book is dedicated to Miryana Nesic, an international dispute resolution consultant and practitioner without peer. She was a professional friend of both authors and leftus far too prematurely. Nadja Alexander Laurence Boulle Hong Kong Johannesburg November 2011

ABBREVIATIONS ADR BATNA CP FDR FDRP FRC LBT MOS MSB NADRAC NMAS ODR OO PATNA PO RATNA RMAB RP WATNA ZOPA

Alternative Dispute Resolution Best alternative to a negotiated agreement Collaborative practice Family dispute resolution Family dispute resolution practitioner Family relationship counselling Lies, bluffs and tricks Mediator’s opening statement Mediator Standards Board National Alternative Dispute Resolution Advisory Council National Mediator Accreditation System Online Dispute Resolution Opening offer Preferred alternative to a negotiated agreement Preferred outcome Realistic alternative to a negotiated agreement Recognised Mediator Accreditation Body Resistance point Worst alternative to a negotiated agreement Zone of possible agreement

CONTENTS Publishers’ Note List of Tables List of Figures Preface Abbreviations

Chapter 1 This Book’s Approach to Mediation Skills and Techniques Introduction On Learning and Developing Mediation Skills Contents and Organisation of Subject-matter About Mediator Skills and Techniques Cultural Limitations Some Assumptions Indicators of Effective Mediation Classifying Things that Mediators Do Overview of a Mediation Mediator Learnings Tasks for New Mediators

Chapter 2 Intake, Screening and Other Preliminaries Introduction Entering the Dispute Contacting the Other Side Intake, Screening, Streaming Preliminary Conferences

Separate Prior Meetings with the Parties Authority to Settle Settling the Agreement to Mediate Preparatory Work for Parties and Advisers Preparatory Work for Team Negotiations Mediator Learnings Tasks for New Mediators

Chapter 3 Maintaining a Favourable Climate Introduction to the Mediator’s Role in ‘Climate Control’ Reasons for a Poor Climate The Trust Factor Managing Expectations Strategies for Improving the Climate Dealing with Intense Emotions Dealing with Criticism Overcoming Clients’ Fundamental Fears Preserving Face and Avoiding Loss of Face Mentalising Improving the Climate A Final Word on Authenticity Mediator Learnings Tasks for New Mediators

Chapter 4 Diagnosing, Defining, Designing Introduction Developing a Hypothesis Gathering Information Distinguishing between Positions and Interests Diagnosing the Dispute Defining Problems Appropriately: Identifying Issues or Questions Designing an Appropriate Form of Mediation Mediator Learnings Tasks for New Mediators

Chapter 5 Managing the Mediation Process Introduction A Six-stage Process The Mediator’s Opening Statement The Party Initial Statements Defining the Problem Discussion and Exploration of Issues in Joint Session Generating Options, Negotiation and Problem-solving The Separate Meetings Final Decision-making Recording the Decisions Closure Post-mediation Activities Variations in the Process Mediator Learnings Tasks for New Mediators

Chapter 6 Assisting the Communication Dynamics Introduction Communication and Culture When Communication Counts Basic Issues in Communication Communication Style and Terminology Non-verbal Communication in Mediation Effective Listening Reframing Appropriate Questioning Reiterating Paraphrasing Summarising Transitioning Note-taking Exchange of Information

Assigning Tasks Drafting Mediator Learnings Tasks for New Mediators

Chapter 7 Facilitating the Negotiations Introduction On Negotiation Generally Mediator’s Role in Negotiations Mediator’s Role in Positional Bargaining Mediator’s Role in Promoting Interest-based Bargaining Special Techniques in Negotiation Dealing With Impasses Different Methods of Performing These Functions Mediator Learnings Tasks for New Mediators

Chapter 8 Encouraging Settlement Introduction Sources of Mediator Power and Influence Categories of Encouragement to Settle Risk Assessment Methods and Styles of Encouraging Settlement Using Power to Encourage Settlement: Some Illustrations Dangers in Encouraging Settlement To Intervene or Not to Intervene Mediator Learnings Tasks for New Mediators

Chapter 9 Variations in the Mediation Process Introduction Multiple Meetings Shuttle Mediation

Using More Than One Mediator Mediation by Telephone Conference Online Mediation Blended Processes — Multiple Roles for Mediators Other Variations in the Mediation Process Mediator Learnings Tasks for New Mediators

Chapter 10 Special Issues in Mediation Introduction Dealing With the Power Issue Dealing With Violence Using Interpreters in Mediation Dealing With Proposed Settlements ‘Outside the Range’ Dealing With Absent Parties Involving Children in Mediation Dealing With Experts in Mediation Dealing With Professional Advisers Dealing With Complex Multi-party Disputes Terminating Mediation Without Agreement Mediator Learnings Tasks for New Mediators

Chapter 11 Avoiding Mediator Traps Introduction Unrealistic Expectations Losing Impartiality Dominating the Process Losing Control of the Process Ignoring Emotions Moving to Solutions Too Quickly Pushing the Parties Assuming a Differing Professional Role Being Unprepared Allowing Agreements to be Left Undocumented

Ignoring External Parties Mediator Learnings Tasks for New Mediators

Chapter 12 Developing a Practice and Practising Mediation Introduction Developing Mediator Credentials Infrastructure and Resources Marketing Mediation Securing Referrals Standards and Ethics Growth Options for Mediation Services Other Practice Matters Conclusion Mediator Learnings Tasks for New Mediators

Appendix 1 Mediation Clauses Mediation Clauses

Appendix 2 Standard Forms for Mediation Practice A. Covering Letter B. Information about the mediator C. Information about mediation

Appendix 3 Finding a Mediator: Checklist for Parties and Advisers IMI — Finding the right mediator

Appendix 4 Agreements to Mediate and Confidentiality Agreements A. Law Society of NSW’s Agreement to Mediate B. Agreement to Mediate C. Sample Confidentiality Agreement

Appendix 5 Mediated Agreements A. Commercial dispute B. Family dispute (interim) C. Community dispute

Appendix 6 Mediation Standards and Guidelines A. Australian National Mediator Practice Standards B. Australian National Mediator Approval Standards C. Law Council of Australia Guidelines for Lawyers in Mediations

Appendix 7 Checklists for Competency, Feedback and Reflection A. LEADR checklist — Competencies Under Assessment B. Evaluation Form for Party or Adviser

Appendix 8 ODR Providers Bibliography Index

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CHAPTER 1

This Book’s Approach to Mediation Skills and Techniques Introduction On Learning and Developing Mediation Skills Contents and Organisation of Subject-matter About Mediator Skills and Techniques Cultural Limitations Some Assumptions Indicators of Effective Mediation Classifying Things that Mediators Do Overview of a Mediation Mediator Learnings Tasks for New Mediators

Introduction Defining mediation 1.1 Mediation in its various forms and styles is developing rapidly as a dynamic and multi-faceted practice in Australia and elsewhere in the world. It is recognised for its flexibility, adaptability and applicability in many different dispute situations. In the context of these developments this book operates with a model of mediation which includes all forms of decision-making in which the parties are assisted by someone external to the conflict — the mediator — who cannot

make binding decisions for them, but assists their decision-making in various ways. It can be contrasted with those forms of [page 2] dispute resolution in which external interveners are the formal decision-makers for parties, such as arbitration, adjudication, expert determination and court proceedings. 1.2 The process referred to above is known in different settings as mediation, conciliation, facilitation or assisted decision-making, and the interveners are known as mediators, conciliators, facilitators, intermediaries, go-betweens, peace-makers, brokers, and the like. No attempt is made to distinguish among these processes and functionaries. Even if valid distinctions could be made, the core mediation skills and techniques dealt with here are potentially applicable to all of them. For extensive discussion of definitional matters see Boulle (2011: 12-42). The skills and techniques which mediators use in their formal and informal roles as helpers, facilitators and supporters of decisionmaking are the subject-matter of this book.

Basic terms in dispute resolution 1.3 Categories of dispute resolution process: Transformative processes: in which interveners assist conflicted parties to engage in dialogue with a view to deepening mutual recognition and understanding and improving the way they are able to relate to one another. These processes include some forms of mediation and facilitation and other dialogue-based processes such as open space technology: see . Facilitative processes: in which interveners assist in the management and conduct of a process of resolving disputes between parties, while affording them wide latitude to make their own decisions, for example mediation, facilitation and some forms

of conciliation. Advisory processes: in which interveners may provide advice as to the facts, evidence and law, and sometimes on possible outcomes for disputes, for example neutral evaluation, case appraisal and expert appraisal, and some forms of statutory conciliation. Determinative processes: in which interveners make determinations to resolve disputes, which are potentially binding and enforceable on the parties, for example arbitration, adjudication and expert determination. As a matter of definition, mediation falls within the category of facilitative processes, but in practice it can have advisory and transformative aspects. Mediation can also form part of blended processes. Blended processes, also known as hybrids, involve two or more of the above process categories such as facilitative and determinative, or transformative and advisory. Med-arb is a widespread blended process which involves first attempting to mediate a dispute and, to the extent that no agreement is reached, submitting the outstanding issues to arbitration. The National Alternative Dispute Resolution Advisory Council (NADRAC) has published a set of definitions for these and other dispute resolution processes available at . [page 3]

On Learning and Developing Mediation Skills 1.4 A book on ‘mediation skills’ makes a simple, but not uncontroversial, assumption — mediation skills and techniques can be learned, developed, assessed and improved. This is the assumption behind much mediation training in Australia, which usually comprises four- or five-day workshops followed by skills assessment in compliance with requirements such as those in the Approval Standards of the National Mediator Accreditation System: see Appendix 6B. This is also the assumption behind mediation skills

courses being taught in many universities, colleges, schools and other educational and professional institutions, and behind books such as this. In reality, of course, many mediation figures in history have undertaken no formal training and received no accreditation as mediators, but have nevertheless been remarkable individuals with particular dispute resolution talents, such as Mahatma Gandhi, Nelson Mandela and Mrs Jones down the street. In some cultures, mediators owe their positions to their age, experience, status, leadership qualities and other endowed characteristics, as opposed to their attendance at the mediation workshops of one of various training organisations. Sometimes these mediators are called informal or intuitive mediators, as opposed to formally accredited mediators. There are therefore many precedents for mediators who have not learned their craft in a formal and systemised way, nor availed themselves of refined skills books on the subject. This work, however, is not based on the view that mediation is a mystical art and that mediators are born and not made. Some of the required attributes of mediators do derive from personality traits, interpersonal skills and other innate characteristics. In addition mediation is a flexible process with much scope for individual creative input (and sound common sense) by mediators. But these factors are neither sufficient in themselves for successful mediation, nor is their absence necessarily fatal to the development of mediation skills. This is because mediation comprises a distinct procedure and a set of skills and techniques, which can be understood ‘scientifically’, analysed, learned, practised and improved. It is of course true that some people do appear to be naturally good at helping others resolve disputes. But just as those who are naturally good at caring for ill people require training and education to practise in health services, so too do those who are naturally good at dispute resolution. Thus mediation is both an art and a science. This book focuses mainly on the science of mediation, while also identifying opportunities in which the art can shine. No gain without pain

Mastery of any skills comes with study, practice and hard work. Michelangelo once stated: ‘If people knew how hard I had to work to gain my mastery, it wouldn’t seem wonderful at all.’ Recent advances in science support the great Italian artist’s point, namely that superior performance, and even genius, has as much to do with how much effort we put into developing a particular

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skill as it does with the natural aptitudes with which we are born: Ericsson, International Symposium on Performance Science, 2009. 1.5 There are several differences in how people learn new skills and techniques. Some learn best cognitively, that is by absorbing intellectually information provided in written, oral or digital form before applying it in concrete situations. Others learn best visually and through observation, that is through seeing others perform the particular skills and modelling their behaviours on what they have witnessed. And others learn best through doing, that is by practising the skills clinically or in simulation environments and reflecting critically on their performance. A written text such as this accommodates mainly the first form of learning, and to some extent the third in the tasks for new mediators at the end of each chapter, and it needs to be supplemented by observation, practice and other experiential learning methods. In this respect the book provides a tool for reflective practitioners of mediation who can evaluate and reflect on their experiences in the light of the structures and suggestions it offers. There is also a misconception that simply gaining experience in conducting mediations is sufficient to become a quality mediator. It is not. While performing a task repetitively can lead to some increased

aptitude initially, and is likely to increase mediator confidence, it might result in neither expertise nor mastery. For example most of us drive cars every day, but do we get much better at it simply because we have had more practice doing it? For most adults who have been driving for years, our driving-skill level is about the same this year as it was last year. Why? Once we become comfortable on the road, we drive as if we are on autopilot in our comfort zones and do not actively seek to improve our knowledge and skills. Consider for a moment people who are considered poor drivers and who drive their cars every day blissfully unaware of the frustration they are causing others on the road. Without constructive feedback from outsiders, the acquisition of new knowledge and techniques, and ongoing self-reflection, they will not become better, just more confident and condemned to continue poor driving habits. In other words experience does not equate to expertise. It is the same for any skill set, whether required in golf or playing poker, dancing or mediation. Scientific findings suggest that superior practitioners of a skill such as mediation ‘develop the capacity to break down [their] experience into multiple components and work on each of those separately’: Restak (2003) and Ericson (2009). This book breaks down the general skill of mediation into its component micro-skills, such as active listening, summarising, reframing and reality testing. Some of the micro-skills will come easily to you, and others will be more challenging. You will need to identify those micro-skills that you need to work on the most. Identifying micro-skills is the starting point for reflective learning, a technique that blends experience with structured reflection on the quality [page 5] of that experience. The process of reflective learning in mediation practice could look something like this (see Schön (1987)): A situation arises in mediation to which a mediator brings a routine

set of responses. These responses produce an unexpected outcome that does not fit the mediator’s categories of knowing. The unexpectedness leads to curiosity and reflection about what happened and the mediator’s own reaction to it. Critical thinking follows as the mediator considers how the situation arose and how to address it if it should arise again. Reflection gives rise to on-the-spot experimentation. Subsequently the mediator reflects on both the on-the-spot experimenting during mediation and what the experience demonstrated about the usefulness or limitations of his or her hypotheses. Reflecting and responding in this way, especially when mediations are challenging, is not easy. It sometimes takes enormous personal resources to remain centred and calm in the midst of a storm. Building reflective learning into your mediation practice will improve performance and help you become better at the general skill of mediation. For more on being a reflective practitioner see Alexander and Howieson (2010: 12-15).

Contents and Organisation of Subject-matter 1.6 Knowledge, skills and ethics are all required for the formal practice of mediation, and this book deals predominantly with the skills element. Even here some choices have been made as regards subject-matter. The chapters deal with most of the accepted aspects of a mediator’s role and highlight four particular areas, which reflect the authors’ practical experiences and academic interests in mediation practice: 1. The mediator’s role in using their understanding of conflict in diagnosing, explaining and normalising the predictable features in the life cycle of disputes: see Chapter 4 (4.19-4.28). 2. The importance of creating the best possible climate for parties in dispute by preparing them and any representatives for the process. Also important here is the need to put parties at ease,

help them to be less defensive, assist them to trust the process and encourage them to take risks in problem-solving which they might not otherwise take: see Chapter 3 (3.12-3.15). 3. The mediator’s role in shaping culturally appropriate mediation processes and using mediator micro-skills in culturally fluent manners. 4. The mediator’s role as a facilitator of negotiation. In our view this function has been undervalued in many manuals, training workshops [page 6] and in much of the serious literature, particularly in regard to the mediator’s role in distributive bargaining: see Chapter 7 (7.19). As regards the organisation of the material, the book is based on the reality that mediation is not always a linear process moving from station A to station Z, and all stops in between. Problem-solving, negotiation and decision-making are often recursive processes which defy neat attempts to progress them through sequential stages. If the methodology of the natural sciences is sometimes serendipitous, accidentally stumbling on important discoveries while looking for something else, then so too must be the methodology of human sciences such as mediation. Although Chapter 5 (5.2) refers to the six stages of mediation, most of the remainder of the book acknowledges in its presentation the serendipitous nature of mediation and the reality that it is not a predictable linear process.

About Mediator Skills and Techniques 1.7 In practice there are many different models of mediation, areas of mediation practice and styles of mediator behaviour. Mediation can also be used for various different purposes: to settle disputes, define problems or disputes, prevent or manage conflict, negotiate contracts, and formulate policy and standards. There are core mediation skills and techniques relevant to the practice of mediation in most contexts,

and situational skills and techniques relevant to specific situations, for example family, commercial or international diplomatic conflicts. This book focuses predominantly on the core skills and techniques of mediation, with occasional references to the situational. Here it is important to acknowledge that many features of mediation are common to other problem-solving processes involving managers, arbitrators, judges, counsellors, parents and many categories of skilled helpers. Viewed individually, none of the mediation skills and techniques is unique, but their combination, organisation and interrelation create a unique process we recognise as mediation. The skills also provide some challenges in their application. For example there is great subtlety in assisting others to communicate and negotiate well, as opposed to being a good communicator or negotiator oneself. Likewise there are sometimes only subtle differences between assisting others to make decisions and making decisions for them. 1.8 In terms of its readership, the book assumes no or little experience in mediation practice or prior mediation training and education, although some of its suggestions are a little beyond what might be expected in a ‘beginners only’ manual. More experienced mediators might be frustrated by its seemingly pedantic dedication to the basics, but they should remember that sound basics provide for sophisticated practice. In our experience ‘advanced’ mediation training courses reflect the need among practising mediators to undertake a healthy revision of the ‘fundamentals’. In terms of how these skills might relate to a reader’s existing skills, it is worth observing that mediation is seldom a primary qualification or [page 7] occupation and most beginner mediators will have skills and techniques deriving from other education, qualifications and experience. Some skills developed in ‘disciplines of origin’ can be readily and appropriately transposed to the mediation process, for example active listening, appropriate questioning and plain language

drafting. However, for all prospective mediators other skills will have to be developed in addition to existing skills — these will depend in each case on the prior training and experience of the individuals concerned. For some prospective mediators their prior training and experience may necessitate some ‘deskilling’, in the sense of consciously unlearning existing skills and attitudes and replacing them with those more appropriate for mediation. For example experienced lawyers have the ability to reduce complex arrays of factual circumstances to a narrow set of issues relevant to legal advocacy and adjudication. This tendency needs to be subordinated in mediation and replaced with a broad party-centred notion of relevance. Likewise, psychologists may have developed high-level skills in exploring parties’ deep-rooted intrapsychic conflict, which may be an inappropriate technique in mediation. In each case the inherited skill or attitude needs to be removed from a prospective mediator’s ‘toolbox’ of skills and techniques. 1.9 It is never easy to say where mediation skills begin and end as they are closely related to many other social and professional skills. This is illustrated in the following table: Table 1.1: Professional skills and mediation Category of social or Example professional skill Starting at the beginning Innate common sense Communicating clearly Easing awkward situations with Generic in many social humour circumstances Using appropriate words and language Common among professional Organising data systematically skilled helpers Drafting agreements in Defining issues neutrally and mutually Managing unrealistic Specific, though not unique, to expectations

mediators

Negotiation coaching Conducting reality testing Facilitating conditional linked bargaining

Cultural Limitations 1.10 In one sense effective mediation always involves facilitating dialogue and problem-solving with an awareness of cultural differences and using intervention skills that are culturally fluent. Here ‘cultural’ is used in a broad sense to refer to the sometimes nonarticulated understandings that [page 8] identify groups of people and animate and inform group consciousness. Cultural differences may be based on class, gender, ethnicity, national origin, professional background, geography, and the like (football club included). The core process of mediation described here might have something of value for people with widely varying cultural attributes. However, the practical application of mediation skills and techniques is not culturally neutral. In particular, factors of ethnicity, education and class render problematic any broad generalisations about skills and techniques since many of them are culturally derived and circumscribed. Cultural differences may be factors in the following issues relevant to the mediation process: Language and verbal communication. Body language and non-verbal communication. Attitudes towards physical space and personal boundaries. Approaches to time and its management. Approaches to problem-solving and negotiation. Attitudes towards privacy and involvement of third parties. Acceptance of compromise and concession.

Relationship values. Status and involvement of lawyers and other professional advisers. 1.11 In this work the mediator skills and techniques explored are based on the predominant culture of Australian society. Although this culture is partly shared by many other inhabitants of the globe, no assumptions can be made as to the universal applicability of any particular skill or technique. The topic of mediators’ responsibilities in relation to culture is further considered in Chapter 6: see 6.3.

Some Assumptions Assumptions about mediation 1.12 Although this book does not enter the definitional debate on mediation, it is important to disclose some of our assumptions about the mediation process. The first assumption is that mediation is a process of practical decision-making. It sometimes resolves disputes, it sometimes confines them, it sometimes defines them more clearly, but it always provides opportunities for making choices and decisions, even if at the end of the day the only decision made is to submit the dispute to a court, the boss, an international tribunal or some other authoritative decision-maker. We tell parties at the commencement of mediation that ‘… we are here so that you can make decisions on the issues affecting you …’, not that ‘we are here to resolve your disputes …’. Later in the course of a mediation we suggest that the parties should consider making choices from the (sometimes limited) range of options which have emerged. [page 9] Part of the mediator’s function in reality testing is to help parties identify options that are realistic and feasible, and to ask them to make practical choices in the light of them. As indicated previously, the

choice may involve using another dispute resolution system. Mediation is often about practical and pragmatic decision-making over compensation, work conditions, children or over-hanging trees which people require in order to get on with their lives. Parties should not come to mediation principally for counselling, therapy or advice. However, there are mediation services that offer the process as a source of self-awareness, empowerment, forgiveness and reconciliation. Such expectations can be too high for many disputants, many disputes, and many mediation services. High aspirations can also be burdensome for volunteers mediating neighbourhood disputes in draughty community halls, or for hard-pressed conciliators in statutory schemes with daily piles of new files. The skills and techniques from other disciplines associated with the higher aspirations are not dealt with in this text. 1.13 A second assumption is that mediation should be primarily a process-based system, that is one with certain indispensable core procedures, regardless of the particular circumstances of a dispute. The emphasis on process operates at two levels. First, it implies that, as a matter of fact, a mediator takes the parties through a recognised analytical process which assists them make decisions but does not make decisions for them. Second, it implies a normative element, namely that it is better for parties to make their own decisions through a systematic decision-making process than it is to have decisions imposed on them. In this context mediators will not necessarily have done a good job merely because parties reached settlement. Conversely, failure to reach settlement will not necessarily mean that mediators have not conducted the process satisfactorily and that parties will not have derived benefits from it. This might sound somewhat unworldly, but then mediation is as entitled to its wellreasoned premises as any other pursuit. 1.14 A third assumption is that an understanding of conflict is important for all mediators. There is increasing knowledge about many aspects of conflict: its sources, the ways in which it escalates and deescalates, strategies for dealing with it, methods through which it can be managed and resolved, and predictable problems in its resolution. Knowledge in these areas not only assists mediators in terms of their

choices of interventions, but also enables them to inform and educate parties about normal patterns of conflict and ways of responding to them. Mediators, the early barbers? Here a comparison can be made with the development of surgery as a profession. The original surgeons were seventeenth century barbers who performed all manner of procedures on the human body without any detailed understanding of internal anatomy. It took centuries of dissection,

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investigation and grave-robbing to find obliging corpses, before surgeons were able to base their surgical procedures on a scientific understanding of internal anatomy. Mediators might have to undergo similar developments in relation to conflict, which is the ‘anatomy’ counterpart in dispute resolution, before they are able to conduct themselves with full understanding, and even then never to the same scientific extent as surgeons. Dispute resolution, after all, is a human and not a scientific endeavour. (And even in medical science the red pills are known to work better than the pink ones.)

Assumptions about conflict 1.15 The mediation process is based on various assumptions about conflict and its treatment. These assumptions are not unique or exclusive to mediation but they are consistent with its theoretical assumptions: they are set out in 1.16-1.20 below.

Conflict is not necessarily a negative phenomenon 1.16 In mediation conflict is seen as a fact of life which, if it is handled constructively, can have positive benefits for the parties. It can provide opportunities for introspection, review and renewal, for the restoration of personal and business relationships, and for establishing new patterns and arrangements for the future: Boulle (2011: 62-71).

The expression of conflict is not necessarily unproductive 1.17 Skilled mediators tend to ‘allow’ parties’ conflict to manifest itself by not inhibiting them from articulating it. Here the assumption is that mediation should allow for the expression of feelings and emotions associated with conflict, such as anger, frustration, betrayal and lack of acknowledgment, subject to parties adhering to the mediation guidelines (see 5.6, 5.8) and not causing damage to others. In other words, the expression of negative emotions is not seen as problematic for dispute resolution in the mediation environment: see further 3.293.31. Case illustration: How an outburst of emotion helped pave the way for rational discussions There had been a five-year conflict in a large technology corporation involving two senior divisional managers, Lola who had been with the company for 15 years and Stanley who joined five years previously. Lola and Stanley had never got on well, the conflict dating back to one month after the latter had commenced work. Their supervisor, Ian, had initially responded to the situation by ignoring it in the hope that it would go away. The two managers had tried to deal with their differences during the first year, and had then not spoken to each other for four years apart from minimalist exchanges at formal meetings. Day-to-day

communication was channelled

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through divisional team members. Several months before the mediation Ian, at the instruction of his line manager, had restructured the two divisions to minimise their overall contact. However, this had resulted in tension between the two divisions and it had negative impacts on the leadership credibility of both Lola and Stanley, with team members discussing the situation on Facebook. At the mediation there was an outburst of frustration, anger and bewilderment from both senior managers, much of it directed at Ian and his line manager. The mediator allowed this to continue for some time, using appropriate reflective listening and periodically checking that all mediation participants were still engaged. The mediator then summarised the feelings expressed by both parties and used this summary as a basis for moving forward. When the time came for the two managers to talk about their own differences, they were still emotional but much calmer and more reflective. The mediation thus allowed unexpressed conflict to be articulated and helped the parties move into a more constructive space for talking through their issues.

It is helpful to educate parties about conflict 1.18 It is empowering for parties in dispute to have conflict normalised by being educated about its nature and dynamics. Thus they can be informed about the normal causes of conflict and be asked to consider the causes of their particular dispute. Their difficulty in making choices can be normalised as a common reality for parties in conflict, as can the ‘loss of face’ problems towards the end of a mediation where each

side feels that it has conceded too much and is reluctant to make the final concession: see 7.76. How and when this education takes place is a matter for a mediator’s discretion, for example some could occur before mediation with the parties separately, some in joint sessions with the parties together, and some in separate sessions, according to the circumstances and dynamics of the conflict.

Conflicts transform and are seldom static 1.19 Unlike Uluru, conflict does not remain immutable over time. Often it escalates beyond its original scope because of the kinds of factors referred to in Chapter 3: see 3.4. When a conflict escalates it typically comes to involve more issues, greater complexity and intensity, and often more individuals or groups. Conversely, conflict can also deescalate over time because it is constructively handled on all sides, there is effective intervention by outsiders, or some participants get worn out and move on to more interesting endeavours. Mediation operates in awareness of the transformative nature of conflict.

Conflict can be diagnosed and defined 1.20 Finally, mediation is based on assumptions that conflict can be diagnosed and that it should be appropriately defined before attempts are made to resolve it. These matters are dealt with in more detail in Chapter 4. [page 12]

Indicators of Effective Mediation 1.21 Mediation is often assessed in terms of a single factor only, namely whether or not parties reached settlement, regardless of the way in which it was reached or the quality of the outcome. While a measure of outcome effectiveness is obviously important, there is a

wider range of indicators of competent and effective mediation. By way of example, mediation could be assessed in terms of the following: Process: the extent to which parties are satisfied with a mediator’s conduct of the mediation and their subjective experience of the process, its inclusiveness and its fairness. Efficiency: the extent to which the mediation process is cost- and time-effective and maximises the value of outcomes. Empowerment: the extent to which a mediation educates parties about constructive problem-solving and equips them to deal on their own with disputes in the future. Outcome: the extent to which mediation achieves a settlement outcome. Durability: the extent to which a mediation outcome endures over time. Relationship: the extent to which the mediation process increases understanding and improves the relationship between the parties. Effectiveness: the extent to which the mediation achieves parties’ particular goals, such as a durable settlement outcome, an ongoing working relationship or any other of the above-mentioned factors. While these, and other, indicators cannot be analysed further in this book, they constitute some of the standards by which mediator competence and mediation effectiveness can be assessed. Essentially they indicate that mediators should resist being assessed in terms of the single quantitative indicator of whether they achieved settlements and rather in terms of the pluralistic indicators referred to above.

Classifying Things that Mediators Do A note on terms 1.22 Those who are directly involved in a dispute are referred to in this book as ‘parties’. Sometimes they are referred to as mediation ‘clients’. The term ‘participants’ refers to all those who attend a

mediation meeting, apart from the mediator. Participants may include parties, legal advisers, other professional advisers, experts, translators, supporters, observers, and so on. As regards mediators, the things they do in mediation can be reflected in three categories. [page 13] Table 1.2: What mediators do: Three categories Term Meaning The high-level categories of things that mediators do, Functions of for example creating a good environment for dispute mediators resolution, improving communication between parties and facilitating the negotiations. ‘Technique’ and ‘skill’ are used interchangeably to refer to concrete acts and interventions by mediators, Techniques such as arranging the seating, acknowledging and skills of wounded feelings, summarising, reframing and mediators warning about certain negotiation tactics. It is through these skills and techniques that mediators come to perform their various functions. A term used for a combination or sequence of Interventions techniques and skills used by a mediator, for example by mediators their way of responding to high conflict or facilitating a risk analysis by the parties.

The mediator’s toolbox 1.23 There are many skills and techniques employed by mediators — sometimes referred to as a toolbox of skills — and an almost limitless number of interventions. Mediation is an intricate set of manoeuvres involving at least three persons, and often more, and mediators initiate and react, retreat and adapt. This requires knowledge, judgment,

intuition, trial and error, and occasional lucky breaks. Mediator interventions can be categorised as either general or contingent in nature. Interventions are general if they are made in all mediations, for example explaining the system to parties and providing structure and process management. They are contingent when made only in specific situations, for example shuttling messages between participants or inviting professional advisers to discuss particular issues. Similarly, mediator interventions can be categorised as either primary, that is made by the mediator as a matter of course, or reactive, that is specific responses to situations or dilemmas arising in the course of the mediation.

Four mediator functions 1.24 As far as their functions are concerned, it is assumed in this work that all mediator interventions can be brought within the four categories of functions, discussed below: see 1.25-1.28.

Creating favourable conditions for the parties 1.25 Mediators can contribute to the resolution of problems or disputes by creating favourable conditions for their treatment. As (usually) independent [page 14] outsiders with expertise in the nature of conflict and its management, they can undertake things which the parties, and their advisers, are unable to do on their own. There are at least three ways in which mediators can contribute towards a favourable climate for decisionmaking and dispute resolution: 1. Procedural framework: controlling the proceedings, establishing

basic ground rules, monitoring behaviour, accommodating equal air time for all participants, allowing for necessary adjournments, setting parameters for the role of professional advisers, and otherwise providing a framework for process management, impartiality and security. This aspect is dealt with mainly in Chapter 5 and variations to the procedural framework are addressed in Chapter 9. 2. Physical environment: mediators can provide appropriate physical environments for dispute resolution processes, in terms of neutral venues, accessible buildings, adequate meeting rooms and amenities, and other physical facilities which provide convenience, security and symbolically appropriate seating for decision-making and problem-solving. This aspect is dealt with mainly in Chapters 2 and 4. 3. Emotional environment: mediators can contribute to an appropriate emotional environment for parties in dispute by providing a person and process in which they can trust, by ensuring an absence of threats, aggression and intimidating behaviour, by contributing an aura of impartiality, by reducing defensiveness, and by otherwise providing a hospitable emotional climate for decision-making and problem-solving. This aspect is dealt with mainly in Chapter 3.

Assisting the parties to communicate 1.26 Parties in conflict tend not to communicate accurately, comprehensively or constructively. Mediators can contribute positively to communication dynamics by modelling good speaking and listening skills, ensuring clarity and accuracy in language used, being attentive to the non-verbal messages of parties, engaging in appropriate questioning, making use of visual communications, reframing and summarising what the parties say, and otherwise attending to communication factors which contribute to good decision-making and problem-solving. This function is dealt with mainly in Chapter 6.

Facilitating the parties’ negotiations

1.27 As experts in negotiation, mediators can contribute to parties’ negotiating endeavours so as to make them more constructive, interest-driven, efficient and otherwise productive. Mediators accomplish this by ensuring that their clients prepare for their negotiating roles, by focusing on parties’ needs and interests, by preventing premature offers or rejections of offers, by educating parties about good negotiation practice, by coaching parties in separate sessions on how to negotiate, by assisting parties with brainstorming and packaging agreements, and by otherwise facilitating [page 15] negotiation processes which are positive and productive. This aspect is dealt with mainly in Chapter 7.

Encouraging settlement 1.28 This is a controversial aspect of the mediator’s role. For some disputants the mere presence of a mediator may influence them to moderate their behaviour and encourage them to come to a settlement they would not have reached without this presence. Thus passive ‘presence pressure’ to settle is a potential reality of all mediation situations. Among the active ways in which mediators can encourage settlement are by questioning parties about their realistic alternatives if they abandon mediation without settlement, creating doubt in each side’s mind, acting as the ‘agent of reality’, providing validation as parties make progression towards settlement, imposing deadlines, and being assertive in separate meetings. There is much debate about the appropriateness and ethics of the ways in which these functions are performed, but they are a reality of mediation practice. This aspect is dealt with mainly in Chapter 8.

Different kinds of mediation

1.29 The particular skills and techniques used by mediators will depend in part on which model of mediation they are providing to the parties. There are many different kinds of mediation and here it is convenient to refer to four models, each of which is associated with a different predominant form of mediator role: see Boulle (2011: 35-41). 1. Settlement mediation: The mediator encourages the parties to reach a point of compromise somewhere between their positional claims through various forms of persuasion, doubt creation and pressure, without any significant emphasis on the process of decision-making. 2. Facilitative mediation:The mediator conducts the mediation along strict procedural lines in order to define problems comprehensively, focus on parties’ needs and interests and attempt to develop creative solutions which the parties can apply to the problem. 3. Transformative mediation:The mediator assists parties to deal with the underlying causes of their conflict, with a view to the parties engaging in dialogue and being able to ‘transform’ the way they relate to each other as a basis for resolving the dispute. 4. Evaluative mediation:The mediator guides and advises the parties on the basis of his or her expertise with a view to their reaching a settlement which accords with their legal rights and obligations, industry norms, or other objective social standards. Other models which have been identified in the literature include wise counsel mediation, in which mediators offer ‘wise’ advice not based primarily on the technical or legal aspects of a case (as in evaluative mediation as described above), but on the mediator’s assessment of the parties’ commercial, [page 16] organisational, relational and other interests, both long term and short term. Another model, tradition-oriented mediation, is dialogue-based and draws in the relevant group, community, industry or system. It

may be used in highly structured or hierarchical systems, for example in certain religious institutions and in some indigenous settings. Both these models are described in Alexander (2008). The various terms of art used in the above descriptions are explained and illustrated in different parts of the book. It is important to note that few mediators can be neatly associated with a single form of mediation. Moreover, some mediations may begin in one mode, frequently facilitative, and be transformed subsequently to another, for example settlement or evaluative. As the model of mediation changes so too will the roles of the mediator. 1.30 While there is considerable latitude in the practice of mediation, and in the choice of models, some standardisation is provided in Australia by the National Mediator Accreditation System (NMAS). The NMAS is a voluntary system of national recognition for mediators operating on a basis of self-regulation by the Australian mediation profession. It comprises the Approval Standards, which contain the requirements for mediator accreditation and re-accreditation under the NMAS, and the Practice Standards, which contain the competency and ethical requirements binding on accredited mediators. The scheme is administered by the Mediator Standards Board which keeps a Register of nationally accredited mediators. Membership of the MSB is open to complying dispute resolution organisations and service-providers. The scheme has Recognised Mediator Accreditation Bodies (RMABs) which accredit and discipline individual mediators in terms of the NMAS requirements. Throughout the book the skills, competencies and ethics of mediators are linked back to the NMAS Approval and Practice Standards, both of which are reproduced in Appendix 6. As regards the models and forms of mediation, the NMAS unequivocally endorses a facilitative model: Approval Standards s 2(3) and Practice Standards s 2. Nationally accredited mediators must be mindful that they cannot move from facilitative to evaluative mediation without complying with specific requirements regarding informed consent of the parties and mediator professional indemnity insurance. These requirements are contained in the Approval Standards ss 2(4), 4(2) and 5(4) and Practice Standards ss 2(7), 3(4)(g)(i) and 10(5).

Overview of a Mediation 1.31 We tend to use only those recipe books that contain high resolution colour pictures of the object of our culinary clumsiness. This is particularly helpful where the dish is styled in a foreign language and we have had no prior exposure to the delicacy in question. A book on mediation is not to mediators what a recipe book is to cooks. This is because the human players in mediation do not have the objective [page 17] and standardised qualities of cooking ingredients. And even if this work were like a mediation recipe book, it would be difficult to provide a colour picture of the final product. Nevertheless for those entering the world of mediation it is sometimes frustrating that they cannot contemplate the overall product in high resolution, particularly where the process and skills are divided into 12 chapters with numerous sub-headings and numbered sections. Because of confidentiality constraints it is not easy to observe mediations, nor is this form of dispute resolution well represented in the media, or in drama or entertainment, although at the time of writing a TV series, Fairly Legal, features the adventures of mediator Kate Reid. Needless to say Kate does not always stick to the mediative script but it remains to be seen if Fairly Legal can do for mediation what Kath & Kim has done for backyard barbecues and suburban living. With this in mind, we present a short overview of an actual mediation. It is designed to give an overall feel of the process from start to finish, without of course being able to provide all the detail or human drama. It is analogous to the prologue by the chorus in ancient Greek plays, used to foreshadow the plot and themes in the drama to come. Here the story of a mediation is presented in plain English instead of ancient Greek, and without the technical terms, acronyms

and other jargon of mediation found in the remainder of the book. A mediation is presented A dispute between New Company (NC) and Experienced Consultancy Services Australia Ltd (ECS) has arisen in New South Wales. NC is headed by Vincent and funded by his silent partner Susan. Vincent is a young and ambitious entrepreneur who has identified a gap in the market for luxury wellness vacations, boutique spas and yoga retreats in New South Wales. In March Vincent, acting on behalf of NC, consulted with an advisory officer from ECS, prior to the purchase of a new development. NC intended to convert the development into a luxury wellness resort, which would be called Heavinn. ECS provided advice regarding the property purchase and the various insurances required. The resort was purchased for a total of $3 500 000, comprising $2 375 000 for land and development, $275 000 licence fee and $850 000 plant and equipment. ECS’s advisory officer advised NC to enter into a tailor-made insurance policy with BIG Insurance Co Ltd (BIG Insurance). Vincent was so impressed with the service received from ECS that he decided to purchase four other resorts, relying on their advice. Similar tailor-made insurance policies with BIG Insurance were secured in respect of the four other developments purchased by NC. Ten months later, in January the following year, an explosion occurred on the premises of Heavinn and the entire resort was destroyed by fire. BIG Insurance refused to compensate NC, contending that a valid claim had not arisen under the insurance policy. ECS claim that they materially assisted NC

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with making the claim against BIG Insurance. However, NC argues that ECS did not assist NC at the professional level expected in making such a claim. NC was further aggrieved that the claim could only eventually be settled for $1 000 000. On 21 June ECS filed a statement of claim in the District Court seeking payment of three invoices for services rendered to NC, amounting to $150 225. A defence was filed on 22 August disputing any amount beyond $23 000. ECS was informed in September that NC was also intending to file a cross-claim and, after initial tardiness, this occurred on 22 November. The cross-claim was in excess of $2 800 000 alleging, essentially, negligent advice in respect of NC’s insurance cover and settlement of its claim. After various other skirmishes, direction hearings were held the following April and the matter was referred to mediation. Both parties agreed on the identity of a mediator, following legal advice. The mediator arranged to meet each party, accompanied by their lawyer, separately prior to mediation. At this meeting the mediator provided each party with verbal and written information about the mediation process, including the role of the mediator and the rights and responsibilities of the clients. Each party was also presented with the Agreement to Mediate for perusal and signature. During discussions NC agreed to ‘give mediation a go’, and ECS indicated an intention to reach a commercial settlement because they were keen to avoid adverse publicity. The lawyers agreed to send the mediator copies of the litigation documents and to prepare a case summary and mediation memo. The mediator made arrangements with the lawyers regarding the venue, timing, identity of the participants, exchange of documents and other house-keeping matters. The mediation was held at the mediator’s office and started at 9:00 am on 24 April. NC was represented by Susan, Vincent and Vincent’s solicitor, and ECS by Derek, a company director Debbie, the Chief Executive of ECS, and in-house counsel. Both sides confirmed they had authority to settle. The parties were seated opposite each other at a formal boardroom table with their

representative by their side, and the mediator at the head of the table. The mediator opened the meeting by explaining the process, the scope of confidentiality, and the roles of the mediator, the parties and their lawyers, and by setting guidelines for the meeting. In-house counsel representing ECS raised a concern that the mediator and Vincent were acquainted since they lived in the same apartment complex, but agreed to proceed when it was pointed out that this issue was raised with NC and ECS upon selection of the mediator. The joint session commenced with an opening statement by Derek from ECS, followed by Vincent from NC. Derek acknowledged that the service provided did not meet the usual professional standards of ECS and expressed regret for the ensuing consequences to NC. Vincent and Susan accepted the apology. With the parties’ agreement, the mediator presented an agenda of items for discussion and the participants talked through the items one by one. NC relied on an independent insurance valuation report and a statement from the company accountant to support the monetary damages being claimed. ECS was critical of the reports and claimed that the valuation had

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been inflated to take advantage of the situation. For its part ECS was working on the basis of a detailed risk assessment instrument they had prepared for mediation. Derek and Debbie of ECS suggested alternative ways of meeting NC’s interests, in particular by providing future advice through a more senior consultant at discounted rates. NC expressed an interest in the suggestions but also argued that the company was in need of money for cash flow purposes and asked for $2 400 000 by way of financial settlement.

The joint meeting was adjourned to allow the mediator to speak with each side individually on a confidential basis. Derek and Debbie complained that Vincent and Susan were trying to exploit the situation, that NC had ‘squirreled away’ some of its profits and that the desperate financial position being presented did not reflect NC’s true financial position. ECS also indicated that they were eager to settle today as it was in-house counsel’s final day with the company and they could not remain at mediation beyond 16:00 because of other commitments. During their separate session Vincent and Susan complained that Derek and Debbie’s representatives were condescending and trying to do anything to avoid accepting blame for what they had done. Vincent stated that they should pay up or else he would go to every newspaper in Australia with the story. The joint session was resumed and there followed a series of joint and separate meetings between the participants and mediator. During these sessions the parties, advised by their lawyers, made a series of offers and counter-offers which brought them within the zone of agreement. There was an impasse over a difference of $75 000 and NC refused to consider the offer of new services from a senior consultant until this matter was resolved. It was now 13:00 and ECS became agitated and impatient, stating that they had to leave by 16:00. After a short lunch break, the parties resumed negotiations and at 14:45 NC offered to accept a settlement sum of $1 400 000, on the condition that payment was made within three days and that new senior consultancy services could be arranged. Finally the figure of $1 300 000 in addition to five days of consultancy free of charge from a senior consultant of ECS was agreed by both parties. Derek and Vincent shook hands across the table to symbolise their commitments. In-house counsel representing ECS produced a pre-drafted framework agreement, which NC’s solicitor agreed to use as a basis for the final settlement contract. The lawyers spent an hour reviewing the framework document together, adding in the figures, period for

payment and consultancy provisions. They also included a confidentiality clause and both parties signed the agreement. While the lawyers were drafting the settlement, the parties adjourned to the adjacent kitchen area for coffee and to discuss the consultancy arrangements. The parties verbally agreed that a senior consultant from ECS would contact NC to arrange an appointment for the services. The parties departed at 16:15 with final handshakes all round. The mediator followed up the matter with a phone call to each of the parties a few weeks later and was informed that there had been full compliance with the agreement and that they all regarded the matter to be fully settled.

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Mediator Learnings 1.32 This chapter highlights the following points for mediators: 1. Mediation skills and techniques are not only innate and inherent; they can be learned, practised and improved. 2. Everyday interpersonal skills, and the techniques developed in many professional contexts, provide a basis for developing mediation skills, but some of the prior skills and techniques will have to be adapted, and they will also need to be supplemented for practice as a mediator. 3. All mediation skills and techniques are limited to particular cultural conditions and none can be applied universally across all cultures. 4. There are a variety of ways to measure success in mediation apart from the single factor of whether a settlement was reached.

Tasks for New Mediators

1.33 Listen to or read some interviews with mediators or interview a person you know who is good at resolving disputes. Identify the particular skills and techniques which they have found helpful in their dispute resolution work. Which of these skills can be regarded as innate and which are more likely to be developed through education and reflective experience? Interviews and discussions about mediator skills can be found on websites such as and . For another kind of mediator see the interview with international ‘peace’ mediator Johann Galtung, at . 1.34 Write out a list of some of the skills and techniques for which lawyers (or another occupational group) are renowned. Which of these do you think would be suitable for mediation and which do you think would need to be adapted, supplemented or suppressed? 1.35 Most popular culture portrays parties in conflicts of various kinds. Observe a particular form of popular culture and identify the skills and techniques used in managing conflict, and identify what you regard as shortcomings in these areas.

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CHAPTER 2

Intake, Screening and Other Preliminaries Introduction Entering the Dispute Contacting the Other Side Intake, Screening, Streaming Preliminary Conferences Separate Prior Meetings with the Parties Authority to Settle Settling the Agreement to Mediate Preparatory Work for Parties and Advisers Preparatory Work for Team Negotiations Mediator Learnings Tasks for New Mediators

Introduction 2.1 This chapter addresses the roles and responsibilities of mediators in establishing the foundations for effective mediation. Mediators begin laying the foundations from the earliest stages of their involvement, and continue to strengthen and reinforce them until the final conclusion of the mediation. These early stages of mediation provide parties and lawyers with their first impressions of the mediator and of mediation and set the tone for the remainder of the process. Accordingly the importance of these early experiences cannot be

emphasised enough. [page 22] From the outset mediators need to be promoting the acceptability and legitimacy of themselves as mediators, developing the parties’ trust in the mediation process, and encouraging the parties to be open to problem-solving and decision-making and less defensive in relation to the dispute. These objectives remain throughout the mediation and are referred to again in Chapter 4. This chapter deals with the earliest stages of mediation, that is before the mediation meeting itself — entry into the dispute, contacting parties, intake and screening, preliminary conferences, preparation and education of the participants, authority to settle, and the Agreement to Mediate. The NMAS Practice Standards identify the knowledge area of ‘pre-mediation preparation, screening and intake’ and the skills associated with ‘intake and screening of both the parties and the dispute to assess suitability for mediation’ as essential to mediator competency: see s 7(3)(a)(iii) and (b)(ii). Accordingly the chapter seeks to identify the core skills involved at this early stage, and reference is made to variations in their practical application.

Entering the Dispute 2.2 The term ‘entering the dispute’ refers to the early involvement of mediators in the parties’ dispute. Mediators can enter disputes in various ways. In some situations they are selected by the parties or their advisers and in others they are appointed by a court, tribunal or agency, and there are many variations on these basic forms of entry. For example mediators may have cases referred to them by community service-providers, legal aid, social workers, counsellors, private law firms, or the human resources or in-house legal sections of corporate organisations. Alternatively, parties may seek out mediators themselves. In some institutional settings, mediators may be assigned or chosen from a roster. This often occurs where in-house mediators

are engaged, such as registrars in courts or internal mediators in organisations such as universities, community mediation centres, government departments or banks. In other instances parties will choose their mediator from a panel of externally accredited mediators or will seek out a mediator based on a personal recommendation. The NMAS Practice Standards s 3(1) refers to the variety of ways in which parties can come to mediation. It provides: The diversity in mediation practice means that there are considerable differences in terms of how participants enter into a mediation process. Where mediators are bound by existing professional or organisational requirements relating to entry into a mediation process and to the extent that such professional or organisational requirements contradict with the Practice Standards, the existing professional or organisational requirements should prevail.

Regardless of how mediators enter a dispute, they must accomplish certain specific tasks during the entry stage. These include: building personal, institutional and procedural credibility; establishing a rapport with the parties; [page 23] educating the parties and lawyers about the role of the mediator, the stages of mediation, relevant aspects of the negotiation process and costs associated with mediation; helping parties and lawyers prepare for mediation; designing the mediation process based on the clients’ conflict needs; and gaining a commitment to begin mediating. 2.3 In order to achieve these objectives, mediators should be attentive to the following: acting at all times in an impartial, non-partisan way and not becoming an advocate of either party, even in relation to the question of whether there is to be a mediation or not;

listening to, empathising with and establishing rapport with each party through good communication and interpersonal skills; promoting the credentials of mediation as a decision-making process, for example by referring to its benefits over other methods of dispute resolution, its success rates and its levels of user satisfaction; confirming their credentials as conflict managers and mediators, for example by referring to their training, experience and reputation in the field (see the NMAS Practice Standards s 10(6) on providing such information to parties upon request); explaining the appropriate roles of the mediator, the parties, their legal advisers and others who may be involved in mediation; preparing parties for a constructive negotiation experience, reminding them that the process allows them to participate actively and gives them ultimate responsibility for the outcome; and tailoring the mediation process based on dispute systems design principles: see Chapter 4. 2.4 In private mediations mediators are usually selected by the parties and the availability of resources allows for a structured entry into the dispute by the mediator, who can attend to the above activities and functions. Here mediators can make use of standard form letters to respond to queries about their services (see Appendix 2A), together with information about the mediator and question and answer type information about various aspects of the mediation process (see Appendix 2B and 2C). In many tribunal- and agency-based mediations, however, the parties are referred to the process whether or not they consent to it and there may be inadequate resources for a structured entry by the mediator. Where time, information and resources are restricted the mediator has limited scope for attending to the above activities and functions. However, even in a brief contact in the foyer or corridor, the mediator should give effect to as many of these entry matters as possible. [page 24]

The NMAS Practice Standards s 3(2) provides: Prior to the mediation taking place, the mediator will ensure that the participants have been provided with an explanation of the process and have had an opportunity to reach agreement about the way in which the process is to be conducted. …

Thus the Practice Standards identify these preliminary matters as essential for good practice while recognising many variations in the practice.

Some metaphors for explaining mediation to first-time users 2.5 Because many participants have never experienced mediation before and because this method of dispute resolution is not always easy to comprehend, mediators can make use of metaphors to explain the process during the entry stage and during the mediator’s opening statement: see 5.6-5.11. Here are some metaphors for explaining mediation and the mediator’s role. Their suitability will depend in particular on the personal attributes of the clients: ‘The mediator’s role is to direct the traffic, like a traffic officer, but the parties will be doing all the driving.’ ‘Mediation is like a jigsaw puzzle in which the mediator supervises the parties as they put all the pieces in place.’ ‘Think of the mediator as a director and the parties as the actors in a play in which the script has not yet been written.’ ‘Mediation is a sports field. The mediator is the coach: motivating, educating, training and testing the capacities of the players of the mediation game with a view to all players winning.’ ‘The mediator’s role is to guide the parties down the path of decision-making but which turns they actually take and how far they go depends on the parties.’ ‘The mediator conducts the flow of musical expression between members of the mediation orchestra with a view to creating harmony from friction.’ ‘The mediator’s role is like a taxi driver taking participants to the

destination of their choice irrespective of her view on the wisdom of this choice — because it’s the parties’ journey. The taxi driver typically determines the quickest route unless it is a cab charge customer in which case the scenic route is taken. Pushy customers may interfere in the routing.’

Contacting the Other Side 2.6 Sometimes a mediator or mediation service-provider is asked by one party to the dispute to approach the second party to obtain the latter’s agreement to mediate. Some mediators decline to undertake this task on the [page 25] grounds that they may be perceived as the agents of the initiating party and thereby lose their independence and impartiality before the mediation has begun. An alternative is for the mediator to recommend that the initiating party ask the second party to initiate contact with the mediator directly so that the contact is free from the intermediary role of the first party. Some dispute resolution agencies in community, family and tenancy disputes have specialised staff for this purpose and they are not involved subsequently as mediators. However, in many cases mediators undertake the function of inviting and getting the second party to the mediation table as part of their overall service. Some common-sense guidelines for the mediator’s approach to the second party follow: The approach to the second party should be diplomatic and tactful. Be mindful that the second party has not asked for your involvement. Disclose the nature and extent of your dealings with the first party to minimise any suspicion in regard to your role and to promote impartiality. Be transparent.

Do not overstate or exaggerate the virtues of mediation in informing and educating parties about it. Be careful about disclosing your knowledge of the substantive issues in dispute in case this breaches your confidentiality undertaking to the first party. This may require operating at a level of generality and avoiding any specific detail. Do not in any way appear to be taking the side of the initiating party or suggest that you have established a working alliance with them. Anticipate some resistance, ignorance or suspicion from the second party. Be sensitive to the second party’s need to consider the mediation option and offer sufficient reflection time. Set a time frame to allow the second party to make a decision about using mediation and remember to follow up. In attitude and style promote the legitimacy of mediation and the trustworthiness of the mediator. 2.7 Parties need to be educated about the mediation process so that they can make an informed commitment to it. The mediator or agency may use different forms of communication and education about mediation: telephonic conversations, printed or electronic information, DVDs, websites, social networking and face-to-face contact. On the client resource system and other resources which might be used for this purpose, see 12.22. Sample information, letters and mediator profiles are illustrated in Appendix 2. Inevitably, general guidelines on informing parties about mediation cannot anticipate all the complexities of this activity. For example where mediators [page 26] are approaching the second party, they will most likely have to disclose some information about the dispute and may be questioned about the initiating party’s motivations and goals. The same will apply when the mediator reverts to the initiating party. These matters should

be flagged up-front with both parties so that consent is obtained to discuss relevant matters and confidentiality obligations are not breached: see the NMAS Practice Standards s 6. Moreover, as Charlton and Dewdney (2004: 187) point out, those involved at this stage must resist the inclination to accept the first party’s story and regard them as all-righteous and the second party as the sinner. This situation may require the mediator to limit the amount of information received from the initiating party in the first place. Conversely, persistent questioning by the second party might require the mediator to advise that the ‘normal policy’ is to provide the same preliminary information to both parties during the entry stage.

What if the other side says no? 2.8 If the other side says no to mediation their choice should be respected. However, an initial refusal by the second party to mediate should not always be taken at face value; it may be motivated by a desire not to show weakness, or the need to take time out for advice, or a reluctance to pay the mediator’s fee. As in other aspects of mediation some probing and persistence may be necessary. The appropriate problem-solving reaction to a negative response is to diagnose the reason for it. If you feel that the choice is based on ignorance, unfounded suspicion or prejudice, there are a number of things you can do. Mediators should aim for small behavioural steps in the face of intransigence; for example asking whether the party would agree to having a package of mediation material sent to them, or whether the party would agree to being contacted again in a week’s time, or even attend a ‘short information session’. In litigation matters another approach involves outlining to the party the risks and costs associated with the matter proceeding to court. 2.9 Where the law requires that parties take genuine or reasonable pre-litigation steps to resolve their disputes (such as the Civil Dispute Resolution Act 2011 (Cth)), it may be helpful to remind parties that mediation is one way to comply with this rule. Similarly, in family matters reference can be made to the Family Law Act 1975 (Cth) and Family Law (Family Dispute Resolution Practitioners) Regulations

2008 which require parties to make a ‘genuine effort’ to resolve their dispute by family dispute resolution (FDR) before making an application for an order, unless there are exceptional circumstances. In all jurisdictions courts also have the power to mandate mediation and reluctant parties should be informed about this. Where legal advisers are involved, they will provide clients with advice on these matters and may in fact be required to do so by law. Consider, for example, the Civil Dispute Resolution Act 2011 (Cth) under which lawyers have a duty to advise their client of the ‘genuine steps’ requirement referred to above and to assist their client to comply with it. It may be helpful for the mediator to discuss these sorts of requirements with the relevant legal advisers or the clients directly. [page 27] 2.10 Here are some other procedural strategies that may be useful. Where the second party says no to you as the mediator, suggest to the initial party that they make, or remake, the approach. Where the second party’s legal adviser says no, ask if you can speak directly to the party. If this is refused, suggest to the first party that they approach the second party directly, with their lawyer’s knowledge. If at the end of these strategies you still have a negative response you should consider moving on to another file. Mediation is not always the appropriate process option.

Intake, Screening, Streaming 2.11 The term intake is used by some agencies and private providers of mediation services. It refers to the formalised steps taken before the mediation meeting during the mediator’s early involvement in the dispute. Screening refers to one part of intake, involving in its broad sense an assessment of the suitability of the dispute for mediation and in a narrower sense an assessment of those factors which make the matter unsuitable for mediation. Streaming allows for evaluation of,

and referral to, the most appropriate dispute resolution option.

Intake 2.12 Intake is a structured process which is designed to: gather information about the dispute and the disputants; educate the parties about the mediation process and the various roles of mediator, parties, lawyers and others in the process; assess the parties’ attitude to mediation, negotiation styles and sources of power; identify lawyers’ perceptions about their client’s attitude to mediation and to the dispute in general; identify lawyers’ perceptions about mediation, the dispute and possible outcomes; obtain the consent of one or more parties to participate in mediation; provide a basis for diagnosing the dispute and developing theories of appropriate intervention; suggest referrals to other forms of assistance in place of, or before, mediation; monitor for conflict of interest issues on the mediator’s part; decide on the most appropriate timing of mediation and on the identity of the mediator; organise matters such as venue, security, interpreters and the like; prepare parties for their participation in mediation including the obtaining of legal advice and the preparation of costs estimates and risk assessments; [page 28] oversee the exchange of documents and the preparation and exchange of case summaries and mediation memos; identify who should attend the mediation; confirm authority to settle;

clarify the terms of the Agreement to Mediate; and identify opportunities for designing the mediation process to suit the parties’ specific needs. Different aspects of intake are discussed throughout the chapter. The NMAS Practice Standards s 3(3) sets out objectives for an intake process. Section 3(4) outlines the role and specific tasks of mediators in this pre-mediation stage: see Appendix 6A. Intake prompt sheet This (slightly adapted) intake prompt sheet for mediation of family matters is reproduced with the kind permission of the Dispute Resolution Centre at Bond University. Intake: Areas to cover: Acknowledge confidentiality as soon as possible. Relationship details: Length of relationship. Type: marriage/de facto/casual. Date of separation. Date of divorce (if applicable). History of the relationship. How emotionally adjusted are the parties to the separation? Who initiated the separation? What are the circumstances of separation? What is the relationship like now? Tense, relaxed, civil etc. How is the party dealing with the separation? Does the party have any professional or family support? Ability to mediate: What is the history of decision-making and conflict resolution in the relationship since separation? Is there any history of verbal threats, physical abuse, controlling behaviour? Is there any evidence of a violence cycle? Is there any evidence of intimidation by the other party; are the

parties able to sit in the same room with each other and negotiate? Children’s details: Children of the relationship: names and ages. Other children impacted (half and step siblings): names and ages. Who are the children living with? How far from the other parent? How are the children coping? Have the children had any professional assistance? Through the school?

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Have they talked to their child about the situation? Have the children asked questions? Does the party think that the children may benefit from talking with someone about the separation and its impact on them? Motivation to settle: How motivated are the parties to settle? Have there been any previous negotiations between the parties? What happened? Any previous agreements? Have they sought legal advice? Encourage them to do so before mediation. Any previous court orders? If so, what is their content? What needs to change for things to work better between the parties? Issues for mediation: Residence of the children. Contact with the children. Other children-related issues.

Property. Financial issues. Miscellaneous: for example communication. Information for the parties: Steps in the relevant process (family dispute resolution, FDR, or family relationship counselling, FRC). What happens in mediation room? Qualifications and training of the mediator or family dispute resolution practitioner, FDRP. Legislative requirements: Agreement to Mediate given to parties prior to mediation so they can consider and ask questions relating to it; signed at mediation session. Refer to Regulations for information to be covered. Clarify any questions parties have about process or mediation in general.

Screening 2.13 The intake process can also be used to screen for non-suitability though such screening should also take place informally where there is no structured intake. According to the Family Law (Family Dispute Resolution Practitioners) Regulations 2008, reg 25(1), prior to providing family dispute resolution under the Act, the FDRP must be satisfied that an assessment has been conducted and that FDR is appropriate. Regulation 25 further stipulates the required screening process that should be undertaken by the FDRP. Further guidelines regarding screening and assessment are available from the Australian Government in the form of a report issued by the AttorneyGeneral’s Department, ‘Framework for screening, assessment and referrals’. There is no settled list of factors which make matters unsuitable for mediation. In general terms, mediation may be considered to be unsuitable as the dominant dispute resolution process in the following circumstances:

Gross imbalance of power between the mediating parties: this may arise, for example, where there has been domestic violence and one [page 30] party feels intimidated and not capable of negotiating with the other. Alternatively, a significant power imbalance may arise where one party does not have the financial or personal resources needed to participate ‘on a level playing field’ with the other in mediation. Another example can be found in situations where cultural, community or religious dynamics create significant power imbalances; for example family or community networks may impose undue pressure on participants to act in a particular groupconforming way in relation to a conflict. The NMAS Practice Standards s 4 deals with power issues in mediation. Section 4(1) provides: Some disputes may not be appropriate for mediation processes because of power imbalance, safety, control and/or intimidation issues.

One or more parties is unsuited to mediation: this may arise, for example, because a party is bent on revenge or because of a party’s mental or psychological state. Mediation may also be unsuitable where there has been a history of bad faith negotiations or where it becomes clear that one party wishes to use the mediation for opportunistic reasons such as to fish for information to gain a litigation advantage. In family cases, mediation may be unsuitable where one party is not prepared to accept the end of the relationship. External parties have interests which might be adversely affected in mediation. Consider the following examples: where there are abused children in a matrimonial dispute, where the rights of beneficiaries or creditors cannot be adequately represented at mediation, or where consumers in a competition law dispute require public determinations or official responses to problems. Policy or societal reasons: for example where there are allegations

of terrorism, child abuse, child abduction, fraudulent or criminal behaviour, or it is the kind of dispute which should be dealt with through the public court system or requires a determination on a point of law. Emergency procedures are required or have not yet been concluded, for example an injunction. Screening may also reveal that the proposed mediator has an actual or potential conflict of interest or is otherwise unsuitable to mediate the matter. A conflict of interest may arise in the following circumstances: where the case involves the mediator, the mediator’s firm or organisation or a member of its staff or management, or someone related to the mediator; where the mediator has acquired confidential or other relevant information about the case in a private or other capacity; where the mediator has a personal or financial interest in the outcome of the mediation; where the mediator or a member of the mediator’s firm or organisation has acted for one of the parties previously or is acting for one of the parties currently in another matter. [page 31] In some cases the conflict can be addressed by making full disclosure to the parties and obtaining the parties’ consent to proceed, for example where the mediator has knowledge of a dispute through industry networks but informed parties support his or her involvement. In other cases the mediator may need to withdraw from the mediation and the matter will need to be referred to another mediator or mediation organisation, for example where conducting the mediation would involve a breach of the NMAS Practice Standards or legal professional ethics. Section 7(3)(c)(i) of the NMAS Practice Standards requires mediators to possess an ethical understanding in relation to the

avoidance of conflicts of interest. The issue is further addressed in s 5(2) as follows: A mediator should identify and disclose any potential grounds of bias or conflict of interest that emerge at any time in the process. Clearly, such disclosures are best made before the start of a process and in time to allow the participants to select an alternative mediator. Mediators should take reasonable steps to minimise the chances of being in a position of potential bias or conflict of interest before the process commences.

The Practice Standards also place value on culturally diverse perceptions of impartiality in mediation and acknowledge that in some cultures parties will expect to have mediators who are known to and even close to them, so-called insider mediators. Section 5(6) states: A mediator should not become involved in relationships with parties that might impair the practitioner’s professional judgment or in any way increase the risk of exploiting clients. Except where culturally required, practitioners will not facilitate disputes involving close friends, relatives, colleagues/ supervisors or students.

On conflicts of interest see also s 3 of the Law Council of Australia’s Ethical Guidelines for Mediators (2006) in Appendix 6C. 2.14 Screening may involve telephone inquiries, online completion of questionnaires, and personal interviews. Resource restrictions may necessitate that intake be undertaken only by email or telephone. However, where there are concerns about violence or abuse, intake should be conducted in person. Screening can have varying degrees of sophistication. In general civil and commercial cases it usually involves gathering information about previous attempts to resolve the dispute, the power balance between the parties, the parties’ attitudes to mediation, their willingness to negotiate in good faith with each other and the ‘ripeness’ of the dispute — in terms of timing for mediation. In family cases screening is a sophisticated process in relation to the question of domestic violence. Here a direct inquiry as to whether there has been violence in a relationship may, for emotional or psychological reasons, elicit a negative response despite the fact that there has been a history of continual violence. More subtle questions and interviewing techniques are required to deal with this reticence.

[page 32] 2.15 There are two options as regards who undertakes the intake and screening. These functions can be undertaken by the mediator personally as is usually the case in private mediations; or they can be undertaken by trained intake officers as in mediation provided by government agencies or some institutional service-providers. In relation to the intake process the NMAS Practice Standards s 3(2) provides: This may take place in an intake process that is held separately from a mediation session. The person conducting the intake process may be a different person to the mediator.

Intake is a relatively specialised function, particularly where the circumstances require adequate screening of cases, hence the desirability of trained intake staff. Comprehensive intake is not a costfree activity; it requires money, information, resources, time and other potentially costly items. These must be paid for either by the parties, as part of the mediator’s fee, or by the agency or other serviceprovider. Under a user-pays system, such as the private mediation sector, the prospects for systematic intake and screening are not good and there is pressure on mediators and organisational serviceproviders to reduce this service where they have to subsidise it themselves. Screening can lead to a determination that a case: is suitable for mediation; is not suitable for mediation; or should be referred to another procedure — known as streaming.

Streaming 2.16 Intake allows not only for the screening of disputes but also for their streaming. Streaming involves the reference of disputes to appropriate dispute resolution mechanisms such as conflict coaching,

mediation, neutral evaluation, arbitration or litigation. This is not an exact science but dispute resolution advisers in various institutions, organisations and industry bodies are required to perform this function in light of the information they have to hand. Streaming is a central feature of the multi-door courthouse concept. This concept envisions one court-based centre where cases are screened and then streamed into the appropriate dispute resolution method or ‘door’ to handle the case. The multi-door courthouse is envisaged as a one-stop shop for disputes referred to it by courts, police and legal services and social service agencies. A number of Australian courts and the Law Council of Australia have indicated their interest in developing screening and streaming procedures using a multi-door courthouse model. For present purposes it is significant to note that the streaming aspect of intake might result in the case being found suitable for another dispute resolution process or even no dispute resolution process (the no-treatment option). [page 33]

A note on the no-treatment option There is pressure on mediators to take on all manner of cases as governments, courts, tribunals and other organisations refer matters to mediation regardless of how suitable it might be for the particular case. The problem is accentuated by the ‘mediator scramble’ to gain practical experience. However, sometimes it is important to take the no-treatment option, that is to make the decision not to mediate. A decision that mediation is not a suitable process to ‘treat’ the parties and their dispute will be necessary where the parties’ emotional or intellectual state is not conducive to successful mediation, where past experience suggests they will not respond to mediation, or that it will make the situation worse, or where the parties are likely to use mediation for ulterior purposes, for example to indulge in destructive conflict or to fish for information.

Other indicators can be conjectured. The no-treatment option has the advantages of preventing wasteful or destructive mediation sessions, of allowing for time to pass until conditions are more suitable and of motivating clients to rely on their own resources. Where appropriate, parties may be referred to conflict coaching or counselling to help them achieve a mental and emotional space suitable for negotiating within the framework of mediation. The pre-mediation activities referred to in this chapter provide the mediator with an opportunity to consider the no-treatment option. For some disputes there may be no realistic solution at all, regardless of the dispute resolution process used, just as for some illnesses there may be no cure, regardless of the medical treatment followed.

Preliminary Conferences 2.17 In some situations there is a preliminary conference before the mediation meeting as an occasion for building the mediation foundations. Fortunate clients receive this at no extra charge. The less fortunate do not. The preliminary conference is usually convened and chaired by the mediator and can be attended by the parties and, if relevant, their professional advisers. In some situations only lawyers attend and the parties have no direct involvement. Apart from this arrangement overlooking the reality that it is the parties’ dispute there are advantages in having the parties present. It gives the parties an opportunity to meet the mediator and become familiar with his or her style and it allows the mediator to assess the parties’ suitability for mediation and to predict their likely attitudes and behaviour at the subsequent meetings. 2.18 The preliminary conference can be used for many of the intake and screening functions already referred to above and it provides a good opportunity for the mediator to develop the trust and confidence of the parties. In practice, however, where the conferences are held

they have a [page 34] greater focus on the ‘business’ aspects of the forthcoming mediation meeting, for example to: obtain agreement on the exchange of documents and other factfinding requirements and on the status of legal proceedings, if relevant; verify that the parties at the mediation meeting will have authority to settle and to consider the legal nature of the mediated outcome, such as settlement formalities and review and ratification requirements; make organisational arrangements on venue, facilities, seating, special needs and the like (see the section on dispute resolution design principles in 4.36-4.49); and deal with questions and queries about mediation and its associated costs from the parties or their advisers. On mediator advice on costs see NMAS Practice Standards s 3(4)(e). These matters are considered further below and in subsequent chapters of the book. 2.19 Apart from the overt and formal aspects relating to when, where and with whom, a number of subtle developments can take place at preliminary conferences. Where mediators provide parties and their advisers with information about their background and experience, this can help build mediator credibility and confidence in the process. Where mediators explain how they plan to conduct the mediation, it promotes understanding of the process and manages the parties’ expectations from an early stage. It also gives parties an opportunity to communicate their preferences in relation to aspects of process such as the duration of mediation, required facilities, roles of mediator, advisers and parties, and so on. Through the early exchange of issues papers and other documents, parties and their lawyers have a chance to think through the issues as presented by the other party prior to the

mediation. This can help to reduce the ‘surprise’ factor and it may encourage parties to begin thinking from a perspective other than their own. Moreover, where large organisations such as local authorities or insurers are involved, this may be the first occasion that the mediating parties have met one another. It usually provides an opportunity for each party to meet the other’s legal or other professional advisers for the first time thereby preventing unexpected appearances at the mediation meeting. There is a general acclimatisation among the parties and some tentative negotiations on matters of process. In some cases settlement has been known to occur at the preliminary conference, or shortly there after.

Separate Prior Meetings with the Parties 2.20 Some mediators have prior face-to-face contact with each party individually. These separate meetings usually occur in the days before the commencement of the joint mediation meeting. Alternatively, they may occur on the day before the formal start of the mediation meeting. In the [page 35] latter scenario most of the practical matters required for preparation have been addressed beforehand, for example by telephone or email. Mediators who favour this practice of separate initial meetings maintain that it is the most important factor in a successful mediation. It can be used to deal with many of the preliminary matters referred to in this chapter and in addition allows the mediator to develop a productive working relationship with each party. While most mediators recognise the potential benefits of this arrangement there are conflicting views on the wisdom of the practice. Some argue that there should be no separate contact with the parties before the mediation as this might provide grounds for suspicion, unease or loss of trust. As usual much will depend on the

circumstances, including the nature of the dispute and the identity of the clients. There is also a pragmatic consideration in that this system requires at least some additional resources in terms of time and money. Table 2.1 shows the advantages and disadvantages of separate prior contact in mediation. Advantages Disadvantages Generally prior contact between the mediator and each party promotes and facilitates: frank discussions party acclimatisation rapport building mediator diagnosis of conflict negotiation planning and coaching setting time frames to focus parties’ minds on important premediation issues checking on the availability of advisers managing expectations challenging assumptions

Prior contact between the mediator and each party may generate distrust and suspicion. Where lawyers do not attend separate initial meetings they may need considerable education about what has transpired without them and this may disrupt the momentum of the mediation. Financial, time and other resource pressures may limit the opportunities for separate initial meetings with each party.

The following example illustrates how the separate prior contact system could work: Case illustration: The separate prior contact system In a retail lease dispute the landlord and tenant are contacted prior to the mediation by the mediator personally. Telephone interviews are used to educate both parties, assess their suitability, check out information

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requirements as to the lease agreement, prepare the parties for mediation, deal with queries, and make organisational arrangements. Appointments are made for the mediation day as follows: tenant individually, 10:00; landlord individually, 11:30; both parties together, 13:00; professional advisers in attendance, 16:00. As the appointment times suggest, the mediation is conducted in stages. Each party is seen separately by the mediator for approximately one hour during which time particular emphasis is put on ascertaining their real needs and interests, in preparing them to negotiate, and in developing trust in the mediator. Thereafter the mediation is conducted in orthodox style with both landlord and tenant present, using separate meetings where necessary. In this example, the aim is to reach heads of agreement by 16:00, at which time advisers are briefed on the developments and are afforded an opportunity to advise their clients and proceed to draft the agreement.

Authority to Settle

2.21 It is always desirable that those present at the mediation table have authority to settle. This issue arises where the participating parties are there in a representative capacity, for example a professional adviser on behalf of a client, a director on behalf of a company, or a public official on behalf of a government department. All experienced mediators have encountered situations where the representative party has indicated towards the conclusion of mediation that they lack authority to settle. They then request an adjournment to contact and seek ratification of the proposed agreement from their client, the company board or the director-general or minister of the government department, as the case may be. This can have fatal consequences for the mediation. The golden rule here is for mediators to anticipate before the mediation meeting that the ‘no authority’ problem may arise and to attempt to secure the presence at the mediation table of a person or persons with the necessary authority. 2.22 However, this is not always straightforward. There are four different situations in which the no authority problem might arise during the mediation meeting: 1. The first is where the question of authority has been genuinely overlooked by the representative concerned, although this is not a common occurrence. 2. The second is where, for practical or policy reasons, it is not possible to obtain any authority at all. For example some governmental decisions require Cabinet approval. 3. The third is where the representative at the mediation has authority but it is limited and the proposed settlement agreement is in excess of that limit. [page 37] 4. The fourth is where a representative at the mediation claims to have no authority as a tactic to buy time or to impose negotiation pressure on the other party.

The first situation is the easiest for mediators to deal with by asking all parties at the earliest stage whether they will have authority to settle and if not what would be necessary to obtain it. In the second situation nothing can be done to secure authority but mediators can ensure that all parties are advised in advance that, say, cabinet approval or some other formal process for approval will be required for any decision so that it does not come as a trustthreatening surprise later. The third situation is a fact of life for many defendants who will have authority to settle up to their ‘bottom line’. Here mediators may have to engage in some reality testing to get parties to focus on how realistic and feasible their bottom line really is. Mediators may also use doubt creation by asking whether the representative can obtain some additional discretion to take account of new information or disclosures from the other side or other unexpected developments. The fourth situation is the most problematic, even where the mediator has strong grounds for believing that it is a power tactic. No amount of diligence will inevitably pre-empt the tactical ploy. It is less easy to use where the mediator has remembered to raise the authority issue openly and timeously with all parties, though a party can still insist that they had only limited authority which has now been exceeded. The inclusion of warranties relating to authority to settle in the Agreement to Mediate will also make it more difficult for parties to use authority in a tactical manner. 2.23 Some experienced mediators probe the limits of each representative’s authority to settle in advance. They may ask whether it extends only to the extent of offers previously made by that side, in which case it might be expedient to suggest that further authority be obtained. They may ask whether it extends to the full amount of the other party’s claim (including costs), in which case it is likely to be sufficient. They may ask to see confidentially in advance a written statement of authority to ensure that any limited authority claim is genuine and not a devious tactic. None of these strategies will guarantee that the parties are open with the mediator and that all dangers are excluded. However, they are good risk minimisation strategies.

Thus the question of authority should be canvassed as early as possible during the mediator’s entry into the dispute and may need to be revisited at later stages as well. The mediator may have to act as ‘reality agent’ in pointing out the short-term and long-term disadvantages for the party who plays the ‘no authority’ card. Unfortunately here as in other aspects of mediation there are no guarantees. Similar issues arise in relation to the closely related ratification problem, which is dealt with elsewhere in this book: see 5.82. [page 38]

Settling the Agreement to Mediate 2.24 An Agreement to Mediate is a contractual document which defines and regulates the roles and responsibilities of the mediator and the parties. It is used in many private and court-referred mediations particularly, but by no means only, where lawyers are involved. Where there is an Agreement to Mediate it is signed by the parties and the mediator before the mediation begins, sometimes at the preliminary conference. The NMAS Practice Standards s 3(5) deals with Agreements to Mediate and states that, ‘Wherever considered beneficial by the participants, the agreement to enter into mediation will be in writing.’As an extra precaution in relation to confidentiality, the section also provides that agreements about confidentiality or waiver thereof must be in writing and signed. The section further states that where an Agreement to Mediate is not in writing the mediator must record the parties’ understanding of the terms upon which they have entered mediation. An Agreement to Mediate should be in plain language and should be as short and simple as possible so that it does not ‘over-legalise’ an extra-legal form of dispute resolution. Its content should be explained to those parties who might have difficulty understanding it.

Sometimes this is done before the mediation, sometimes at the preliminary conference, and sometimes as the first item in the mediation meeting. Most mediators and mediation services have standard form agreements. However, the mediator and parties are free to negotiate an agreement which suits the specific needs of the situation. While the NMAS Practice Standards acknowledge the variations in Agreements to Mediate, the Standards expressly require that such agreements include provisions about confidentiality (s 6(2)) and a description of fee arrangements with the mediator (ss 3(4)(e) and 12(2)). Typical components of an Agreement to Mediate include: identification of the parties to the mediation; confirmation that parties have authority to settle; identification of the mediator’s name, qualifications and appointment; organisational and procedural matters; a description of the mediation procedure including, for example, its emphasis on interest-based negotiation and problem-solving and the possibility of private meetings in addition to joint sessions. Specifying modalities of communication, documentation and recording may also be relevant here; a description of the mediator’s role and obligations including disclosure requirements, impartiality, confidentiality, privilege, and the inability to provide parties with substantive advice; [page 39] a description of the parties’, lawyers’ and other participants’ roles and obligations such as the requirement to participate in good faith, disclosure requirements, confidentiality and privilege; identification of commencement and completion times for the mediation; identification of other people who may be present at the mediation;

an explanation of mediator liability and any limitations imposed by statutory or contractual immunities: the NMAS Practice Standards s 3(4)(f) requires mediators to advise clients in relation to this point; fees and charges for mediation services and related costs and by whom they will be paid; advice to unrepresented parties that mediated agreements may affect their legal rights and that obtaining independent legal advice is recommended; the legal nature of any agreements reached; an explanation of how mediation interfaces with parallel conflict resolution procedures such as litigation or arbitration; and in blended procedures such as med-arb, an explanation of the circumstances in which transition from one process phase to another occurs and how it is to proceed, for example in relation to the use of information as between the processes. There are many variations in Agreements to Mediate being used in practice, in particular as regards their levels of detail and legalistic orientation. The sample agreements shown in Appendix 4 can be adapted for various purposes.

Preparatory Work for Parties and Advisers 2.25 One of the tasks of the mediator is to assist the parties, their advisers and other participants to prepare for the mediation process. Preparation is essential if parties are to experience the benefits of mediation and gain the most out of it. Where participants are wellprepared the mediator’s task is generally easier in terms of moving parties through the process and encouraging them to focus on interests, needs and solutions that are suitable not only for themselves but also for the other party. As indicated previously, mediators will often request parties to prepare one or more of case summaries, chronologies and mediation memos. These documents are explained in Chapter 4. The aim of preparatory work is to focus the parties’ minds on the issues in dispute, what is important to them and the nature of the mediation process. Where parties are supported by legal or other

advisers additional preparation is to be expected. This may include coaching [page 40] clients in negotiation, clarification of adviser and client roles, clarification of what is important to the client, identification of goals in mediation, managing client expectations, and further investigation and firming up of alternatives to settlement. Preparation for mediation is further considered in Chapter 4. Practical preparation for mediation is also essential. Here the following matters are relevant: choice of venue, setting, seating, amenities, arrival, waiting and departure of parties, timing of and time frame for mediation, security and use of visuals. These are considered within the context of mediation design principles in Chapter 4.

Preparatory Work for Team Negotiations 2.26 The term ‘team negotiations’ here refers to a situation in which each ‘party’ in mediation comprises a group of two or more individuals. In this sense a voluntary association, a group of ratepayers, a trade union and even multiple plaintiffs could be regarded as a team. In addition to the usual preparation for mediation it is necessary for the mediator or intake staff to undertake specific preparatory work for mediation involving one or more teams. This may include attention to: the nomination of spokespersons and participants for each group; the division of labour within each group; forms of communication with members of constituent groups, which might involve modifications to the normal confidentiality arrangements; the desirability of appointing a process control group: see 10.66; coaching and training on conflict and negotiation; and methods of decision-making within each group.

The importance of the last-mentioned point is illustrated in the following case illustration. Case illustration: Group decision-making in mediation In a mediation involving a federally organised voluntary organisation, the mediator undertook considerable preparatory work over a number of sessions involving extensive education on the nature of conflict and interest-based bargaining. The subsequent mediation commenced well but it soon became apparent that it would be difficult to reach an agreement because of the presence of a destabilising individual in one of the teams. It was clear that this person would not commit to any agreement and his dominant role within the particular group precluded the group from being able to do the same. With hindsight the mediation would have been

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more productive if in the preparatory stages the mediator had required the participating groups to commit to a decision-making process before any proposals were on the table. Had this been a system of majority vote, or two-thirds majority, it would have marginalised the sole dissenter and allowed the groups collectively to have come to a decision. It was difficult to impose a decision-making procedure on the groups once concrete proposals were on the table and individuals had taken up positions in respect of them. The lesson learned from this experience is that where the parties in mediation consist of several individuals it is worth insisting that each team stipulate and commit to a decision-making procedure in advance of the mediation. This should preferably not involve a unanimity requirement.

On the opportunities and risks associated with team negotiations, see Alexander and Howieson (2010: 262-4).

Mediator Learnings 2.27 This chapter provides the following learnings for mediators: 1. When the mediator first enters the parties’ dispute there are important trust-building and information-providing tasks to perform. 2. In some contexts it is imperative that the dispute and disputants be screened to assess their suitability for mediation. This may be done through intake, screening and streaming procedures. 3. The Agreement to Mediate is an important document that regulates the rights and responsibilities of the mediator and other participants in the process. It should be checked carefully and tailored to suit the needs of the parties. 4. Where possible, it is useful to have preliminary meetings with the parties and their legal advisers. The different approaches to arranging these meetings are outlined in this chapter.

Tasks for New Mediators 2.28 Develop some additional metaphors which might be suitable for explaining mediation to a person involved in: a construction dispute; a commercial dispute; a property dispute; a family dispute; a workplace dispute; [page 42] a maritime dispute; and

an information technology dispute. 2.29 Compare and contrast the different Agreements to Mediate in Appendix 4 using the list of typical components identified in 2.24 as a benchmark. 2.30 You are consulted by an agency which provides family mediation. They need a checklist of factors to consider in screening out cases in which domestic violence makes mediation inappropriate. Design an appropriate document for their use.

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CHAPTER 3

Maintaining a Favourable Climate Introduction to the Mediator’s Role in ‘Climate Control’ Reasons for a Poor Climate The Trust Factor Managing Expectations Strategies for Improving the Climate Dealing with Intense Emotions Dealing with Criticism Overcoming Clients’ Fundamental Fears Preserving Face and Avoiding Loss of Face Mentalising Improving the Climate A Final Word on Authenticity Mediator Learnings Tasks for New Mediators

Introduction to the Mediator’s Role in ‘Climate Control’ 3.1 Mediators have roles in creating and maintaining a favourable ‘climate’ for the mediating parties as they communicate, negotiate and make decisions. As with the development of the foundations referred to in the previous chapter, this is not something that occurs at only one stage of the mediation process; it has to be considered and attended to

through the entire process. However, it tends to be a more important responsibility for mediators before [page 44] and during the early mediation stages when parties are likely to be most apprehensive, confused and defensive. A mediator has the equipment and tools for ‘climate control’ and can modify the temperature, humidity and atmospheric pressure as the circumstances require. This chapter focuses on some of the reasons for the discomfort of mediation clients and different ways in which mediators can deal with this factor.

Mediation skills and other disciplines 3.2 While counselling is distinguishable from mediation, counselling concepts are of significance for mediators, as they are for other skilled helpers. A difficulty for a book on mediation skills is that there are many different theories of counselling on matters such as motivation, behaviour and grief. Moreover, fields such as psychology and more recently neuro-science also contribute ‘know-how’ as well as ‘knowwhy’ to the skill and theory-base of the mediation profession. It is not possible to canvass all relevant theories, nor is it wise to link mediation skills to a particular theory in one area. Therefore the book, especially this chapter, works eclectically with counselling, psychological and neuro-scientific concepts and recommends reference to more specialised materials on these topics, some of which are listed at the book’s end.

Reasons for a Poor Climate 3.3 Conflict can be debilitating. To some people it appears confusing, even chaotic. It stirs the emotions and saps the energy and often feels difficult to manage and resolve. Mediators can expect that parties

coming into the process will be in negative emotional and psychological states. They will feel that their cause is just and that the other side has acted unfairly, or worse. They may have invested a great deal of energy in the ‘struggle’ and be unwilling to negotiate towards a compromise on ‘matters of principle’. There may be several reasons for the negative condition of mediation clients, as illustrated in the following case. Case illustration: Simon and Southern Slate Sculptures Simon is employed by Southern Slate Sculptures as a slate cutter in Mintaro, South Australia. His job is to cut sections of slate from the mined block according to the size needed for each sculpture. He has been using a large industrial power-tool to cut the slate, but over the past three months the power-tool has been emitting unusual surges of power which cause it to jolt and shake uncontrollably. Simon has complained about the power-tool but his boss told him that it was nothing to worry about. One month ago Simon was busy cutting a large block of slate, which was to be crafted into a water feature, when a surge of power caused the power-tool to jolt so violently

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that it threw Simon to the ground. The incident caused Simon severe lower back pain and constant tingling sensations in his legs. Since the accident Simon has not been able to work and his movement has been severely restricted, affecting his usual daily activities. After the accident Simon consulted a general practitioner; he was prescribed analgesics and some physiotherapy, which he has attended when he can. The medical reports suggest that Simon has suffered a ‘significant amount’ and a ‘moderate degree’ of pain and

suffering, but the injuries were not as substantial as claimed. They suggest that he will ultimately be capable of resuming suitable light work and normal daily activities. Simon alleges that since the accident he has had difficulty socialising and sleeping. His dreams to play in the Australian Football League regional final for his team, the Marauding Mynahs, have been thwarted by this accident. He complains of constant throbbing in his back, occasional spasms and tingling in his legs and bruising. He has lost self-confidence and self-respect since the accident. Court proceedings were instituted for negligence and breach of statutory duty under the Occupational Health, Safety and Welfare Act 1986 (SA). The solicitors arranged mediation, attended by Simon, Southern Slate Sculptures and the Workers’ Compensation Board.

Reasons for poor climate: pre-mediation developments 3.4 Between the time of the accident and the mediation there could be a number of developments which contributed to a further deterioration in Simon’s original negative condition. Seen from his perspective, these might include: Insulting offers from the insurer, which have ‘poisoned the well’. The attitude and treatment of the defendant’s doctors who were abrupt, rough, disbelieving and uncaring. The approach of the insurer in giving him the ‘run around’ with gross delays in authorising payment for medical treatment or in making a ‘decent’ offer. Increasing anxiety that his injuries might get worse. Well-meaning advice from friends or relatives not to talk to the insurer, not to trust any lawyer and not to settle the case. His growing belief that the defendant employer treats the entire workforce badly and must be taught a lesson.

A slow realisation that the whole system is ‘loaded against him’, or his rights have been unreasonably disregarded, or the defendant won’t be reasonable until the door of the court. Very high expectations that counsel’s advice have raised in his mind, particularly in relation to the dollar amounts mentioned. Comparable considerations could have put the insurer’s representative in a negative frame of mind, in particular where Simon is from ‘a certain ethnic [page 46] group’, his lawyer has a notorious reputation among insurers and there have been ‘grossly inflated’ monetary claims for a ‘minimal injury’. The effect of these factors is to escalate the conflict beyond its original scope, rendering mediation more problematic than it otherwise might be.

Reasons for poor climate: the individual parties The grieving process 3.5 Most parties in conflict, and hence in mediation, have experienced an actual loss or a perception of loss and are undergoing a process of grieving: see the classic account in Kubler Ross (1969). Depending on the circumstances, the sense of loss could be over a matrimonial partnership, a promising business venture, the full use of limbs or other bodily parts, or security of employment. According to different writers on attachment theory, the grieving process could involve a number of elements, though not in any strict sequence or linear progression. Thus Simon could have experienced the following emotions in his grieving process:

Shock: the state of numbness in which there is no ability to analyse, understand or feel what has happened and what is going on. Denial: the inability to accept or come to terms with the loss and the belief that his health, job and family prospects, as the case may be, will be restored to what they were before. Bargaining: an attempt, usually futile, to recover whatever has been lost by ‘negotiating’ with the employer, insurer, or even God, accompanied by firm commitments to reform in the future. Anger: characterised by extreme hostility towards the ‘cause’ of the loss, such as Simon’s employer, his boss, or fate, or even the victim himself. Despair and disorganisation: a loss of hope for the future and inability by the depressed person to plan, act and make logical decisions in his best interests. Acceptance and reorganisation: in which Simon comes to terms with the loss and decides that he wants to get on with his life. 3.6 As the grieving elements do not occur in a strict linear progression, persons may move between them with some irregularity and at times slip ‘backwards’, for example from partial acceptance to denial. Also it is not unusual for persons who have been in a close relationship, such as married couples, work colleagues or business partners, to be in different stages of the grieving process from each other; for example one party might be at the acceptance stage while the other is still in denial. The latter party may be seen as unfeeling and the former as unable to manage, further exacerbating the dispute. Writers such as Emery talk of a cyclical theory of grief revolving around love, anger and sadness, in which there is a constant cycling back and forth among these conflicting emotions: Emery (2011). While the intensity of [page 47] these emotions lessens over time, they can involve a lengthy and confusing process with the possibility of the person becoming stuck on

one of the emotions of grief. Furthermore where there are two parties, one the ‘leaver’ of a personal or business relationship and the other the ‘left’, the guilt of the former and rejection sense of the latter and the continued contact between them can perpetuate the cyclical process. As the leaver’s emotions are usually less intense than those of the left party, the same misunderstanding and exacerbation can occur as described above. 3.7 In relation to mediation, parties in all stages of grieving will be in a complicated emotional state. In some cases, for example where there is prolonged shock or denial, it might be inappropriate to negotiate and mediation should be deferred until these stages have passed. In others, for example where one party is in the anger phase and the other at acceptance, the mediator will have to be aware of their different emotional realities without resorting to amateur counselling. In these circumstances parties may engage in a mediation at different levels and one party may need more time to reflect, vent or speak with the mediator in private session.

Selective perception 3.8 People in conflict tend to generalise, distort and delete information in ways that fit with ‘their story’ and their desires and expectations at mediation. They recall information that supports their perceptions of the situation and conveniently forget or re-shape information that challenges their view (the confirmation bias). Here mediators will utilise a range of skills including summarising, reframing, asking hypothetical questions, reality testing and other appropriate communication tools to encourage parties to question and adjust their own perceptions. For example during the dialogue and exploration stage of mediation (see Chapter 5) one party may exclaim, ‘She was never on time for any of the client meetings and her work was always sloppy, never complete!’ These are examples of generalisations. Here, depending on the circumstances, a mediator may choose to move from a level of generality to specificity and ask whether the speaking party is able to recall a time when the other party was punctual or when her work was accepted as complete. Of course this

intervention is mainly useful when earlier discussions with either or both parties have indicated that a positive reply is likely.

Power imbalances 3.9 Some parties come to mediation with a perception that they are in a grossly inferior position as far as their bargaining power is concerned. This is likely to be the case for someone in Simon’s position. Even if the imbalance operates only at the level of perception, it is still a reality for the party concerned. In fact in many situations both parties feel at a disadvantage in terms of their bargaining power, causing anxiety and defensiveness all round. Specific ways of dealing with power imbalances are referred to below: see 10.3-10.10. [page 48]

Fear of losing altogether 3.10 Some parties come to mediation with a perception that they might lose altogether in the course of the process. Even if this is, objectively speaking, an unlikely eventuality it is not less real in the subjective world of the fearful party. Again, someone in Simon’s position may have this fear. Specific ways of dealing with this fear are also referred to below: see 3.42-3.43.

Reasons for poor climate: the mediation process 3.11 The mediation process itself can be a source of anxiety and concern. At least one of the parties has usually not experienced mediation before and ‘first-timers’ such as Simon are likely to have more anxieties than the ‘repeat users’. Negative factors relating to the

mediation process could include: Resentment at having been forced by a court, tribunal or stronger contracting party to attend mediation against the relevant person’s will. Ambivalence about being at mediation, even where parties have chosen this option themselves. Unfamiliarity with and ignorance about the mediation process and the mediator. Uncertainty over the actual roles and likely behaviours of the mediator. Anxiety about their negotiating abilities within the mediation context. Concern about having to compromise on ‘matters of principle’. Cumulatively these factors could have a deeply negative and distrustful effect on disputing parties as they come into mediation and as they begin participating in the process. The rest of this chapter deals with ways in which mediators can change the climate to a more positive one.

The Trust Factor 3.12 The story so far suggests a number of factors which can contribute to a stormy climate for many mediations. This is compounded by the fact that parties in dispute frequently distrust each other. Here the word trust refers to one person’s willingness to believe, to be open to and to take risks with, another person. Another way to talk about trust is in terms of ‘risk assessment’. The question then becomes, ‘How can the mediation process beneficially modify a party’s assessment of the risks involved in coming to the negotiations, showing vulnerability by disclosing interests and needs and exploring settlement options with the other side?’ Levels of trust may improve, deteriorate or stay the same during the course of a mediation, and mediation is by no means a failure if the level of trust has not improved; it is too high an expectation of mediators that they turn embattled business partners or sceptical government officials into

[page 49] trusting comrades. However, high levels of distrust can make it difficult or impossible to come to joint decisions. In these circumstances mediators can generate some degree of trust in themselves and in the mediation process as a basis for getting the parties to move towards reaching an agreement with each other. The central assumption here is that if parties trust the mediator and mediation process they are more likely to remain at the negotiating table and make attempts at settlement than if this trust were absent. Needless to say there are no guarantees.

Generating trust in the mediator 3.13 The objective is that parties develop trust in the mediator so they feel able to take risks with him or her which they would not take with each other. Mediators can use the following techniques to impress on parties that they are individuals who can be trusted: affirming their credentials, and where appropriate that of their organisation, as mediators and dispute resolvers; being transparent in their conduct of the process and addressing parties’ concerns in relation to the process; reassuring parties that mediation is a safe space for showing their feelings, talking things through, generating options and making decisions; showing respect and concern for the parties and treating them with dignity; establishing a personal rapport with the parties through good active listening skills and acknowledgment of the parties’ concerns; using appropriate body language and pacing; being impartial and even-handed in the conduct of the process.

Generating trust in the mediation process

3.14 Here the objective is that the parties develop trust in the mediation process so that they are more likely to remain committed to it and to persist in their attempts to reach a settlement. Mediators can use the following techniques to help the parties generate trust in the process in which they are participating: explaining, normalising, validating and being otherwise transparent about the mediation process; answering questions and reassuring the parties, where possible, regarding their anxieties about the process; providing equality of speaking time for the parties; applying the mediation guidelines (see 5.6) appropriately; using separate meetings (see 5.64-5.74) to keep the process moving. [page 50]

Developing faith in parties’ own negotiating abilities 3.15 As negotiation experts, mediators can identify relatively minor issues on which parties can develop trust before moving on to more substantial matters. By initiating successful discussion and decisionmaking on a ‘process’ issue, such as the venue for a mediation or the appropriate role for advisers and outsiders, mediators can stimulate faith in the parties’ ability to negotiate successfully together. The same can be achieved by the mediator targeting and gaining negotiated agreement on ‘easy’ matters first, for example on where children will spend Mother’s and Father’s Day in a parenting dispute or on how interest will be calculated in a business dispute.

Managing Expectations 3.16 In our experience, managing expectations is one of the most important functions of mediators. It is the M and E in MEdiation. This

is a constant function of mediators and is relevant in relation to premediation activities, to developments within the mediation and even to what occurs after mediation. Reference has already been made to the challenges associated with parties who come to mediation in a negative frame of mind and the mediator’s role in dealing with this phenomenon. Conversely, some parties come to mediation with wildly optimistic expectations about the process, the role of the mediator and likely mediation outcomes. These are some of the unrealistic expectations encountered in practice: that mediation will vindicate the relevant party’s version of the facts — it will establish the ‘truth’; that the mediator will find and hold the relevant party’s case to be essentially just; that the parties are negotiating over a ‘fixed pie’ which will not be diminished in mediation, litigation or any other dispute resolution process; that the matter can be dealt with quickly, in accordance with a particular party’s demands or expectations; that the mediation outcome will be in accordance with the party’s most optimistic settlement prospects; that if a mediation is not successful the party will be vindicated by a judge in court and receive what they could not obtain in mediation. These and other such expectations are often quite unrealistic — a factor which is helpful neither to the parties nor to the process. Parties who have the ability to participate in mediation with some degree of objectivity about themselves and others tend to do better than those with unrealistically positive or negative expectations: see Elizabeth Bader (2010). One of the ways in which mediators maintain a favourable climate during mediation is by attempting throughout to manage expectations by bringing them to a realistic level. This is done through the strategies and interventions referred to in this chapter and throughout the book.

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Strategies for Improving the Climate 3.17 What follows (3.18-3.31) are suggestions for ways in which mediators might improve the climate in which a mediation takes place. The appropriateness of each strategy will depend on the stage and circumstances of each mediation.

Using ritual in mediation 3.18 Ritual plays an important, yet often overlooked, role in mediation. The following extracts highlight how ritual weaves its way into mediation practices in both formal and informal ways. We begin with an extract from LeBaron in Alexander (2010: 128-31) on the meaning of ritual and how mediators can work with ritual. Rituals are patterned activities outside everyday routines where sensing and feeling take priority over thought and analysis; relationships are emphasised; and transition is accomplished. Rituals happen in organisations, families and communities as ways for people to connect, to mark life-events and to transition. They are the connective tissue that helps us move from one situation to another. Transitions may mark progress with a dispute; they may relate to changes in roles, status or identity. Rituals may be formal or informal, traditional or improvised. Actions do not need to be repeated in the same way more than once to be a ritual. Rituals are useful in addressing disputes because they help build and reinforce trust and empathy across cultural differences. Rituals draw our attention to what we share with others, mark turning points and facilitate participation. They allow us to address disputes while saving face. To be effective they need to fit the cultural context in which they take place. In intercultural settings, rituals can be constructed to reflect the cultural values and norms of each involved group … Mediators can use rituals in two ways. First, they can watch for ritual moments that arise between parties. As they share a meal or take a walk, do relations warm? When they develop shorthand communication or begin to make jokes with each other, ritual moments may be occurring. Second, mediators can work with parties to create rituals to mark transitions in disputes. What symbols would be meaningful to divorcing partners? Is there music they’d like to listen to together or words they would like to say to each other to mark their new and separate paths? Rituals need not be stuffy or old to be useful. Culturally fluent mediators are attentive and creative, finding and valuing rituals

and ritual moments that help parties mark progress and transitions.

Boulle (1996: 64) makes the following comments on ritual, distinguishing its role in individualised western societies on one hand and communal societies on the other: Mediation in western societies has few established rituals. In communal societies … systems of conflict management … have numerous rituals involving the exchange of gifts, eating, drinking and smoking, signs of

[page 52] respect, singing and movement. Ritual lends a sanctity and mystique to the proceedings, suggesting that the business at hand has a social importance greater than the interests of the individuals. It also lends a sense of purpose and even-handedness to the proceedings. In the absence of equivalent rituals in western mediation, mediators need to consider spending time on preliminary courtesies among all present, on exchanging pleasantries … on initiating a formal round of introductions, on attending to how the parties should address one another and on making some acknowledgment and affirmation of all parties present. Mediators may also provide food, drink and other refreshments, which can be ‘ritually’ served in a way which shows respect for all and the equality of all parties present. Consumption becomes a common activity, participated in equally by all participants, which temporarily distracts attention from the negative features of the dispute during the settling-in phase. Imaginative mediators might develop additional rituals appropriate to the mediation process [as the previous extract suggests].

Conflict coaching to improve the climate 3.19 Conflict coaching is a one-on-one process in which coaches collaborate with and support clients to make decisions in relation to conflict situations. In a mediation context, conflict coaching can be used in separate meetings with the parties prior to or during the mediation. Conflict coaching interventions can be used to assist clients to: clarify their conflict goals; work on their communication and negotiation strategies; and become more comfortable with the mediation process and their own role in it.

Conflict coaches draw on a range of interventions and processes to help clients develop their conflict understanding and their strategies and skills related to communication, negotiation and other aspects of conflict resolution. According to Brinkert (2006: 518) conflict coaching ‘permits different kinds of conflict-related conversations to take place, including but not limited to ways of making sense of conflict, general plans for actively managing conflict and specific communication behaviors for the disputant to possibly enact’. He emphasises that interpersonal, organisational, cultural and other contextual factors are integral to the ‘coaching conversation’.

Using multiple intelligences to improve the climate 3.20 Shifting conflict often involves engaging different types of intelligences: rational (thought), emotional (felt), social (connected with others), spiritual (connected with self) and kinaesthetic (sensed through body) in order to bridge gaps between conscious ways of knowing and somatic ways of being. The significant scientific literature on multiple intelligences [page 53] effectively demonstrates that conventional western conflict approaches — so often linear, verbal, deliberative and disembodied — are insufficient to address the diversity of human modes of understanding: see Alexander and Howieson (2010: Ch 7). Consider the following fact scenario of a multi-party commercial mediation. Case illustration: Multiple intelligences in multi-party commercial mediation An example of the importance of non-verbal dimensions and extra-rational intelligence is provided by the following case

illustration. In a multi-party mediation four institutional parties were represented by 13 people. Legal advisers were available by telephone. Three days had been set aside for mediation and the conflict had been embroiled in litigation for more than a decade. The legal dispute related to intellectual property issues and a significant amount of money was at stake. The wider conflict related to deteriorating business and workplace relationships, and emotional and social issues such as recognition. Halfway through the second day little substantive progress had been made towards resolution. As lunch-time was approaching the mediator arranged for the participants to walk together to a restaurant where one table had been reserved. She suggested to the parties that they talk about whatever they liked, but it would be good to ‘have a break from the mediation’. This they did. In the afternoon the participants were invited to form groups with peers from their side and one person from another party in each group. Each group was given a separate and private working area. The mediator hoped that group dynamics would shift with the introduction of ‘others’ into each group. Each group was requested to collaboratively draw an image of how they imagined each of the other three parties felt at this time in the mediation. Groups were asked to find ways to facilitate participation in the activity by each group member. When they rejoined the plenary, each group shared and explained their images, while the subjects of each image were invited to change or add to them. The visual qualities of the collaborative images were powerful experiences for all present. This intervention — shifting modes of engagement and pausing the conscious mind — was the turning point of the mediation. The change in atmosphere was palpable. The mediation progressed to a sustainable resolution. For another illustration, we turn to indigenous settings where mediations involving land issues are often conducted on-site. Here it is not uncommon for parties, representatives and lawyers to spend time walking on the country in question. This collective phenomenological engagement with the soil and its contours, the flora and fauna, the

flow and feel of the ‘country’ can be harnessed to tease out how various parties make meaning of — and place value on — the terrain they traverse. Some may value its traditional sacredness, some its significance as a family property over generations, others its environmental value and yet others its resource richness or development potential. A skilful mediator can then encourage participants to demonstrate [page 54] appreciation of the values and needs associated with these different meanings through the vehicles of dialogue, ritual, story-telling, exchange of maps and other representations of the site in question, thereby utilising multiple lenses of intelligence.

Promoting optimism, a positive tone and a mood of confidence 3.21 The mediator sets a positive tone from the outset with a quiet, confident approach and a mood of optimism. This is reinforced by emphasising and upholding the fairness of the process, highlighting its collaborative and problem-solving nature and pointing out its ultimate goal (‘to reach settlement …’, ‘to make choices for the future …’). Themes of mutuality and cooperativeness are emphasised from the beginning (‘You are here to make decisions that suit both your needs and interests and that you can live with …’). Confidence and optimism are maintained throughout the process by emphasising progress, particularly through the intervention of summarising to highlight common ground, commitments in principle and areas of agreement reached so far: see 6.54-6.56. Mediators commend parties as they make incremental steps towards resolution to reinforce positive progress. Where parties have previously enjoyed a constructive and positive business or personal relationship, mediators may encourage them to acknowledge this aspect of their past as a basis for discussions about how to shape the future. At times when parties are

feeling frustrated, mediators may ask them to imagine what it would feel like if they were able to walk out of the mediation room with a resolution. Positive language is used wherever possible: see 6.186.19.

Providing structure, control and security 3.22 Mediation is not the forum in which to continue destructive fighting and mediators must neutralise this propensity to some extent. They offer a non-threatening atmosphere, manage the parties’ accusations and defences to accusations, emphasise the confidentiality of deliberations and otherwise create a secure environment for dispute resolution. 3.23 What about threats directed at the structure and process management provided by a mediator? One of the ways in which mediators provide a favourable climate for decision-making is by taking charge of the mediation process and by keeping it moving according to the design plan in respect of which they have the expertise. This function is referred to more fully in Chapter 5 which deals with the ‘stages’ of the mediation process. These stages are designed to ensure that the process is even-handed, that each side has sufficient ‘air time’ and that neither side is able to take control of a mediation or disadvantage the other through tactical manoeuvres. Therefore, at least initially, mediators should be assertive in their process management function. 3.24 The mediation guidelines (see 5.6) are one of the ways of asserting control over the process and providing security for the parties. They [page 55] provide a simple set of standards for behaviour during mediation and give mediators some ‘objective’ criteria against which to measure party conduct. However, where a party breaches the guidelines the mediator has a range of possible responses, depending on the

severity of the breach and other circumstances of the mediation. Thus a mediator might, in ascending degrees of assertiveness: Pay no attention to and ignore the breach if it is not significant or is very early in mediation, and continue without any reference to it. Distract or disarm the party or parties with a deflective question: see 6.47. Neutrally restate the guidelines and ask both parties to recommit to them. Rebuke or reprimand the offending party or parties. Break into separate meetings in order to discuss the breach. Terminate the mediation — a last resort in cases of ongoing or repeated breaches. 3.25 In each case, a mediator will have to make tactical judgments as to the appropriate intervention. The judgment is made with the overall objective of providing a constructive climate for decision-making through the appropriate amount and form of process management. Sometimes judgments will be correct, at other times not, and there is no exact formula which can be applied to all situations. Such is the ambiguity which mediation shares with life.

Acknowledging concerns 3.26 Here a mediator does what might not have been done by any other professional or helper with whom the client has been involved, namely to acknowledge the nature and intensity of their concerns and feelings. This is achieved through the technique of active listening which is a core skill of mediators and which engages multiple intelligences. This important technique is dealt with further in 6.35.

Normalising 3.27 Normalising is the other side of the acknowledging coin. While mediation clients might be convinced that their problems are unique and unprecedented in their gravity, it is appropriate at certain times to normalise their situations. Thus they might be informed that it is

normal for people in business to make mistakes and customary to attribute malice where the other side errs. Likewise the difficulties which parties are encountering in their negotiations can be normalised, for example that it is usual for negotiating parties to feel that they have conceded too much and have difficulty making the final concession. In relation to extreme first offers parties may be reassured that these are starting points only, not end points, and that this is a normal part of the bargaining ritual. [page 56] One objective of normalising is to open parties to the notion that as other persons have been in their situation, they might consider how they have resolved the same kinds of problem. This is intended to shift them from the perception that their situation is hopeless and without remedy to one in which there are precedents and possibilities which they could be thinking about.

Getting out of the past into the future 3.28 Mediation is said to be a future-focused process. In general it is not obsessed with past events and with historical facts, as are other forms of dispute resolution such as litigation and adjudication. However, this does not mean that mediators ignore past events relevant to the parties. It is normal for parties to feel intense emotion, in particular anger, about the past but less easy for them to do so in relation to the future. In mediation parties may need to devote some time to dealing with prior events. Talking about the past can be cathartic for some parties. It may be helpful to deal with past misunderstandings and to explore these issues; it may be relevant to review and understand how parties have tried to sort out the problem in the past. At the same time it is important to remember, as explained previously, that parties may be in different stages of the grieving process and that while one may wish to revisit the past, the other is ready to move on to a new future. Here a

mediator needs to harness multiple intelligences to read the situation and find a balance between usefully exploring the past and redirecting parties’ energies from a negative and destructive history to problemsolving the creation of a different future.

Mutualising the unhappiness 3.29 Charlton and Dewdney (2004: 16) use the phrase ‘mutualising the unhappiness’, which highlights an important educative function of mediators. Parties often assume that the unhappiness in the mediation room is theirs alone and that the other side is in a state of bliss or mild euphoria. Where this is not the case — and it seldom is — a mediator can point out that the other side is in reality unhappy about the fact that they have had to move considerably off their bottom line or have had to make concessions on key issues. This has the potential effect of reassuring each side on the acceptability of a proposed settlement — while it may not be what they wanted, it is certainly not what the others wanted. Needless to say the disclosure of the mutual unhappiness might require the consent of the parties — one or both may not wish to reveal the extent of their dissatisfaction with the way a mediation is unfolding and with an imminent settlement.

Reducing pressure to settle 3.30 Sometimes mediating parties feel a great sense of pressure to settle. This feeling may emanate from the misconception that mediation is nothing more than a ‘horse-trading’ exercise with the mediator and the lawyers putting pressure on parties to compromise. Alternatively, it may arise from a situation [page 57] where reluctant parties are subject to a mandatory judicial referral to mediation and harbour concerns about court sanctions should they not settle.

Where the pressure to settle is felt, it can provoke resentment and resistance and become a major obstacle to actual settlement. One way of reducing the sense of pressure on parties is by reassuring them that they are not obliged to settle in the mediation. This is to emphasise the self-determination principle, namely that it is up to the parties to make decisions on all matters, including on whether mediation is the right place for them to be. In some contexts there might be drastic consequences of not reaching settlement, for example denial of further legal aid or limited access to a court. Nevertheless it is a defining feature of mediation that there will only be settlement if both parties agree and the ‘no deal unless you both accede’ theme can be a reassurance for some parties. It could be taken further, with a light touch, for example ‘It’s okay not to agree — someone has to make up the 15 per cent of cases that do not settle in mediation’. With the pressure to settle reduced, parties may find it easier to move from an entrenched positional approach to a negotiation space which allows them time to explore their interests and needs with a view to reaching a collaborative outcome.

Relieving tension through humour 3.31 Humour can be an appropriate way of relieving tension in situations from the classroom to the dentist’s room. Humour provides physical relief through laughter, relaxes people emotionally and takes them out of the characters they have been playing. Laughter is also a shared and common response from people who might not have much else in common. It can also provide insight and a change of perspective. In mediation, the timing and focus of humour is critical. Mediators should leave their party routines at the door and use great sensitivity in the joke-telling department. If humour is used too early it may set a flippant tone and suggest that the mediator is not taking the matter seriously enough. It should preferably be aimed at mediators’ own frailties (‘My role as mediator is like an AFL umpire, but I don’t get to appear on TV’) or at the situation (‘I’m sorry, if I share that confidence

with you I’ll have to drink hemlock’) and should not be aimed at the parties.

Dealing with Intense Emotions 3.32 Intense and strongly expressed emotions can seriously affect the climate of mediation. Strong emotions are often expressed in mediation, despite the naive view that because mediation is a ‘collaborative’ and ‘nonadversarial’ process all destructive and negative elements are miraculously avoided. This view confuses structure, on one hand, with style and behaviour, on the other. Mediation is collaborative in structure but this will not always prevent parties and advisers from being positional, adversarial and bloodyminded in style and behaviour. [page 58] One of the difficulties with emotions is that they can be triggered more quickly than it takes the rational mind to assess situations and decide how to react. While ‘positive’ emotions such as joy and contentment are not problematic, the ‘negative’ emotions such as fear and anger are a challenge for most mediators. 3.33 Some mediators attempt to prohibit the expression of negative emotion as it is seen to be dysfunctional in the mediation room, although one suspects it might also be because they feel uncomfortable with high emotion themselves or do not feel professionally equipped to deal with it. The NMAS Practice Standards s 7(3)(b)(vii) identifies ‘potential responses to high emotion’ as a required mediator skill. As the expression of emotion is an important form of communication, a blanket prohibition policy will restrict certain forms of communication and undermine many of the potential benefits of mediation. Neuro-science tells us that emotions play an important part in balanced, ‘rational’ decision-making. So suppressing emotion in mediation may result in confusion and poor decision-making. It may

lead to false progress where parties seem to move forward in terms of approaching settlement but then for no apparent reason change their minds. Suppressing emotion can also lead to outcomes which are superficial and have compliance problems. Minimising emotional input in mediation could effectively mean that parties tip-toe around the conflict and do not address it, so that even if settlement is reached the real conflict between the parties remains. Expressing authentic emotion, such as anger, can have the advantage of indicating to others a depth of feeling and sincerity. However, anger and other ‘negative’ emotions can also change the parties’ focus from trying to solve the problem to attacking the other side, cloud their objectivity and lead to angry retaliation and entrenchment. 3.34 There are various ways of dealing with strongly expressed emotions during the course of mediation and there are differing views in the literature and among mediation practitioners about the most appropriate interventions. In keeping with the style of this book, no attempt is made to indicate whether a particular approach is suitable or not; instead suggestions are made as to the potential advantages and disadvantages of each. As usual, these responses shade into one another and there may be elements of more than one in a single mediator intervention. Five ways in which mediators might respond to intense feelings are set out below: see 3.35-3.39. Reference will be made to the following workplace fact scenario in assessing each approach. Case illustration: Anton and Amanda Anton, the supervisor, has just demoted and changed the sales area of Amanda, a salesperson, for not meeting the specified performance criteria. Amanda has lodged a complaint over the demotion and move to a new

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sales area. In terms of company policy the matter has come to an internal mediator. Amanda has just had an intense outburst of anger and frustration over victimisation, discrimination and lack of training, allegedly arising from Anton’s actions and inactions.

Discourage the expression of intense emotion 3.35 Mediator: ‘Amanda, it’s not going to help here if you get angry and shout. Let’s talk about how you calculated your sales figures against the target figures for the last six months.’ As suggested above, this is often the practice of mediators who feel unable to deal with high emotion or regard it as irrelevant to a problem and therefore attempt to prevent its expression as soon as it surfaces. This might be advantageous where resource limitations necessitate only a short mediation and the parties need to be kept focused. However, it has the potential disadvantage of causing further frustration and discontent for the emotive party and of jeopardising the longer-term success of a mediation.

Ignore the emotion and proceed with mediation 3.36 Mediator: ‘Amanda and Anton, I thought we were trying to provide some answers to the second question on the board, namely how can the sales areas be structured in a way which is fair to Amanda and other salespersons. Let’s see how this can be done …’ Here the mediator does not intervene to suppress the expression of emotion but ignores it and moves on. He uses whiteboard visuals to focus the parties’ attention on the problem and distract them from the interpersonal hostility. This has much the same advantages and disadvantages as the policy of discouraging the expression of emotions in the first place. A refinement on this strategy involves distinguishing between

positive and negative emotions: mediators acknowledge and validate the former, for example the optimism and hope present in the early stages of a joint initiative between the mediating parties, and ignore and disregard the latter, for example intense anger over a party feeling betrayed.

Acknowledge the emotion, then continue 3.37 Mediator: ‘Amanda, it sounds as though you feel extremely frustrated and angry about how you have experienced your treatment and that the last four months at work have been exceptionally difficult for you …’ Here the mediator explicitly acknowledges the presence of the emotions and their intensity, whether they are expressed directly by the party or are evident from behaviour, tone of voice or body language. This approach is designed to give the emotive party the satisfaction of being heard and understood by at least one professional. [page 60] From the mediator’s perspective, there is an expectation that this validation will encourage Amanda to move forward from the emotional state to practical decision-making. Where this intervention is made in the presence of the other party, it also results in that party having to listen not only to the expression of emotion by the first party, but also to the emotion being identified and named by the mediator. Such acknowledgment by the mediator may convey to the party at whom the emotional outburst is directed an appreciation of the level of hurt, the intensity of feeling or the passion of the first party. Some mediators are nervous that such acknowledgment might provide a licence for more extensive emotional outbursts and further complicate a dispute. However, acknowledgment does not equate with approval and in our experience continued emotiveness is a rare occurrence where strongly felt emotions are expressed and then

acknowledged. The mediator might wish to add an educational dimension to this approach by indicating that mediation in itself might not resolve the intense hurt or anger, as the case may be, and encourage parties to seek other assistance in this regard.

Encourage some expression of the emotion to the other 3.38 Mediator: ‘Amanda, can you tell Anton exactly what you felt about the change in your level of responsibility and what effect it had on you emotionally and physically …’ Here the mediator explicitly invites an expression and explanation of emotion from one party to the other; in turn, the mediator might invite Anton to explain how he felt about making the decision to change Amanda’s role and sales area or how he feels now about Amanda’s condition. The advantage of this approach is that it allows parties to get things off their chests, to release pent-up feelings and, after acknowledgment by the other party or the mediator, to move on to the problem at hand. It also encourages each party to focus on how the other party is feeling and to reflect on the emotional consequences of their actions on the other. This approach has the same potential benefits and disadvantages as the previous one. It might be particularly valuable where a party is inhibited or uncomfortable about expressing emotion without some encouragement from the mediator. However, some judgment and control is required to ensure that neither party is injured by the other’s articulation of emotion and there may need to be limits on the duration of this exercise.

Identify and deal with underlying problems therapeutically 3.39 Mediator: ‘Amanda, it sounds as though you have been traumatised by this ordeal and that you have lost confidence and selfesteem. You may also be clinically depressed. Those issues need to

be dealt with first through other means …’ This response is something that can only be undertaken by those professionally qualified to do so. It has the advantage of dealing with [page 61] underlying emotional or relationship difficulties which might prevent parties from coming to decisions, or which might jeopardise the longterm durability of decisions reached. It has the disadvantage of delaying the making of decisions on matters requiring immediate attention and of blurring the boundaries between mediation, on one hand, and counselling and other therapeutic practices, on the other. Most mediators would adjourn the mediation and refer Amanda to another professional if they took the view that the problem needed professional therapeutic treatment. In relation to inter-professional relations, the NMAS Practice Standards s 8(1) provides that: Mediators should promote cooperation with other professionals and encourage clients to use other professional resources when appropriate.

In addition the Practice Standards provide the following guidelines on referral to other professionals. Section 5(3) states: A mediator should avoid conflicts of interest, or potential grounds for bias or the perception of a conflict of interest, in recommending the services of other professionals. Where possible, the mediator should provide several alternatives if recommending referrals to other practitioners and services. [Emphasis added].

Selecting a response strategy 3.40 In selecting a strategy for responding to emotions mediators need to recognise the emotion distinct from the symptoms (for example a party may be attempting to suppress fear or feign anger), diagnose it tentatively and test out an intervention. If the diagnosis is

that a party is deliberately using anger to force a compromise, the appropriate response may be to ignore it. If the mediator diagnoses a potential build-up in emotion, he or she may attempt to manage it by acknowledgment. If the emotional situation appears to be getting in the way of one or more parties’ ability to think clearly, move forward or make decisions, a mediator might intervene to create some safe space in the mediation. This may involve calling for an adjournment, bringing in refreshments and engaging temporarily in social conversation, conducting a round of separate meetings, getting parties to write points on the whiteboard or making other procedural changes to allow for some cooling off.

Dealing with Criticism 3.41 Because of the way in which mediating parties view the dispute and each other, they often expressly or impliedly engage in criticism. Many humans deal poorly with criticism as it is often experienced as an attack on the innate value of the person criticised. This provokes angry, defensive or diversionary responses. Ideally mediators should attempt to keep the parties out of a cycle of criticism, defence, justification and counter-criticism, though this may not always be possible or even wise. Indeed, they should try to understand better [page 62] what the criticism is about and acknowledge the underlying emotional feelings. Where there is persistent criticism, mediators need to judge which of the following strategies, or combination thereof, might be appropriate. The responses are based on a manufacturer criticising a supplier for being ‘slack, inept and unreliable’ over times for the delivery of supplies: Reframe the criticism in terms of actions, events or views and not in

terms of the innate value of the criticised party (on reframing, see 6.39-6.45): ‘So you say the late deliveries affected your production schedule?’ Ask the criticised party to make a response in relation to the action, behaviour or idea and deflect attention from the self: ‘Can you explain a little more about the difficulties associated with delivering the goods on time?’ Ask the criticising party to move from the general to the specific without imputing motives to the other. ‘In relation to the timing of deliveries, can you give some specific examples of when they arrived after the date on which you expected them?’ Ask the criticised party to indicate how they feel about the criticism and then ask the critical party to respond to the other’s feeling statement: ‘How do you feel after hearing the manufacturer’s comments on his predicaments with customers?’ Ask the parties to suggest ways of dealing with the issue which is the subject of criticism, in the present and for the future: ‘How might you be able to ensure reliable deliveries in the future?’

Overcoming Clients’ Fundamental Fears 3.42 It is clear from the previous sections in this chapter that mediators can have important roles in reducing the defensiveness of negotiating parties. Many parties in mediation anticipate the worst possible outcome (that they will never see their children, that they will receive no compensation for their injuries) and this perception causes them to defend their positional claims at all costs. Of course there may be some realism to this anxiety but a party could also be negatively obsessed with an outcome which has not been decided and is not inevitable. In either event, this fear-induced defensiveness is not conducive to constructive problem-solving and can represent a major obstacle to moving the mediation forward. It can paralyse a party or lead to avoidance, capitulation or intransigence. 3.43 Epstein and Epstein (2010) explain that mediators need to recognise and draw out the parties’ fears. Silent fears tend to loom large and appear insurmountable compared to fears and anxieties

discussed openly. A frank exchange with a mediator may assist a party to acknowledge the realities of the past and to recognise the challenges and possibilities for the future. [page 63] Here a discussion and assessment of relevant opportunities and risks may be appropriate: see further on risk assessment 8.16-8.20. In the context of family mediations, Haynes and Charlesworth (1995: 163) refer to the need for mediators to attempt to reduce their clients’ defensiveness. They suggest that mediators should reduce the fear early in the intake by asking the parents, ‘What is the worst possible outcome of working with me?’ When each parent outlines this fear it is usually an unrealistic concern, that is one based not on fact but on emotion. The mediator then asks each parent if he or she can agree that the worst fear of the other parent will not materialise through mediation. For example if both parents state that the worst possible outcome would be ‘losing the children’, the mediator asks each parent to affirm that through the negotiations the other will not lose their role in parenting the children. As this is understood and accepted by each parent, the need to defend against the possibility is diminished and each parent can spend their energy thinking about new solutions rather than defending against old fears. The same strategy can be adopted in respect of other kinds of disputes where the ‘fundamental fear’ syndrome is evident or suspected in mediation.

Preserving Face and Avoiding Loss of Face 3.44 Here the term ‘face’ is used in a broad sense to refer to the need humans have to project a particular social image and to retain a sense of dignity and self-worth in the eyes of others and in their own eyes. Conversely, a loss of face involves a perceived loss of that image, dignity or self-worth. The ‘face’ issue can be a major factor in the

origins, continuation or escalation of conflict, whether between two siblings over their academic achievements or between two countries over their performances in a soccer match. A mediating party might feel they have lost face where they have made significant concessions from their original position and their refusal to make further concessions, however commercially illogical, might be motivated by the need to maintain vestiges of face. Another common occurrence is for a party to be motivated by fear of how they will appear to outside ‘ratifiers’ (see 5.82) if they make further concessions. In each case this subjective factor becomes the dominant driver of conduct, as opposed to the real interests over which the parties are negotiating. The role of face may be more significant where parties bring ‘constituents’ to the mediation. Here constituents are people who have listened to and invested in one party’s story and that party’s image of himself or herself within the story. These may include friends, relatives, supporters, members of that party’s organisation and even professional advisers. It is more difficult for parties to let go of part of their self-image and accept a loss of face in the presence of those who have accepted and are supporting their view of [page 64] events. Mediators should take this factor into account when discussing with parties who should attend a mediation. While the ‘face’ phenomenon is common to all strands of humanity, it has different significance according to culture. In some cultures any notion of compromise or concession on principle may involve a potential loss of face, whereas in others the problem is less acute. 3.45 The ideal is that in mediation everyone should preserve face, and conversely that no one should lose face. Mediators can contribute to these goals by conducting mediation along best-practice lines in terms of principles referred to in this book. In addition there are specific techniques which can be adopted:

Using ‘objective’ criteria from an ‘independent’ source as a basis for securing a party’s agreement rather than having them feel that they are conceding to the other side’s proposal: see 7.47-7.49. Using the technique of blaming a third party, such as the bank or the government (both popular blamees), or an external factor, such as the global financial crisis or climate change, in order to remove or reduce blame and a sense of responsibility from the disputing parties. Using the ‘scapegoat strategy’. This is where a mediator engineers matters so that the parties can blame him or her for a proposal or outcome, thereby justifying their own conduct (as with the ancient ‘scape goats’ which were loaded up with a village’s problems and driven into banishment, leaving the villagers problem-free). Conversely, a mediator might personally endorse a mediated outcome, even in writing, in order to assist one of the parties to deal with outside ratifiers or constituents. This is, however, a risky strategy and might lead to the mediator being held liable for the outcome: see 12.55. Using the technique of ‘mediator vulnerability’. If one party does not understand a term, ask for your sake that it be explained. If parties continually interrupt each other, explain that you are having difficulty in hearing or concentrating on what is being said. Again there are obvious limitations on this technique, lest you appear foolish or feeble. Providing reasons for a change in negotiating position, for example ‘in the light of the new information we have heard for the first time today …’, or ‘in light of the concessions you have heard them make …’. These can be useful interventions for professional advisers who need face-saving reasons for departing from advice previously given to their clients. Using interim agreements. This is a classical negotiation strategy used to get deals accepted on a short-term basis (‘say for the next two months …’) without making any face-losing concessions on matters of principle, which can still be negotiated on in the future. In some cases ‘the temporary becomes the permanent’ and the interim agreement is ratified without problem because it can be done without loss of face.

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Mentalising 3.46 This chapter works eclectically with many counselling and psychological ideas, and there is one concept that brings many of these ideas together in a neat package — mentalising. Dr Jill Howieson of the University of Western Australia is a pioneer of mentalising in the mediation context and has provided the following explanation of the concept and practice of mentalising and how it builds on other mediator skills. The theory of mentalising which derives from the work of Allen, Fonagy & Bateman (2006: 2008) brings together research in the areas of psychoanalysis, clinical practice, neurobiology, attachment theory and developmental psychopathology and refers to the activity of understanding your own and others’ behaviours based on intentional mental states, such as needs, desires, beliefs, feelings, thoughts and so on. For mediators mentalising is a concept that can help in understanding some of the psychological processes taking place among mediation participants. Mentalising involves an attendance to the mental states in oneself and others and is a core agent of psychological change. One of the hallmarks of the capacity to mentalise is not to assume the mental states of others. We cannot ever fully know the mind of another and sometimes we do not know our own mind. For instance, when we are in conflict we can lose the ability to interpret our own mental states as our narrative about the conflict has become so entrenched. We also lose the ability to interpret the mental states of the other party as we attribute certain mental states to them in keeping with our own narrative (for instance, ‘they just want to hurt me’, ‘they want revenge’, ‘they are interested in seeing me fail’). [See 3.8 Selective perception.] This phenomenon has been observed by neurobiological scientists who have shown that escalating levels of emotional stress can create a shift in brain functioning. In times of stress or arousal a neurochemical switch takes place in our brain as the limbic system opens up and we shift from flexibility to automaticity as a type of safety mechanism to deal with the emotional chaos: see Allen et al (2008: 134). Mentalising has the potential to assist parties attune themselves to their own mental states and to those of others. More importantly mentalising can help parties understand their own and the others’ behaviours based on those mental states. In this way parties can comprehend more fully the nature of a conflict and work towards ways of resolving it. So how does this multi-dimensional concept of mentalising assist in the resolution of conflict and what is the relationship between mediation and mentalising? First, when we experience mentalising and mentalise ourselves, we are able to communicate clearly since we hold in mind the perspectives of others; we understand other people’s behaviour better; and we have a sense of being in control of our behaviours and of ourselves. However, we lose mentalising capacity when we become highly emotional,

for example when we are experiencing conflict or considerable stress. Taking part in the process of mediation can create space for the parties to mentalise. This in turn can assist the parties to become open to a range of possibilities for understanding past adversities, for judging the motives and feelings of others in the present and for detecting realistic alternatives for the future: Stein (2006: 311).

[page 66] Mentalising is not the crux of resolving disputes but as Stein (2006: 323) explains, the kinds of cognitive operations involved in mentalising can be very helpful — considering and playing with alternatives, forecasting their impact on self and others, and being able to think flexibly. Thus mentalising can also be useful in mediation by providing a conceptual framework to explain what might be happening when shifts occur in the thinking and feeling between parties and when there are improvements in the parties’ relationship after mediation has finished. So how can mediators use this conceptual framework? One way a mediator could use the mentalising concept is by taking what Allen et al (2008) call ‘a mentalising stance’. This involves assuming an inquisitive and ‘naïve enquirer’ role rather than the role of an expert. Nobody can ever know another’s mind, so therefore continuously enquiring and clarifying what is in the mind of the parties will assist them come to a greater understanding of the underlying nature of their conflict. Secondly, nothing shuts down mentalising more quickly than thinking that we ‘know’ what is in another’s mind. Therefore mediators need to be constantly vigilant that they are mentalising themselves and not colonising a particular view of the truth, or of the parties’ situation. That is, mediators need to constantly monitor their own mental states as well as those of the parties and restrain themselves from any urge to be definitive about how the parties might best resolve their dispute or about what the parties’ might be experiencing. Some ideas of how mediators could use the mentalising concept in their work include: continually seeking parties’ understanding of each other’s perspectives by asking open questions and probing, testing and correcting the parties’ readings of their own and the other’s mental states; assisting parties to appreciate differences between their own experiences and those presented by the other party, for instance by summarising and paraphrasing the parties’ understandings of their own and the other’s mental states; focusing on moments of meeting — when the parties are working on the same mental landscape, for instance by identifying when parties have shared understandings of their mental states; making ordinary, authentic and non-expert interventions to encourage parties to share their thoughts and feelings and their understanding of the others’ perspective — again by asking open and clarifying questions and summarising and paraphrasing the parties’ own words; using plain language and refraining from using minimising words, for example ‘just, obviously, clearly …’ (nothing is likely to be obvious or clear when one considers the terrain of mentalising); and making a conscious effort to refrain from reducing parties’ experiences to a general

pattern rather than exploring the experience, and the parties’ experiences of it, in more detail. Importantly in the family mediation context, babies and children are considered to have a ‘mentalising’ mind and are attuned to the mental states of others and in particular those of the primary caregiver. Therefore, an

[page 67] important part of family mediation is to attend to the past, present and future mental states of babies and children, as well as the mental states of the parents: see Howieson and Priddis (2010). The following examples of mentalising and non-mentalising interventions are drawn from two family mediations. In the first scenario, a father whose wife wanted to relocate to Melbourne, kept repeating in mediation, ‘You don’t want to live in Melbourne, all your friends are here and your home is here, you don’t want to go.’ Sensing that the father was reluctant to admit to himself that this is what his wife really wanted, the mediator asked, ‘If you were able to see inside your wife’s head, what would she be saying to herself?’ The father replied, ‘Oh she would be saying that she desperately wants to live in Melbourne.’ After a pause the husband said quietly, ‘I haven’t wanted to admit that to myself because it hurts me too much and I’m afraid that I will lose contact with my son.’The mediation from this point on focused on ways that the father could visit his son in Melbourne. In the second scenario, a mother expressed to the mediator in separate session that she was quite afraid of her husband, to which the mediator replied, ‘Well you know wives often feel afraid of their husbands in times like these, why don’t you just put that thought aside and tell me what you think of the option that your husband is suggesting.’ At this point the wife disengaged from the mediation and it concluded soon afterwards with both parties still in considerable conflict. The first scenario illustrates the type of questioning that can assist parties to bring their mentalising back online and to explore their own and the other party’s mental states. The second scenario highlights the way that a non-mentalising intervention, or in this case a reductionist intervention, can neglect to explore a party’s full experience and thus create a sense of alienation and disillusionment.

Improving the Climate 3.47 The following scenario illustrates how some of the principles outlined in this chapter can be applied to a highly sensitive and emotive mediation situation. Case illustration: Improving the climate Lisa, a 32-year-old interior designer from Brisbane, died following

routine surgery in a state hospital to repair a torn anterior cruciate ligament in her left knee, sustained while playing netball. Her husband Richard was devastated and blamed the anaesthetist and surgeon for medical malpractice. After a lengthy coronial inquiry, Richard initiated legal proceedings against the State of Queensland on grounds of medical negligence. The solicitor acting for the state suggested that the issue should be addressed via mediation and although Richard was reluctant he agreed to proceed. The mediation was conducted under difficult circumstances because of the grief that Richard was suffering, the fact that Richard relied on Lisa for financial and emotional support following the onset of his Myalgic Encephalomyelitis (ME) and government’s concern about adverse publicity which was escalating in the media.

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The following steps were taken to improve the climate for the grieving spouse: 1. A relaxed, informal venue was chosen for mediation, namely the clubhouse at the Yacht Club. 2. Care was taken in restricting the number of professionals at the mediation; all parties agreed to exclude counsel, technical experts and accountants who might otherwise have been present. 3. Richard’s solicitor met with Richard several times before mediation to inform him about the mediator, the nature of the mediation process and his role in it. 4. Through prior agreement of the professionals, Richard was allowed extensive time to talk about Lisa, her netball accident and the surgery, the effect of the loss on his life and his outrage at the official responses to his plight, without any

restrictions in relation to length or relevance. 5. There was considerable acknowledgment by the solicitor acting for the State, who had undertaken mediation training, of Richard’s loss, anger and frustration. 6. During the ‘technical’ discussions on liability and quantum of damages Richard was allowed to leave the room and wander around the grounds, returning in his own time. 7. When agreement was reached on all matters it was further decided to allow Richard 24 hours in which to consider the agreement before committing to it.

While these actions were mainly for the benefit of one party only, they had the support of the others and illustrate the practical application of some of this chapter’s principles.

A Final Word on Authenticity 3.48 Bowling and Hoffman write that ‘… the effectiveness of our interventions [as mediators] often arises not from their forcefulness but instead from their authenticity’: Bowling and Hoffman (2000: 19). Authenticity involves knowing one’s self. As with other skilled helpers, mediators need to be attuned to their own responses to emotional outbursts and other challenging behaviours and develop mechanisms to manage those without adversely affecting the mediation. Mediators become part of the conflict dynamic they seek to help resolve and therefore their personal qualities may, both intentionally and unintentionally, influence the process and its outcome. Here the concepts of mentalising and mediator mindfulness are helpful. Mentalising has been considered previously and the rest of this section focuses on mindfulness. Being mindful begins with a heightened awareness of self. As a mediator this means being aware of what you as a person bring [page 69]

to the mediation table: your likes and dislikes, prejudices, personal conflicts and so on. Such awareness increases emotional and social intelligence and one’s ‘intuitive’ ability to select appropriate interventions. Moreover, it helps mediators understand and manage their own reactions to parties’ behaviours, for example feelings of discomfort, irritation, impatience or uncertainty. Mindfulness also involves openness, curiosity and sensitivity and the ability to question one’s own assumptions. Mindful mediators treat each conflict as unique and conduct the process with professional curiosity about the parties’ priorities and feelings. By contrast, mindless mediators may find themselves: trapped by categories (this is a value dispute; she is a control freak; this is about the money); engaged in automatic behaviour (identifying same or similar agenda items for disputes in a particular category; always dealing with intense emotions in the same way); and acting from a single perspective (emotions have no place in business disputes). Mindless mediators may not be aware of the factors driving their behaviours. Consider, for example, a mediator whose professional identity is defined by the opening statement, ‘I have a 90 per cent settlement rate’. Here the core value of having a high settlement rate may encourage automatic behaviours such as overly-directive pressure for settlement. As another illustration, mediators who have been dogmatically taught a rigid mediation model may find themselves using certain ‘taught’ interventions without reflection. Most successful mediators have developed their own personal and authentic style. What works for one mediator in terms of humour, acknowledgment and other interventions to maintain a favourable climate may not work for another. Mindfulness is a useful mediator skill to increase personal self-awareness, sensitivity and authenticity.

Mediator Learnings 3.49 This chapter raises the following points of particular significance

for mediators: 1. In order to generate an improvement in the climate of a mediation and manage clients’ expectations, mediators need to develop their clients’ trust both in themselves and in the mediation process. 2. Mediators need to draw on multiple intelligences to expand their repertoire and inform their choice of interventions. In using different intelligences mediators also heighten their awareness of the range of emotions parties may be experiencing. 3. Mediators need to be mindful of their own emotions and attitudes and how this may affect the dynamic of the mediation and their ability to be impartial. [page 70] 4. While mediators are not acting as counsellors or psychologists, they need to draw from the skills and techniques shared with these practices and inherent in the nature of mediation to improve the problem-solving climate for the parties. Here the skills and techniques associated with mentalising are useful.

Tasks for New Mediators 3.50 Identify a dispute of some magnitude in which you have been involved as an employee, a consumer, a tenant or a student. Write out a list of the things which the employer, retailer, landlord or educational institution did or did not do between the emergence of the dispute and its ‘resolution’ and describe the effect these factors had on you emotionally. 3.51 Assume you are the mediator between Simon and Southern Slate Sculptures. What steps would you take to create a favourable climate for Simon? What effect might these steps have on the representative of Southern Slate Sculptures? 3.52 Discuss with a friend how each of you responds to intense

sadness and anger. Together, develop some strategies you might use for dealing with these emotions if you were working as a professional mediator.

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CHAPTER 4

Diagnosing, Defining, Designing Introduction Developing a Hypothesis Gathering Information Distinguishing between Positions and Interests Diagnosing the Dispute Defining Problems Appropriately: Identifying Issues or Questions Designing an Appropriate Form of Mediation Mediator Learnings Tasks for New Mediators

Introduction 4.1 Mediators can make contributions in many aspects of conflict resolution. In this chapter the role of mediators in relation to three aspects of sound conflict resolution practice is addressed: first diagnosing the nature of the conflict, second defining the issues in dispute (also defining what is not in dispute) and third designing an appropriate model of mediation for a particular dispute. Each of the three ‘D’ functions makes assumptions about resources such as time, information, expertise and money available for mediation. The greater the resources, the greater the scope for a mediator to diagnose, define and design; the fewer the resources, the less feasible this becomes. However, there is also a relativity about this: where resources are extensive there will still be limitations on how effective these functions can be, and where resources are restricted they can still be performed in a limited way.

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Developing a Hypothesis 4.2 In order for mediators to make appropriate interventions in the disputes of others they need to develop hypotheses on which to base each intervention. A hypothesis is a theoretical framework for understanding a dispute and the disputants. All the activities referred to in this chapter contribute towards the development of that hypothesis. The hypothesis is always tentative in nature, given the fact that conflict resolution is not an exact science and new actions or behaviours by parties might require revision of a mediator’s existing hypothesis. At the most general level all forms of problem-solving, such as plumbing and gaming, surgery and mediation, deal with the following three questions: Where are we now? Where do we want to be? How do we get there? Where mediation is being used to deal with problems, the hypothesis can be put at a more specific level: What are the causes of the problems facing the parties? What are the possible obstacles that might prevent a mediated settlement? What are the appropriate interventions which a mediator might make to assist in resolving or managing it? What are the possible outcomes of the problem-solving process? 4.3 The mediation hypothesis is different from a legal or behavioural science hypothesis. To illustrate the differences, let us take the example of a dispute between Funky Fashions, a clothing design company, and a former employee, Claire. Claire worked as a general designer at the company but after nine months she resigned and set up her own fashion design company specialising in evening wear. The Director of Funky Fashions alleges that this is in breach of the employment contract which restricts former employees from setting up a competitive business within six months of the termination of their employment. Table 4.1 shows how, with a little poetic licence, this problem might be approached and understood from the perspectives of law,

counselling and mediation:

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For present purposes it is the mediator’s hypothesis which is of importance. How this is developed and used is explained in the following sections.

Gathering Information 4.4 All dispute resolution methods need a certain amount of data, information and evidence with which to operate. Some, like litigation, are obsessed with data and information and have structures and procedures for identifying, obtaining, exchanging and validating them. Generally mediation has relatively few mechanisms for doing this, partly because it is not focused on questions of fact and partly because most mediators do not have [page 74] authority to order the production and verification of documents and other forms of evidence. In certain situations mediators have some authority in terms of legislation, rules of court or referral orders (see below) and in some situations they derive such authority from the Agreement to Mediate (see Appendix 4B), but in many others they have to rely on the moral authority deriving from their position as a basis for being involved in this aspect of the dispute resolution process.

Some obligations to provide information 4.5 The NMAS Practice Standards s 3(3)(d) provides that the objectives of an intake session may include: Checking whether any information needs to be exchanged, how this can be done and what information, documents or things need to be available during the mediation process.

Increasingly in Australia, legislation, rules of court and court orders are regulating aspects of mediation, including the provision of

documents and other information. The Family Law (Family Dispute Resolution Practitioners) Regulations 2008 contain an example of information that has to be provided to the parties by Family Dispute Resolution Practitioners (FDRPs), which include mediators. Regulation 28 provides that prior to the commencement of family dispute resolution each party must be given information which includes the following: the mediator’s role and responsibilities particularly in terms of providing legal advice and the FDRP’s confidentiality and disclosure obligations; admissibility of evidence; the relevant qualifications of the FDRP; the parties’ roles and responsibilities; the costs associated with mediation, including any hourly rate charged by the FDRP; the fact that family dispute resolution (FDR) must be attended if required under s 60I of the Family Law Act (the Act) before applying for an order under the Act; the circumstances in which a certificate may be provided under the Act; and information about how to complain about FDR or a FDRP. Court referral orders sometimes require parties to exchange information with one another, or to bring specified documents to mediation, or even allow the mediator to call for the production of documentation. Likewise Practice Note SC Gen 6, s 12 of the Supreme Court of New South Wales provides: [page 75] At the conclusion of the information session, if the parties agree to mediation, the officer will make the necessary orders. If the mediator is to be a registrar, directions may be given for the filing and serving of position statements and any documents, reports, valuations, etc that will assist the parties and the mediator. A direction will generally require all parties to the mediation to exchange relevant material not less than seven

days before the mediation.

Some Agreements to Mediate require parties to submit to each other and the mediator all information and documentation that would usually be available through the discovery process in legal proceedings. 4.6 Mediators need to be attentive to any legislative or contractual obligations pertaining to the disclosure of information by the parties or themselves. Assuming there are no statutory obligations, mediators should, at the minimum, ask the parties what information or facts are essential to enable them to make decisions in mediation, and where these are missing have the parties consider ways of obtaining them. The obvious example of essential information would be reports from valuers where parties need to negotiate over the division of matrimonial property, a business, shares, or similar assets of disputed value. One advantage of a mediator being involved in obtaining, say, the different valuations is that consideration can be given to ways of avoiding the ‘duelling experts’ phenomenon (see 10.39–10.43) which occurs where each side obtains widely differing valuations. The same obviously applies to other expert reports. 4.7 For lawyer — mediators a change of mind-set is needed on the information question. The reason why facts and documents are needed in mediation is not in order to resolve liability for past events, but so that parties can make personal and commercial decisions relating to their present circumstances and future plans. This is a different perspective to the information issue normally encountered in the legal system. Generally mediators should be mindful of the following aspects of information and data gathering, though their exact role in relation to each will depend on the context and circumstances of a mediation: procuring necessary documents, reports, tables, books of account and other forms of documentation; securing exchange of relevant information among the parties to the dispute; coordinating the verification of the data’s accuracy;

examining ways of dealing with uncertain, contradictory or missing information; encouraging agreements on facts, or obtaining clarity on fact differences between the parties; exchanging witness statements and experts’ reports in order to cut down on documents and paper; and preparing and exchanging mediation memos, case summaries or issues papers. [page 76] 4.8 To some extent this may be a limited exercise in that mediators have no way of ensuring that information gathered is accurate, comprehensive or properly understood by all parties concerned. Moreover, where mediation occurs in the context of litigation or other adversarial situations there will be reluctance to provide information as it will be seen as weakening that side’s case. Information is a source of power and mediating parties cannot be expected to relinquish their power merely because they have entered the mediation process. However, here a mediator can use gentle persuasion by indicating to parties that the issue is not whether they will exchange information, but when they will exchange it, that is either at mediation or when ordered to do so by a court or tribunal.

How much do mediators need to know about the facts of a dispute? 4.9 John Haynes, with a background in industrial relations and family mediations, suggests very little. In relation to family mediations he asks the parties: Who initiated the separation? When did that occur? How did the other side respond when they first heard about the decision to separate?

How does the other party feel about the separation now? This is a minimalist model of mediator knowledge and is appropriate for facilitative mediation where the main role of the mediator is to assist parties exchange information and ideas for settlement with each other: Haynes and Charlesworth (1995: 56). Many commercial mediators dealing with litigation matters would ask for more information, for example the pleadings, discovered documents, experts’ reports, witness statements and even correspondence. This is based on the assumption that there might be complex issues of fact, evidence and law on which the mediator needs to be prepared in order to assist the parties appropriately. This is a maximalist model of mediator knowledge and is appropriate for evaluative mediation where mediators play a more ‘interventionist’ role in the parties’ negotiations and decision-making process.

Four different kinds of written preparation 4.10 Preparation is addressed as one of the objectives of an intake process (see 2.12) in the NMAS Practice Standards s 3(3)(b). The provision explains that: Participants who are prepared and who have received relevant advice are in the best position to make an informed decision when attending a mediation.

Moreover, s 7(3)(a)(iii) and (b)(i) of the Standards identify preparation for mediation as an area of knowledge and skill required by competent mediators. [page 77] Mediators might require up to four different kinds of written preparation by clients, although most mediators will only require one or two of these. While each has its distinguishing features they all have the objectives of having each party bring coherence and

structure to their own case, of giving each party a cohesive account of the other side’s case and of informing the mediator. The documents can also be used as a point of reference in the mediation meeting. As regards their differences Table 4.2 describes the key features of each and is followed by case illustrations and further discussion. Table 4.2: Four kinds of written preparation Issues paper (also referred to Chronology of the dispute as Position paper) Where parties need to be Where parties have been in a reasonable and realistic in the lengthy personal or business formulation of issues and relationship and dates and events consider what the other party are relevant to settlement, it is needs to discuss, mediators useful to have a common may require parties to exchange chronology of dates and events a written list of issues — usually which they can jointly use as a no more than two to three point of reference. pages in length. Case summary Mediation memo Where a succinct update of legal Where mediators need parties issues and demands is required to to focus on issues of a non-legal provide the mediator with an nature, for example those overview and get parties and relating to commercial interests, lawyers focused on those issues, personal priorities or workplace case summaries are useful. They dynamics, mediation memos usually set out the claim, are called for. Parties are also pleadings, legal authorities, legal requested to identify the details issues, material aspects of the of walk-away alternatives and dispute and include key complete risk analyses. documentation.

Case illustration: Use of dispute chronology in retail leasing In a retail leasing dispute the professional advisers came to

mediation on steroids, intent on contesting the relevance of legislation, dates of crucial payments, the calculation of damages and corrosive correspondence between them. Before mediation proper began the mediator requested the parties and advisers to assist in developing a common chronology of the lease relationship on the whiteboard. Only matters of joint agreement were written up. All parties collaborated in the exercise, the parties using their memories and some documents and the lawyers canvassing their files as they ‘negotiated’ an agreed chronology. The exercise focused on an external reference point, the whiteboard, lowered the temperature in the room and resulted in a comprehensive chronology of the business relationship, with

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two points of disagreement (both on dates) marked up in colour. While the exercise left open the resolution of the substantive issues between landlord and tenant, it provided initial negotiation success and was a point of reference in subsequent problemsolving stages of mediation.

Case illustration: Use of case summary in a commercial dispute In a complex commercial litigation matter, the mediator conducted preliminary conversations with each of the parties and their lawyers. Before long it became clear to the mediator that one side had an unrealistic attitude as to expected outcomes from mediation; on the other side the lawyer considered her client had a strong legal case. The mediator, who described himself as having an evaluative style, informed the parties that he thought it

best to conduct a ‘blended process’ and they agreed: see 8.38 on NMAS blended processes. To this end he requested a case summary from each party which would set out: the claim, pleadings and relevant authorities; the legal issues in the dispute; identity of key decision-makers; key documents relevant to the dispute such as essential contractual documents and expert reports; any court orders, interim applications and their outcomes that influenced the course of the dispute or could influence the mediation; and demands, offers, counter-claims, negotiations and other past developments between parties. Here the aim of the mediator was to receive documentation that would quickly bring him up to speed on the matter and at the same time force the parties and their lawyers to do their homework prior to mediation. The mediator also required the parties to exchange this documentation — a factor which encouraged them to be accurate and reasonable in preparing their case summaries. The parties and their lawyers arrived at mediation focused on the legal issues. With the aid of the case summaries the mediator was able to advise the parties and guide them to an acceptable outcome in a one-day mediation meeting.

Case illustration: Issues papers in a workplace dispute In a dispute between a senior executive and her employer, the parties were unable to focus on a set of issues. Instead both frequently lapsed into a ‘he said, she said’ bickering routine bolstered by extravagant and unrealistic demands. The mediator held separate preliminary conferences with the parties and their advisers and asked them the following question, ‘If you anticipated resolving this dispute today, what do you think are the

issues that you and the other party would need to talk through?’ As the parties and advisers began to respond, the mediator explained that each party would need to prepare a written list of issues to exchange with the other side. Faced with the prospect of having to share their written list of issues with the other side and keen to impress the mediator, each party did their best to produce a reasonable and considered issues paper in the hope that this would influence the agenda of

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the negotiations to follow. At the mediation meeting the mediator referred to the issues papers from time to time to keep the parties focused on and realistic about resolution. Note: Sometimes lawyers will fill issues papers with legal claims and positions. Where a mediator suspects this may occur, it may be advisable to request a case summary for the legal aspects of the case and an issues paper for a broader perspective of what the parties will need to discuss at mediation.

Case illustration: Mediation memos in a construction dispute A long-standing multi-party construction dispute in a mid-sized Australian town had transformed into a public feud among a number of the parties that had escalated to include their family members. The mediator’s approach for this case was to spend considerable time helping the parties focus on non-legal as well as legal issues. She therefore requested the parties to submit mediation memos which contained the following information: solicitor — client costs incurred to date;

a good faith estimate of solicitor — client costs of pursuing the matter to conclusion of a final hearing, and any likely appeals; likely exposure for costs if the case is lost; likely shortfall between party — party costs and solicitor — client costs if the case is won; a description of any underlying personal or business interests or involvements that might be relevant to settlement and the opportunity costs they involve; walk-away alternatives such as a party’s best alternative to a negotiated agreement (BATNA): see 4.25; and a comprehensive risk assessment: see 8.16–8.20. The mediator worked with all parties over a number of weeks to ensure that the memos focused on the information required; she made it clear that if parties wished to submit additional legal material, they could do so in a separate document such as a case summary. By the time the day for mediation arrived, all parties were aware of the importance of resolving the non-legal issues before addressing the legal ones and this made the mediator’s job significantly easier.

Distinguishing between Positions and Interests 4.11 Before examining the mediator’s role in diagnosing and defining the problem, it is necessary to define some basic terms relevant to these functions: Positions: the demands or claims which parties in dispute make of the other side; positions are also known as solutions or outcomes, that is the things parties say they want to get out of mediation. Other terms might be wish lists or wants. [page 80]

Interests: the factors which underlie parties’ positional claims and which are actually motivating them in the negotiations. Interests can also be referred to as the motivations, concerns, or needs of the parties. Positions and interests, in these senses, are often closely connected, sometimes different sides of the same coin. However, a positional claim may disguise or conceal a party’s real interests. Thus a residential parent in a family mediation might make the positional claim that the children should have no overnight contact with the other parent, when their real interest is in having one night to themselves every weekend. Likewise a farmer in a farm debt mediation might make the positional claim that they want the loan restructured, when their real interest is to leave the farm with a sense of dignity after the next harvest. Positional claims could be motivated by revenge, fear, ignorance or professional advice, and they could disguise parties’ real interests even from themselves. 4.12 One way of turning a position into an interest is to ask the question, ‘Why is the position important for you?’ This is not to suggest that mediators should regularly ask the ‘why’ question as it might elicit defensive or protective responses, but it indicates the relationship between positions and interests. Another way to ask this would be, ‘What is it about the position that is important to you?’ There are three kinds of interests: substantive, procedural and psychological. Substantive interests are those which relate to concrete factors, such as money or conditions of employment or a specific quality of performance, as the case might be. Procedural interests are those relating to the way in which the dispute has been dealt with, or not dealt with; for example a lack of response to complaints, inflexibility in dealing with Figure 4.1: Three kinds of interests

[page 81] exceptional circumstances, or inequality in the treatment of similar people. Emotional interests refer to psychological, emotional and relational needs, such as desire for vindication in respect of past actions or acknowledgment for hurts and injuries suffered. The three different kinds of interests are represented visually in the preceding diagram. 4.13 The NMAS Practice Standards highlight the important place of interests in the mediation process. Section 2 describes mediation as a process which may ‘(e) facilitate an awareness of mutual and individual interests’ and ‘(g) promote a focus on the interests and needs of those who may be subject to, or affected by, the situation and proposed options’. In focusing on the interests behind positions, the parties may discover that there are matters on which they are not in conflict. Some interests may be shared by both parties, and there may be some interests of one party which are not incompatible with those of the other. Even where interests are in conflict, it may be more feasible to develop creative options when focusing on interests than it would be where the focus is only on irreconcilable positions. For every interest there may be several possible solutions (options) which could satisfy it.

Case illustration: Edna and Barry courhood dispute between Edna, a long-standing wealthy resident of Possums Peak, and her new next-door neighbour Barry concerning trees which are over-hanging and growing through the fence between the neighbouring properties. Edna wants the trees removed and Barry wants to retain them, and each opposes the other’s positional requests.

Table 4.3: Positions and interests for Edna and Barry Edna Barry Positions Remove the trees Retain the trees Improve the appearance (and value) of property. Allow more natural sunlight to permeate the foliage. Prevent the trees from Interests damaging the fence. Stop the leaves from clogging up the drainage system. Keeping on good terms with the ‘upper end’ home-owners in the neighbourhood.

Retain natural habitat for nesting birds and insects. Provide privacy from voyeuristic neighbours. Avoid having to replace the fence. Find the time and resources to carry out work on the garden. Maintaining a good relationship with greenie wife, Hazel.

[page 82] 4.14 As can be seen from this hypothetical situation, there is more

negotiability in relation to the various interests than there is in relation to the single positional factor of removing or retaining the trees. Thus Edna’s interests in making her garden appear more attractive and acquiring more natural sunlight can conceivably be met without the trees being removed. Within the two lists there are interests which are highly subjective (improved appearance of property) and generalised (good terms with ‘upper end’ home-owners), and therefore more open to creative settlement options than the objective and concrete positional claims of ‘cut down the trees’ and ‘don’t cut down the trees’. 4.15 Some further refinements can be provided in relation to the term interests as follows: Objective and subjective interests: A subjective interest is something a party desires; for example a workers’ compensation plaintiff wants to buy a car and go on an extended holiday and therefore claims a quick lump-sum payment (position). Here the subjective interest is in the nature of a ‘desire’ or a ‘wish’. However, their objective interest might be for rehabilitation, retraining and other educational arrangements for future security which would be better secured by instalment payments, subsidies and the like. Here the interest is in the nature of an objective ‘need’. Instrumental and ultimate interests: An instrumental interest is one which is required in order to achieve other interests. An ultimate interest is one which is needed in itself and not as a means of obtaining another interest. Money is usually an instrumental interest, that is a means of obtaining security, another car, a sense of vindication and the like. An ultimate interest is usually very subjective, such as vindication, maintaining dignity and upholding a principle. 4.16 Maslow (1987: 35) suggested that people’s motivations will depend on whether their basic needs are being satisfied. He classified these needs in a triangular form (see Figure 4.2), with five basic levels: 1. Physiological needs — the most fundamental needs at the base of the ‘triangle’, including food and shelter.

2. Safety needs — including security, stability, freedom from fear and need for order. 3. Love and belonging needs — the need for a place in a group and the affection of a partner, children and friends. This level in particular may be a motivating factor in mediations as disputing parties have often experienced the loss of some kind of relationship with the other party. 4. Esteem needs — this level can be divided into two layers: first, self-respect and the need for confidence, achievement, independence and freedom; second, respect or esteem from others, that is reputation or prestige. 5. Need for self-actualisation — it is at this level, the apex of the ‘triangle’, that individual differences are greatest, as people try to be true to their own nature and aim for self-fulfilment. [page 83] Figure 4.2: Maslow’s hierarchy of needs

This rudimentary, though profound, insight into mediating parties’ possible motivations is part of the context of which mediators need to take account when defining and diagnosing a dispute.

Diagnosing the Dispute 4.17 The NMAS Practice Standards identify ‘dispute diagnosis’ as a

required mediator skill: s 7(3)(b)(i). It is imperative for mediators, on a continuing basis, to analyse and diagnose conflict situations in order to develop a theory on which they can base interventions. Any diagnosis is always tentative. As referred to in Chapter 1 (see 1.19), conflict is not a static phenomenon and it can escalate and de-escalate over time, necessitating a continual diagnostic assessment by mediators. Diagnosis can be done intuitively or it can be done in a structured manner. As there is more to dealing with conflict than only gut-feeling, the structured approach is recommended here. It is more appropriate for new mediators to learn through this rather than through the intestinal method. Structured diagnosis involves asking the following questions.

Who are the parties to the mediation? 4.18 Mediators need to ensure that all relevant parties are playing an appropriate role in mediation. In some cases it is self-evident who they are and what their roles should be, for example the person asking for something and the person being asked to provide it. In others the situation is more complex and requires some investigation, analysis and consultation with the parties directly involved to ascertain what other categories of parties should [page 84] be included. Thus in a mediation over a disputed development application there might be a first category of parties — the developer, the objectors and the local authority — and also a second category, comprising residents, ratepayers, environmental groups and business associations. There may be differences between parties to a legal dispute, on one hand, and appropriate parties for the mediation, on the other. For example a doctor might not technically be party to a medical negligence dispute between patient and medical insurer, but his or her

presence at mediation might be an important ingredient for its success. Likewise a person directly involved in the legal dispute might not be the appropriate person to attend mediation. For example a middle manager in a business dispute relating to a supply contract might have too many self-interests to be a useful participant in the mediation, which could be attended by a senior manager instead. 4.19 A related question is who, apart from the parties to a dispute, should attend mediation as advisers, observers, support persons or in some other capacities. These decisions need to be made on a caseby-case basis and in consultation with all parties. Factors to consider include: How conducive the presence of others will be to moving the process forward and achieving the parties’ goals in mediation. Power and safety issues as between the parties. The NMAS Practice Standards s 4(2) states that: If at any time abuse is present, or implied or threatened, the mediator shall take appropriate measures to ensure the safety of participants. Options include … (d) enabling a friend, representative, advocate, or legal representative to attend the mediation sessions.

How non-party attendees will participate in the mediation, for example will they be able to attend both joint and private sessions of their party; will they be able to speak at the mediation or contribute in another way? If one party retains support people, will the other party want to do the same, or not? How will this affect the power balance between the parties? In terms of logistics how many people will comfortably fit into the mediation space? Is there a need to reconsider the mediation setting? In terms of people management, how will the mediation process design need to be adapted to suit other attendees’ presence? Where parties bring to mediation solicitors, barristers, financial or other advisers, experts, support persons (mentors, colleagues, friends) and observers, numbers can quickly escalate. A dispute between two partners of a medical practice may result in 30 people

in the room and require process design to manage them. On process design see 4.35–4.49 below. Where legal counsel has given an opinion it may be preferable for them to be present, particularly if the opinion has created a firm expectation in the mind of the relevant client, for example on quantum of damages in a [page 85] personal injury claim; if the barrister is not present to ‘condone’ a reduction in the figure anchored in their mind it may not be possible to settle the matter. In other circumstances involving, for example, sophisticated parties and repeat players it may be suitable for the lawyers not to physically attend mediation but to be available for consultation with their client by phone or email. Here the rationale is that well-prepared and articulate parties are usually best-placed to focus on their priorities and negotiate acceptable outcomes. In Chapter 2 (see 2.26), reference was made to the need to identify representatives and spokespersons in ‘team negotiations’ and for the mediator to deal with the question of authority within teams from an early stage. Further attention is given to the problem of ‘ratifiers’ and other external parties later: see 5.82 and 10.29.

Why are the parties in conflict? 4.20 The NMAS Practice Standards s 7(3)(a)(i) identify knowledge of the nature of conflict as an aspect of mediator competency. Such knowledge is essential for diagnosis and mediators need to develop a theory as to what has caused the parties’ conflict. To this end, Table 4.4 identifies seven potential causes of conflict. 4.21 In reality most conflicts have more than one cause. Nevertheless mediators need to develop a hypothesis on the probable causes of conflict because the mediation interventions and strategies will differ for each cause. Thus in the case of ‘data’ disputes parties need to

consider ways of obtaining comprehensive and accurate data or of obtaining a single expert interpretation of the data; in ‘relationship’ disputes parties may require extensive interpersonal communication to air feelings and explore new arrangements for the relationship; in ‘value’ disputes parties might have to consider ways in which they can ‘live and let live’ on their value differences or discuss procedures for having an authority adjudicate on them. All these options can be canvassed in the course of a mediation. Table 4.4: Causes of conflict Conflict Cause of conflict category Parties have different goals and cannot achieve Goals/objectives them without assistance from each other. Figures, data or documents are incorrect, Information/data incomplete, lost or differently interpreted.

Illustration The marketing department requires more products for new customers, while production wants fewer lines to ensure reliable quality. Valuers have different methods for valuing the goodwill in a business and produce widely different valuations.

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Communication

Written, verbal or vocal communications are unclear, incomplete, misunderstood, misfiled or

Departmental managers are accustomed to informal communications among themselves, while new departmental head demands formal meetings and written

ignored. Competition over limited amounts of money, goods, Resources services, time or other matters of substantive value. Unequal access to authority, information, resources, Structural professional advice, time and other sources of power. Patterns of negative behaviour, untreated Relationship emotions, the grieving process, stereotypes or relational problems. Competing ideologies, world views, religious and cultural Values/principles values, basic assumptions about life and the universe.

communications.

There is a fixed amount of matrimonial property and the more one party receives the more the other will forgo. The big corporation has enormous financial resources and access to advisers, networks and power; the pensioner in a rental property has limited means of this nature.

Two business partners no longer speak and only email each other since an emotional altercation and their behaviour is affecting the efficacy of the business.

Employer and employee differ over whether touching on the shoulder constitutes collegial affection or unlawful harassment.

Why have past attempts at settlement failed?

4.22 Regardless of the originating causes of dispute, knowledge about subsequent patterns of interaction or inaction between parties assists in the development of a mediation hypothesis. As there was no resolution of the parties’ differences in the past, present attempts at resolution should be informed by the reasons for past failures. This may reinforce the diagnosis on causes of the dispute referred to above, and elucidate some factors which caused the dispute to escalate: see 1.19. Reasons for failure to settle in the past could include: [page 87] Lack of communication: misunderstanding and confused messages between the parties. Rule differences: where the parties alone or with expert advice interpret rules, standards, policies or other relevant norms differently. Unhelpful involvement of outsiders: where neighbours, in-laws, bosses, lawyers and others provide ‘assistance’ which escalates the conflict and obstructs constructive problem-solving. Restrictions on resources: lack of knowledge, expert opinions, professional advice and the like have made it difficult to come to an informed agreed settlement. Lack of opportunity: there has been no structured opportunity for all relevant parties with all relevant information to get together to resolve the matter. By diagnosing both the causes of conflict and the reasons why past attempts at settlement have failed, a mediator can design appropriate interventions for achieving settlement. In Table 4.5 we suggest different interventions for various causes of conflict. Table 4.5: Possible Conflict interventions Cause of

conflict

Possible interventions

Reframe and change definition of problem from goals to interests. Identify and prioritise interests. Goals/objectives Develop a range of options. Search for independent criteria. Develop trade-offs to satisfy interests. Design processes for collating information. Information/data Develop criteria for assessing information. Request third party to give opinion on data.

Communication

Channel communication through mediator. Clarify perceptions. Coach on communication strategies.

Resources

Test the assumption that the pool of resources is fixed. Identify and prioritise interests. Try to add value to the pool of resources (‘increase the pie’). Disaggregate and prioritise resources to increase potential trade-offs. Search for independent criteria to anchor a settlement. Reality test walk-away alternatives. Develop trade-offs to satisfy priorities.

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Structural

Let go of the assumption that structures cannot be changed. Find ways to deal with structural issues, eg change time constraints, allow for supporters or constituents to attend, provide access to legal advice, modify external pressures. Ensure fairness of process.

Relationship

Allow for expression of emotion. Clarify perceptions about motives, attitudes and behaviours. Focus on relational issues. Encourage recognition and acknowledgment between parties. Coach on behaviour modification.

Reframe and change definition of problem from values to interests, concerns and needs. Prioritise interests. Agree to disagree in relation to values. Values/principles Search for common interests, concerns and needs. Develop trade-offs to satisfy interests, concerns and needs.

Useful mediator questions to ask parties prior to mediation meeting 4.23 In order to assist them diagnose a dispute, mediators might ask parties one or more of the following questions: 1. ‘What is the conflict really about from your perspective?’(Here the

2. 3. 4. 5. 6. 7. 8.

causes of conflict referred to above are important.) ‘What’s at stake for you here? For the other party?’ ‘What has been done so far to address the issues between you?’ ‘What has prevented you from settling the dispute in the past? What impact has this had on you?’ ‘What do you see as the main obstacle to resolving the dispute now?’ ‘What are your concerns about negotiating with the other party? What do you think the other party’s concerns are?’ ‘What do you expect from mediation? What do you think the other party expects?’ ‘What problems are likely to arise in the mediation negotiations? Where have problems or differences arisen in the past?’ [page 89]

9. ‘What do you think is needed at mediation to bring you and the other party to a satisfactory settlement of the dispute?’ 10. ‘How have other people settled disputes similar to this?’ 11. ‘How would things be for you if you did settle in the mediation? What would it be/look/feel like?’ 12. ‘What would the consequences be of not settling the dispute in mediation? What risks do you face with non-settlement? What do you think the consequences would be for the other party?’ Here are some additional questions that mediators may ask parties’ legal advisers (see Wade (2006a: 11)): 1. ‘Why should the mediation process be any more successful than lawyer-to-lawyer or party-to-party negotiations?’ 2. ‘What would you do to improve the negotiation dynamics between these disputants?’ 3. ‘What extra information do you require before a joint mediation session occurs?’ 4. ‘If you were the lawyer for the other side, what extra facts would you require before a joint mediation session occurs?’

5. ‘What precise offers have been made by each party and on what dates?’ 6. ‘Who needs to be present at any joint mediation meetings? Who should not be present?’ 7. ‘What documents need to be prepared/submitted/read and by whom? By what deadlines?’ 8. ‘What authority to settle does each party have? Do you think either party will need to consult someone else before signing a settlement?’ 9. ‘On a scale of 1 (not enthusiastic) to 10 (very enthusiastic) indicate levels of enthusiasm for the mediation process by you, your client, the other disputant and other professional advisers involved.’ 10. ‘What are your client’s walk-away alternatives, namely BATNA, WATNA, PATNA and RATNA?’ (An explanation of these acronyms is provided below.) 11. ‘Have you provided to your client in less than one page of writing: A range of possible outcomes in court from the worst to the best (worst first)? A range of possible professional out-of-pocket costs if the dispute goes to court, from worst to best? A range of best to worst outcomes in relation to delay, publicity, lost opportunity costs, strained business relationships and so on if the matter goes to court?’ 12. ‘What other things do you think I (the mediator) should know?’ [page 90] These questions aim to elicit and highlight the different perspectives of each party and their lawyers and to identify common ground that may exist. They also assist lawyers in thinking about how to prepare their clients for mediation. In addition the questions encourage parties to think constructively and realistically about how to sort out their differences in a mutually acceptable way. Finally, the responses to these questions may give the mediator useful information in preparing for mediation.

What are parties’ current interests, needs and concerns? 4.24 As indicated at 4.11, parties before mediation might have concealed their real needs, concerns and interests. This occurs for two main reasons. The first is because the disclosure of interests can make that party vulnerable, in negotiating terms, to the other side and therefore they need to bluff and postulate. The second is that parties in conflict have difficulty in understanding and articulating their real needs and it is quicker and easier to be positional. In either event they become locked into positional claims and demands and during the mediation process they may conceal their needs from the other party, their professional advisers and even themselves. The undisclosed interests can include not only substantive matters, as referred to above, but emotional and procedural needs as well. As part of the procedural fairness requirements, the NMAS Practice Standards s 9(2) provides that mediators: … will provide each participant with an opportunity to speak and to be heard in the mediation, and to articulate his or her own needs, interests and concerns.

Mediators can attempt to elicit parties’ needs, concerns and interests through the following interventions before and during mediation: by reassuring them on confidentiality; by asking open and clarifying questions about facts, feelings and interests: see 6.47; by engaging in active listening: see 6.35–6.36; through the device of reframing: see 6.39–6.45; through the use of separate meetings: see 5.64–5.74; by probing for hidden agendas: see 6.47; and by encouraging parties to talk about what is important to them and how they feel. However, it is naive to expect that even skilled mediator

interventions will elicit from the parties all their interests. In reality there will only be a tentative understanding of the parties’ interests in the early stages of conflict diagnosis. [page 91]

What are parties’ alternatives to a mediated settlement? 4.25 All participants in mediation have options away from the negotiating table, such as going to court, appealing to higher authority (the company board, the cabinet) or engaging in hostilities (lockouts, strikes). These walk-away alternatives are relevant in assisting parties assess whether they would be better off not accepting a particular offer of settlement in mediation and pursuing their cause elsewhere. This notion has been immortalised by Fisher and Ury (2007) through the acronym BATNA (best alternative to a negotiated agreement). Parties should also give consideration to the notion of a worst alternative to a negotiated agreement (WATNA), the realistic alternative to a negotiated agreement (RATNA) and the preferred alternative to a negotiated agreement (PATNA). Of course when talking to parties, it is preferable to avoid a deluge of acronyms and to focus instead on the various walk-away alternatives available, identifying the best one, the most realistic one, and so on. As indicated previously, where advisers are present mediators may wish to ask them about their clients’ various alternatives to settlement: see 4.23. Mediators, mindful of their acronyms, routinely ask parties from the earliest stages of mediation to consider these factors as a way of focusing their minds on the value of a mediated settlement, relative to what might happen away from the mediation room. If their BATNA, PATNA or RATNA is worse than that which is on offer in the mediation, it would be wise to accept the offer; if their WATNA is better than that which is on offer in the mediation, it would be wise to

reject the offer.

What are possible solutions? 4.26 While there is an infinite number of potential outcomes to mediation, unlike litigation, these can be categorised into the following groups: Compensation/restitution, that is the making good of past damage, injury or loss through the provision of money, goods, services, repairs, replacements or other forms of reparation. Plans of action for the future, for example arrangements for joint parenting of children, improving the quality and nature of communication, new conditions of employment in a particular enterprise or a joint business venture, and systems for dealing with future disputes. Dealing with emotional/relational issues, for example through acknowledgment of others’ feelings, apologies and forgiveness, changing behaviour and other aspects of reconciliation. Some mediators from their earliest involvement develop hypotheses about possible mediation outcomes. How they make use of an outcome hypothesis is considered later in this book: see generally Chapter 7. [page 92]

Mapping the conflict 4.27 Sometimes it is useful to draw the above factors together in a consolidated mind-map, chart or grid which provides an overview of the conflict for the benefit of the mediator and the parties. Figure 4.3 provides an example of a conflict mapping grid. Consider the following scenario: There has been a long-running dispute between the Board of Directors of the No 1 Ladies Golf Club

and the General Manager regarding increasing the number of memberships, relaxing the formal dress code and allowing gentlemen to enter the 19th Hole Bar. The members have become involved in the dispute through their club captains and the residents of the Estate have also taken an interest through the Estate Residents Committee. Figure 4.3: Conflict mapping grid

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[page 94] For the more spatially oriented a conflict ‘mind-map’ may be a more intuitive and informative approach: see Figure 4.4. Mind-maps are used to visualise, structure and classify ideas. By presenting ideas in a radial, graphical, non-linear manner, mind-maps encourage a brainstorming approach to problem-solving. The human brain is said to respond more quickly to the spatial connections represented in a

visually networked map format than to a linear representation of the same material. Plotting a conflict in mind-map format allows for the absorption of multiple levels of information simultaneously in terms of relationships of power, common and disparate interests, and the value of the offer on the table in relation to goals and alternatives. Figure 4.4: Conflict mind-mapping

4.28 The conflict-mapping concept can be used in different ways in mediation. The map can be used exclusively by the mediator to provide a sense of structure within which he or she makes judgments over strategies and interventions. Where resources allow, it can be suggested to the parties that they engage in conflict mapping as part of their negotiation preparation. Where trust has developed there can even be some sharing of [page 95] map information between the parties. And it can be used with constituents, ratifiers and other parties not at the mediation table to explain the realities in as objective and economical a way as possible.

Defining Problems Appropriately: Identifying

Issues or Questions 4.29 The procedural steps of mediation (see Chapter 5) are designed to define disputes comprehensively before moving to their resolution. In describing the mediation process, the NMAS Practice Standards s 2(4)(a) states that: The mediation process may assist the participants to define and clarify the issues under consideration.

As pointed out in this chapter, parties in conflict often present their problems in simplistic and positional terms which obscure their real needs, interests and desires. By redefining the problem in all its complexity, mediation allows parties to deal with their needs, interests and desires, to have more issues over which to negotiate, and to exploit all potential value at the negotiating table. A problem welldefined, say mediators, is a problem half-resolved. 4.30 Mediators need to assume a significant leadership role in the defining stage of mediation as it is a sophisticated art. It is not something which would come naturally to the passenger on a ‘no frills’ flight. It is also counter-intuitive in that people in conflict are inclined to define the problem from a one-sided perspective, in a way which implies that the other party is at fault and must rectify the problem. This creates a naturally defensive reaction from the other person, who develops his or her own one-sided definition. Mediators must attempt to move beyond one-sided definitions and obtain parties’ acceptance of a mutual and generalised definition which puts the onus for resolving the problem on both parties. To revert to the dispute between the Board of Directors of the No 1 Ladies Golf Club and the General Manager, referred to above, the following different definitions of the problem by the two main parties and mediator might be encountered: Board of Directors’ definition of the problem:The General Manager is not faithfully applying the traditions and rules that have been established at the Club for generations. She refuses to

communicate adequately with the Board and has little respect or consideration for the Board. (Implication: a new General Manager must be appointed.) General Manager’s definition of the problem: The Board is not listening to Club members whose views it must consider when making policy decisions. In addition it continually interferes in matters of management and administration of the Club. (Implication: the Board must let the [page 96] General Manager carry out her management duties in accordance with members’ wishes.)

Mediator’s definition of the problem: What is an appropriate division of functions and responsibilities between the Board of Directors and the General Manager and how should future communication and collaboration take place between them? (Implication: they both have to contribute to and cooperate on the issues.) Note how the last definition implies no blame, provides a single common definition, is future-oriented, and presents the problem as an open-ended question which can be used to invite possible answers from the parties. By contrast, the other definitions each have a onedimensional approach to the problem which implies that the other side must fix it.

Mediator’s initiatives in defining the problem 4.31 As has been pointed out, parties will make positional claims in mediation and impute blame to everyone other than themselves. An important mediator function is to direct the parties’ perceptions away from positional claims towards underlying interests, and to get parties to accept a definition of the problem which reflects these interests: see 5.39–5.51. To achieve this, mediators must attempt to:

Restate or reframe positional claims to capture underlying interests and clarify and make explicit parties’ needs, for example a claim for the family car may be motivated by a more general need for adequate transportation: on reframing, see 6.39–6.45. Change from one-sided views of the dispute towards views which reflect both sides of the problem. If two parents each claim exclusive residence of the children, the mediator might suggest that they see the problem as one of reconciling each parent’s need for appropriate involvement in the children’s lives and having a good relationship with them. Move from a specific definition of a problem to one which is more generalised and tentative. Thus a claim for 60 per cent of the partnership profits might be depicted by the mediator as a need for an equitable division of profits which takes into account a reassessment of the value of the contributions of each partner and other identified factors. By ignoring the specific figure, the mediator opens up the negotiating process to more options. Include both sides’ interests in the definition of the problem. For example in a dispute about whether or not to allow logging of forest areas adjacent to a rural town, a mediator might suggest a consideration of solutions which ensure the economic survival and growth of the town and maintain its popular ‘green’ image and the health and lifestyle interests of its residents. Use neutral and non-laden language. Thus a claim that ‘the fascist managers must give us a raise or there will be rivers of blood on the [page 97] factory floor’ could be redefined as ‘So you want management to pay you an appropriate wage for the kind of work you do?’

By casting positions and interests in open-ended problem-solving questions, for example, ‘How can the loan be repaid in a way which satisfies both parties?’, or ‘How can you each be assured as to the reliability of future performance?’

By ‘de-legalising’ the problem. Lawyers might define a problem as one of liability and quantum, whereas a mediator should attempt to define it in non-legal terms. Thus in a standard workers’ compensation case the mediator might redefine liability and quantum as ‘How can we deal with different versions of the accident?’, ‘How have the various parties been affected by the accident?’ and ‘What actions are required to make good any losses suffered?’ By ‘de-monetising’ the problem. In litigation, interests and issues are usually incorporated into a monetary claim, whereas in mediation it might be better not to define the dispute in monetary terms to encourage the emergence of non-monetary factors. Thus an employee’s claim for damages for wrongful dismissal might be redefined as ‘What actions could the company director undertake in order to address the employee’s concerns?’ The mediator skill most pertinent to the above interventions is that of reframing, which is addressed specifically in 6.39–6.45.

Different levels of defining 4.32 Mediators have some discretion in relation to the level at which a dispute is defined, and the discretion will be exercised in the light of the mediator’s hypothesis, the circumstances of the parties, and the mediator’s background and training. To revert, this time, to the dispute between the Director of Funky Fashions and former employee Claire, referred to above (see 4.3), there are four potential levels at which it could be defined (though they are not entirely mutually exclusive): 1. The legal level: has there been a breach of the employment contract between Funky Fashions and Claire? 2. The commercial level: what is an appropriate business arrangement for taking account of past conduct and future business possibilities? 3. The relational level: how can the mistrust between the two parties that has arisen out of the Director’s sense of betrayal and the employee’s lack of acknowledgment be addressed?

4. The symbolic level: how can a shift in the deadlock be represented in a symbolic way so that neither loses face? 4.33 As indicated previously, mediators normally avoid legalistic definitions because they do not promote negotiated decision-making, although they might be appropriate in some circumstances. Which of the other approaches, [page 98] or combination of approaches, will be taken depends on the needs and wishes of the parties, the circumstances of the dispute and the skills of the mediator.

Further illustration of positions, interests and issues 4.34 Table 4.6 further illustrates how the terms positions, interests and issues are used in this book.

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Designing an Appropriate Form of Mediation 4.35 Because of the number of variables in mediation’s structure and procedures there should be a design effort by the mediator both beforehand and during its course. Mediators may design the process without the parties’ consent, or even awareness. Alternatively, mediators may recommend it to the parties or they may consult them openly and seek their input as to how the mediation is designed. The NMAS Practice Standards s 3(2) requires that parties have an opportunity to have input into the process. It states: Prior to the mediation taking place, the mediator will ensure that the participants have been provided with an explanation of the process and have had an opportunity to reach agreement about the way in which the process is to be conducted. [Emphasis added.]

Mediators should consider the following principles of dispute resolution design when customising and designing an appropriate forum for mediation (adapted from LeBaron in Alexander (2010: 168– 78)). These principles pull together many of the diagnosis and design themes identified earlier in this chapter and expand upon some of the foundational points relating to pre-mediation introduced in Chapter 2.

Understand the environment and the culture

4.36 Is the environment in which the mediation process is intended to operate open to, and supportive of, a collaborative approach to dispute [page 100] resolution? If so, what kind of structural and relational features (for example presence of constituents, support people, interpreters or advisers, or separate rooms for parties) will foster safety and comfort for participants? What kind of approach would fit with the culture of those who will use the system? On culture see 6.3–6.7. Know the ways in which disputes are informally handled and the rituals for conflict prevention that are already operating. What are potential mediation parties currently doing that works well? What informal mechanisms are in place in the relevant communities or organisations to handle disputes? Which elements of those processes might be important in mediation processes? For example in an organisational or workplace context consider the extent to which it might be helpful to use practice group meetings to communicate progress or outcomes from mediation.

Collaborate in the design 4.37 Think about who will use the mediation process and, if appropriate, gather their input into how it should operate. This helps to build awareness, trust in and ownership of mediation, and makes it more likely to be used with confidence and procedural satisfaction. Invite party and adviser input into timing, setting, approaches to communication and other process features. This can be done during preliminary meetings with mediation participants. Sometimes mediators will customise the process for a series or class of disputes such as the more than 200 mediations that occurred in Queensland between 2002 and 2008 as a result of medical negligence claims against the State emanating from one doctor’s actions: see ‘Commission moves towards settling Patel compo cases’

(29 May 2006) at . In these circumstances inviting a range of people to participate in the design increases the likelihood that the process will reflect different values and a spectrum of communication styles likely to be encountered over the multiple mediations to be conducted. Here mediation design focus groups can be useful as part of the design process.

Use principles of creativity including visual elements 4.38 Incorporate principles of creativity in mediation design and implementation. You can include elements that appeal to people with a range of communication and cultural preferences, being careful not to be too prescriptive. For example some mediators ask parties to draw the development of the conflict as they see it on flip-chart paper and then talk about it. This approach helps parties to tap other intelligences and communicate relational and symbolic aspects of a dispute that they may not even be aware of, or may not feel comfortable expressing in a traditional verbal opening statement. The ‘expressive arts’ technique appears to confirm the wisdom that a picture paints a thousand words. Drawing before speaking also has [page 101] the advantage that parties frame their opening stories simultaneously and are therefore not influenced by what others have said, although they will explain their drawings sequentially. Finally, where parties have different levels of articulacy, the use of other methods of expression can help level the playing field. 4.39 There is a saying in mediation that ‘the visual is vital’ and mediators write up important things, with varying degrees of technological sophistication. Many clients benefit from seeing agendas, mathematical calculations, mud maps, points of agreement,

and so on, in written or drawn form. For this purpose, mediators need to organise one or more of the following visual aids: Flip-chart paper — so that everything written up can be retained. Whiteboard — enables writing to be erased and changes to be made. Electronic whiteboard — allows for copies to be made and kept. DVD player and monitor — to deal with ‘evidence’. PCs and computer projection — for educating and informing parties, for presenting visuals.

Provide choice as to time and timing 4.40 There are different views on the timing of and the time for mediation. As regards timing, there has to be enough time to procure relevant information, but as mediation is not fact-obsessed there does not have to be an exhaustive pursuit of information. In terms of the duration of a mediation, this is difficult to predict. Some mediations can be completed in hours, others are adjourned on several occasions and take place in multiple sessions extending over a period of months. These process variations are discussed in 9.2–9.6. Time variations relate not only to duration, but also to the way breaks are handled, and to how those involved think about time. Cultural and personal differences influence relationships to time. These preferences and expectations can be canvassed with parties in advance using these key questions: How important is punctuality? What is an acceptable time to be late or delayed? If someone is involved in another activity during a mediation session (such as texting or reading email), is it rude, inattentive or perfectly acceptable? Some people may find such multi-tasking acceptable, others as highly offensive. Is it important to separate task-oriented time from social/relational time? Mediation — at least in western commercial contexts — tends to separate the two, focusing sequentially on relationshipbuilding and substantive issues and keeping break and meal times

generally free from problem-solving. Challenges may arise when different expectations exist. [page 102] Where does it make sense to start in terms of time frame? The present or the future? Or the past? If the latter, how far back does it make sense to begin? In the dominant Australian culture there is a preference among many groups for a present and future focus. This cultural preference — known as a monochronic approach to time — aligns with the principles underpinning contemporary mediation processes. In other parts of the world where there is a stronger awareness of time stretching — referred to as polychronic — preferred time horizons may stretch several generations or centuries forwards and backwards. The following example is illustrative of this difference. In a native title dispute in Australia, a mediator asked the parties when the dispute began. Without missing a beat, the indigenous party replied, ‘It began in 1788.’ From the indigenous party’s perspective his land had been invaded and taken away when the English arrived and colonised what is now known as Australia. For the other parties — government representatives, farmers and resource companies — the dispute’s history went back only a few years. So where does the mediator start? While there is no clear answer to the question these issues can be addressed in the design phase of a mediation. Finally, timing relates to ‘ripeness of the dispute for mediation’. Here the emotional state of parties is relevant. Where a party is in shock, denial, severe depression or uncontrollable anger it is not advisable to proceed with mediation: see further 3.5–3.7.

Offer choice in relation to venue and setting 4.41 Try to provide choices so that the mediation forum reflects parties’ sensibilities, comfort and needs. Ideally mediation venues should be accessible to clients using private or public transport, have

parking facilities and be walking distance from food outlets. Amenities such as kitchenettes, restrooms and good lighting (if mediations may go into the evening) are important. If possible mediation venues should be perceived as neutral by all parties. This can prevent the ‘own ground’ syndrome which can provide tactical advantages for the ‘home team’. Alternatively, there may be circumstances where mediation takes place ‘on site’, for example the place of employment in a workplace dispute or the site of the land in a native title dispute. Yet another possibility is to rotate the venue if multiple meetings are to be held, in order to achieve balance and convenience for the parties. Ultimately the choice of venue will reflect consideration of a host of process design factors. The venue should have at least two meeting rooms for joint and separate sessions, although three meeting rooms are ideal with a separate private room for each party. In addition it is important to have soundproof rooms or meeting places where outsiders cannot hear what is taking place inside. [page 103] Pay particular attention to those who are not repeat mediation players. Are they likely to feel estranged in a formal, professional setting? For example where the repeat player offers the use of its corporate offices free of charge for mediation, consider the impact of the venue on less experienced mediation participants. Do what is possible to adapt the setting to the comfort of participants. 4.42 It is also important to accommodate the dynamics between parties when arranging the venue and facilities. By way of example, where mediators know that two participants have a history of escalation when left alone together, they will need to consider arrangements carefully so that the parties are not left alone during breaks. Mediators must plan and supervise the arrivals, waiting and departure of parties. In some cases it may be appropriate that parties arrive at the venue at separate times, are received by the mediator or

a receptionist, and are allocated to individual waiting-rooms. However, these arrangements are not always possible or can break down. Where one party arrives before the other, it is not good form for the mediator to be seen in conversation with this party when the other arrives. Where circumstances require it, the weaker or more vulnerable party should be allowed to leave first, so that the dominant party cannot lay in wait for him or her. Where issues relating to power imbalance, control and intimidation arise, mediators should design appropriate measures to ensure participants’ safety. The NMAS Practice Standards s 4(2) suggests some options in this regard, such as using video-conferencing so that parties do not need to be in the same room and activating security protocols. In some service-provider agencies there is a panic button in the mediation room to alert outsiders if there is violence or a threat of violence. In terms of communication facilities, consider the parties’ requirements such as telephones or mobile reception, video or internet conferencing facilities, copier, scanner and email access. Be aware that in some meeting rooms mobile phone reception is blocked. This may be a welcome factor for some mediations, where telephonic interruptions may impede progress. However, it may still be important for parties to be able to use mobile phones in a private area outside the mediation room. Refreshments, tissues and other creature comforts are other factors to consider. While the refreshment issue may seem trite, it is not just about physical comfort for participants. Having a jug of water and empty glasses on the table provides opportunity for some ritual serving between the parties. Where the mediator does the pouring, it symbolises the equality of the participants and initiates a common activity for all. Where tea and coffee are available away from the mediation room there is a common activity of moving towards it, the movement providing opportunity for informal discussion away from the table. In these ways refreshments can bring symbolic ritual to the situation, an experience [page 104]

in common which creates a bond carried over into the negotiations. On ritual see 3.18. 4.43 Where a mediation is likely to take a day or more and resources are available to you, consider using a space with a variety of adjoining settings such as a: formal setting with round table, whiteboard and other requirements; comfortable easy chairs, with a coffee table or no table; break-out room(s) for separate sessions; kitchen, corridor, balcony area for informal gathering during breaks and for smokers; place to walk nearby such as a park (also good for smokers); place to eat nearby such as a restaurant, eatery or coffee shop. The ability to move participants and different constellations of participants to different settings, in accordance with the stage of mediation and the prevailing dynamics, can be a powerful tool. It can alter channels of communication and move participants to a new topic or a fresh phase of the mediation.

Consider how seating arrangements can support process 4.44 Find ways to arrange furniture that facilitate comfort among mediation participants. Generally mediators sit equidistant from the parties, who should have their own physical space, separate and equal. Mediators should try to ensure that the elements of the physical setting reflect impartiality without being bland and impersonal. Some mediators try to avoid parties facing one another across a table in a ‘confrontational’ mode, preferring round or oval table settings or seating at the corners of tables in a less adversarial mode. Other mediators prefer to work with large comfortable chairs and small coffee tables. However, often the facts of life provide little choice and mediators have to make do with whatever seating is available. Figure 4.5 shows some seating possibilities. Seating can change during mediation. Initially, parties’ chairs may

be facing the mediator, to whom they should speak in the beginning. During adjournments, the mediator might adjust the chairs so that the parties face each other as a basis for communicating directly across the table in later stages of the mediation. During separate meetings (see 5.64–5.74), the mediator might move to a different chair and ask the relevant party to move as well, so that they are not physically associated with the stress and positional demands which occurred in joint meeting. In all situations mediators make practical design choices based on their informed judgment. [page 105] Figure 4.5: Possibilities for Mediation Seating

Build capacity through providing information, coaching and training 4.45 Help participants develop the capacities needed to participate in mediation meaningfully. What information would be helpful for participants to receive and how? Are there relevant information sheets, brochures, websites, DVDs or information sessions that participants can access? Is it appropriate to hold initial separate meetings with one or more parties to coach them in mediation principles and preparation? When conflicts are complex and protracted, it is useful if all involved

share some common language and capacities for collaboration. To this end [page 106] conducting a pre-mediation workshop can be useful to get all parties in the same room talking together in the safety of a training environment. Training can foster psychological comfort among parties and lawyers and can allow parties to build awareness of common ground on low-stake issues such as timing and resources. As training participants start to use mediation jargon and practise core mediation skills such as active listening, they are building their own capacity to be better conflict resolvers in the current circumstances and for the future.

Choice of mediation model, process rules and roles 4.46 Having addressed the previous principles, consider the appropriate mediation model: see 1.29. What level of mediator intervention is appropriate? To what extent will the mediator facilitate dialogue and communications and to what extent will he or she offer guidance in relation to the merits of the conflict and possible outcomes? Once an approach to mediation has been identified, the issue of appropriate process rules may arise. Select rules that are consistent with the applicable mediation model and incorporate these into the Agreement to Mediate (on which see 2.24). Note that the NMAS Practice Standards s 3(6) requires mediators to provide participants with a copy of the same Standards or to advise where and how they can be accessed. It is important to discuss with parties the desired legal status of mediated outcomes. For example in a workplace dispute they may not wish outcomes to take the form of a legally binding contract, preferring

a signed memorandum of understanding to reflect agreements reached. Where parties require a legally binding outcome, it is important to consider and discuss the role of legal advisers, tax accountants and others in relation to shaping the final outcome.

Use cost sequencing with looping and review mechanisms 4.47 Begin with low cost dispute prevention and handling mechanisms that fit with those, if any, informally operating in the environment. Such mechanisms are usually informal and facilitative in nature. Advisory and determinative processes tend to involve higher costs as they usually entail increased formality in terms of rules and evidence. Consider how blended processes such as med-arb (referred to in Chapter 1) might be useful if parties cannot come to a negotiated outcome. Where mediation is one of several different process tiers, consider building in mechanisms which allow parties to move both forward and backwards among the multiple tiers which may include transformative, facilitative, advisory and determinative approaches. These are called loop-back and loop-forward mechanisms. [page 107] In the design, give parties an opportunity to loop back to more collaborative and facilitative processes along the way. For example mediation may be paused to allow time for unassisted negotiation between the parties. Consider ways in which all or part of a dispute can loop forward to another process — for example independent expert appraisal, neutral evaluation or arbitration — in appropriate circumstances. Looping forward is especially useful in the case of an impasse. For example if mediation breaks down because parties cannot agree on valuations, a decision by an independent expert valuer may provide the parties with

the information they need to continue mediating. You may wish to consider building in an adjudication or arbitration safety-net, such as in med-arb processes. In incorporating loops forward or backward in conflict resolution processes, it is important to consider details such as: Who can be appointed to conduct a looped-in process such as expert determination? Should the process be determinative, advisory, facilitative or transformative in nature? What is the nature of the third party role and are there any constraints on it? What is the precise procedural nature of the process, what information should be given to the third party and what access should parties have to this person? Are there any limitations on the scope of disputes or issues subject to a looped-in process? What are the time frames for commencing and completing the process?

Obtain feedback and build in ongoing evaluation 4.48 Once mediation has begun, find out what is and is not working. Monitor progress and build in feedback and review and revise expectations of relevant stakeholders to keep the system appropriate. This can be as simple as checking in with parties at the end of each day to get feedback on how the process is going for them and if there is anything they would like done differently in future. In complex and long-term dispute management arrangements involving both mediation and other processes, monitoring and feedback is usually built in to the system. Process designers must accept that changes will be needed occasionally and build in opportunities to give effect to them.

Putting it all together: An illustration

4.49 This discussion of dispute resolution design shows that individual mediation processes may look quite different from one other. Mediator roles, timing, levels of formality and communication norms can vary considerably. Mediation offers adaptability for diverse parties, issues and outcome goals. [page 108]

Case illustration: Julia and Tony Julia signs a personal guarantee in favour of Tony, manager of a printing firm, in respect of any amount due or owing by Cosmo Pty Ltd, a corporation of which Julia is the sole shareholder and director. The guarantee is given in conjunction with a credit account application made to Tony and signed by Julia on behalf of Cosmo Pty Ltd in respect of printing services to be supplied to the Politan Group, of which Cosmo Pty Ltd is the management company. Tony immediately approves the application. Some months later Cosmo Pty Ltd goes into liquidation. Tony, who is unaware of this, continues to provide printing services to the Politan Group for six months. Tony claims that $622 290.98 is outstanding for printing services and seeks payment from Julia under her guarantee. Julia disputes the amount and claims that in any event Cosmo Ltd had ceased to be the contracting party for the printing services to the Politan Group when the first order was placed on behalf of the Group and that the contracting party was some other entity within the Group. Accordingly her guarantee did not cover printing services ordered after that time. The parties agree to mediate. Diagnosing:The cause of the dispute is a misunderstanding over the identity of the contracting parties and different legal advice on likely court outcomes (data conflict — available information interpreted differently). The differences are based on assumptions acquired from previous representations

(communication conflict — communications unclear, incomplete or misunderstood), business transactions and knowledge of client company affairs (structural conflict — unequal access to information). Defining: While the legal definition of the dispute is whether Julia conducted business in a misleading and deceptive manner and whether the guarantee extends to the work undertaken, the mediation definition is: How to deal with different interpretations of the guarantee? How to deal with the different calculations of the outstanding amount? How to address the financial consequences flowing from the (last six months) supply in printing services? How can further losses/negative financial consequences for the parties be contained? To what extent will there be future business between the parties and how will this be arranged? What else is required to finalise the matter? Design:The following design elements were adopted: Pre-mediation session with each party and legal adviser prior to the mediation date. Agreement for a one-day mediation with a telephone follow-up by the mediator. Agreement to check-in with the parties after lunch to see how the mediation was going for them and if they wished to move to a determinative process (adjudication). Exchange of accounting documentation and mediation memo including issues papers from both sides.

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Mediation venue with oval table (to facilitate discussion), office and kitchenette facilities for breaks, and which is within walking distance of lunch restaurants. Attendance of solicitors representing Julia and Tony to ensure both have access to legal advice and any settlement agreement can be immediately drafted. Solo mediator with strong facilitative skills and general business and legal knowledge. Opportunity for Tony to telephone his wife who was expecting a baby and for Julia to check in with the office. Opportunity for parties to speak extensively with each other and to meet with mediator without advisers present. Settlement agreement only binding if in written form and signed by both parties.

Mediator Learnings 4.50 This chapter raises the following points of particular significance for mediators: 1. Mediators need to continually diagnose, and re-diagnose, a dispute on the basis of the changing information which they have. The diagnosis relies on data provided by the parties and on an existing set of concepts which mediators can use to process it. 2. A dispute appropriately defined is a dispute half-resolved, and mediators need to take care in defining conflicts in ways which are suited to their resolution through mediation, as opposed to definitions which might be suited to litigation or other dispute resolution processes. 3. On the basis of their diagnosis and definition of the dispute, mediators can use dispute resolution design principles to make informed choices about how to design and implement the mediation.

Tasks for New Mediators 4.51 Identify a dispute in which you have been involved personally and analyse it in terms of the sources of conflict referred to in this chapter. What other factors not referred to here might have caused the conflict to occur? What interventions worked and did not work in relation to resolving the dispute? How might a mediation have been designed to deal with the particular nature of this dispute? 4.52 Consult a news-service for a report on a dispute of some magnitude. What are the positional claims made by the parties to the dispute? What might be the interests and needs underlying these positions? As the dispute continues to be reported in the media, how do the parties’ positions and interests change? [page 110] 4.53 Refer to a classic court decision which you know well from your legal studies (for example Donoghue v Stevenson (1932) AC 562). How was this dispute defined for purposes of the litigation? If the same dispute were to be mediated, how might it be defined for purposes of the mediation? 4.54 You are establishing a mediation centre with two rooms available for mediation and which will accommodate the mediation of a wide variety of disputes. Your budget is limited. List what you will need to operate effectively in terms of furniture, facilities and the like. Describe how you will arrange the setting. 4.55 Refer to the fact scenario contained in the presentation of a mediation at the end of Chapter 1.Assume you are going to conduct this mediation. Outline your ideas for diagnosis, defining and designing the process. Your mediation design may appear quite different from the mediation as described in Chapter 1.

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CHAPTER 5

Managing the Mediation Process Introduction A Six-stage Process The Mediator’s Opening Statement The Party Initial Statements Defining the Problem Discussion and Exploration of Issues in Joint Session Generating Options, Negotiation and Problem-solving The Separate Meetings Final Decision-making Recording the Decisions Closure Post-mediation Activities Variations in the Process Mediator Learnings Tasks for New Mediators

Introduction 5.1 This chapter deals with the stages of mediation and the role of the mediator in conducting the mediation process. Here the mediator may assume multiple identities: chairperson, manager, moderator, guide, leader, umpire, coach and catalyst. All these roles are based on the distinction between process and content, unreliable and misleading as that distinction is: the mediator is responsible for conducting and managing the process of

[page 112] dispute resolution, while the parties are responsible for making decisions on its substantive content. For more on the process/content question see Boulle (2011: 35–7). In Chapters 2 and 4 reference was made to the roles of mediators before the commencement of the mediation meeting. Here the focus is on their roles during the mediation meeting itself, the term meeting denoting that mediator and parties meet in each other’s presence for a significant part of the overall mediation, though some meetings can take place by telephone or online or on a more occasional basis. Clearly the more work that has been done prior to the meeting the more the mediator will be able to abbreviate some stages without jeopardising the process. Attention is also given towards the end of the chapter to mediators’ post-mediation activities.

A Six-stage Process 5.2 Despite the diversity in mediation practice, most mediators follow a similar structure. In addition new mediators need a commonly accepted starting point from which they can develop and deepen their work. This chapter offers such a starting point, recognising that we need a basic process before we can decide to deviate from or vary it. Here the mediation process is explained in terms of the following six stages: 1. 2. 3. 4. 5. 6.

mediator’s opening statement; party initial statements; definition of the problem; discussion and exploration; generation of options, negotiation and problem-solving; and final decision-making, recording and closure.

Table 5.1 visualises this process and its component parts and has been adapted from the five-stage model in Boulle, Colatrella and Picchioni (2008: 63). Not all mediation processes feature all

components and sometimes the order and approaches vary; there are, for example also three-stage models and 12-stage models. However, they all generally follow the same objectives and principles.

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The Mediator’s Opening Statement 5.3 The opening statement by the mediator (the MOS) is an important stage in the process, particularly for first-time mediation clients, and regardless of how much prior contact there has been with the mediator.

Meeting, greeting and seating 5.4 Prior to the formal MOS there is an important informal aspect of

the process that is often underestimated: meeting, greeting and seating. As the terms imply, this is where mediators greet the parties, engage in pleasantries and small talk and seat them according to the mediator’s sense of what is [page 114] appropriate: on seating see 4.44. This may also involve some introductions; first of the mediator where he or she is unknown to the parties and second of professional advisers who are present or of other parties not known to one another (for example a claimant may not know the insurer’s representative). In large mediations this can be facilitated with a mediator-prepared participant list. In commercial mediations there may be an exchange of business cards. 5.5 In this early stage mediators should also indicate what would be considered suitable forms of address, in particular where it seems appropriate to use first names. It is also the time to establish any constraints for the meeting: time commitments all round, breaks for the nicotine tragics, limits on mobile phones, prohibitions on recording devices and the like. The question of small talk at this stage depends very much on questions of culture, time and personality. Where it is appropriate in terms of these factors, small talk can personalise relationships between parties and mediators and assist the parties to settle in to the process.

What are the functions of the MOS? 5.6 The mediator’s opening statement has the following functions. Building rapport and creating a constructive climate for negotiation It allows parties to settle in, puts them at ease as their role is restricted to listening and gives mediation a ‘mini-ritual’. It builds rapport between participants and mediator. It commends and reassures parties on their choice of mediation (if

relevant) and compliments them on their commitment. It allows mediators to establish their credentials and trustworthiness. It establishes positive goals and an optimistic tone for the proceedings. It verifies the extent to which parties have authority to settle: see the NMAS Practice Standards s 3(3)(e)(iii). Disclosure by mediator (see the NMAS Practice Standards s 5(2)) It allows mediator disclosure in relation to potential conflicts of interest and prior contact with the parties. Nature of mediation (see the NMAS Practice Standards s 3(4)) It reminds parties about the nature of mediation, the mediator’s role and their own role. It can be used to distinguish mediation from other forms of intervention such as counselling, arbitration and (especially in court-referred matters) adjudication. It can be used to explain a mediator’s style and the applicable mediation model. [page 115] Roles of mediator and participants in mediation (see the NMAS Practice Standards s 3(4)) It highlights the fact that the mediator is impartial and will not make decisions for the parties: (see the NMAS Practice Standards s 5(1) and (5)). In court-related matters, it clarifies the reporting role (if any) of the mediator to the court (see the NMAS Practice Standards ss 6(3) and 7(3)(c)(iii)). It allows for clarification on the roles of lawyers, experts, support parties and others present in person and via tele- or video-

conference. Where appropriate, it confirms the parties’ authority to negotiate and to settle (see the NMAS Practice Standards s 3(3)(e)(iii)). The mediation process (see the NMAS Practice Standards s 3(4)) It establishes the order for the parties’ initial statements. It explains the sequence of events for the rest of the mediation meeting, while emphasising procedural flexibility. It explains how the mediator intends to structure separate meetings (see the NMAS Practice Standards s 3(4)(h)(v)). It encourages parties to participate actively and reminds them that they are in control of the outcome, and determine whether or not a mediated settlement is reached and on what terms. It encourages openness and information exchange. It checks with parties that they understand the process and encourages them to ask questions at any stage. It manages expectations, for example by reminding parties that they might reach impasses and that some give and take will be required. It addresses note-taking by the mediator and what will happen with the mediator’s notes after the mediation (see the NMAS Practice Standards s 3(3)(e)(i)). It deals with the confidentiality issue (see the NMAS Practice Standards s 3(3)(e)(ii) and s 6 especially s 6(2), (3) and (4)). It clarifies special conditions, for example on the need for agreements to be reduced to writing before they are binding, or on ratification or review requirements (see NMAS Practice Standards s 7(3)(a)(iii)). Mediation guidelines and housekeeping It allows practical and constructive guidelines to be set for the conduct of the mediation meeting. It allows the mediator to deal with housekeeping issues such as the time available, breaks, amenities, parking and so on. It establishes the mediator’s leadership in relation to the process and parties’ commitment to the mediation guidelines — the ‘table

manners’ for the meeting. [page 116] In almost all cases the MOS is presented orally, but the main points can be distributed in written form or shown on a projector screen which parties can follow as the mediator works through them.

What are the main principles to be followed in the MOS? 5.7 The main principles that underpin the MOS are set out below. It should be presented in positive, future-focused and goal-oriented language. This type of language will help to establish a constructive climate for the inter-party negotiations. It should be in plain language and avoid legal or technical terms. An MOS may assume a conversational and informal style while still appearing professional and polished. It should be delivered in a confident manner as this will help to build the mediator’s authority and credibility. The MOS should be concise so as to maintain the parties’ attention. Mediators should assume that some of the MOS will not be heard or understood and elements may have to be repeated at later stages in the process. It should be made in all cases, even with repeat mediation users such as insurers, banks or government agencies, or where elements have been told to the parties beforehand, so that they all hear the same thing at the same time.

What is the form of a model MOS? 5.8 Every MOS needs to be adapted to what is suitable to the parties, the dispute, the circumstances of the mediation and other relevant

factors. The nature and length of the mediator’s opening will also depend on their personal style and the extent to which these points have been covered in the pre-mediation phase. However, even where there has been a comprehensive intake and thorough preparation, mediators will use this first joint session to remind all participants of the nature of the process and their respective roles in it. The following is an example of an MOS which has implicit assumptions about all of the above matters. It would require amendments, including abbreviation, in many circumstances. Mediator’s opening statement Preliminaries — welcome and introductions Welcome to the mediation, my name is Jasmine Wu and I am the mediator today. You both know each other, but you may not know each other’s solicitors. Kath, this is Max Schumacher, who is assisting Kim. Kim, this is Raphael Lauren, who is Kath’s solicitor. Now please call me Jasmine … Are you also comfortable with first names …? Time frames and authority to settle Now before we get going I would like to check with you on times. We originally agreed to meet today for up to eight hours, that is until 5:00 pm at

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the latest and obviously with some breaks as required. Can you all recommit to that …? Any parking limits, or other time constraints …? Disclosure of prior contact with parties By way of background, Kath, you approached me about mediation and I spent some time talking to you on the phone and

sent you out some written information, and Kim, I did the same with you. And you both know that I have spoken to your solicitors by telephone and have received papers you prepared for me. That is all the contact I have had about this matter and I have had about the same access to both of you. Are there any queries about that …? Nature of mediation and role of mediator I understand you’ve made the decision to come to mediation yourselves and generally this is a better way of dealing with problems than going into armed combat. So that’s a commendable start. Let me tell you briefly a few things about mediation, though I appreciate that you may have heard some of this before. Mediation is an opportunity for those encountering problems to make decisions about them themselves. My role as mediator is not to make those decisions for you; nor is it to tell you what decisions to make or to advise you on the law or on technical matters. My role is essentially to assist you along the way in your own decision-making. Sometimes emotions or a breakdown in communications make it difficult for people to sort out differences. The mediator’s role is to guide them down the path of making smart choices for the future and to help them avoid obstacles and pitfalls. Kath and Kim, you will be discussing the situation as you see it and making the decisions, and your advisers will assist you in that process. I am an impartial party in the mediation, I will not take sides in the dispute and you do not have to try and persuade me about the merits of your case. Checking understanding So the objective today is for you to make decisions on the issues you are facing and my role is to assist you in that process. Any questions so far…? Mediation procedure Now this is the procedure we will follow in the mediation. Shortly I shall ask each of you in turn to explain to me what your main

concerns are today. This need only be a brief overview as there will be time later to go into the detail. After you have each made initial statements and I have checked that I understand what is important to you, we will move on to confirm the matters in respect of which there already is agreement and what matters still require decisions. I will then write these issues on the whiteboard and we can use it as a meeting agenda. You will then work through all the issues on the board, looking at options for dealing with them and making as many decisions as you can. Separate meetings A normal part of a mediation is for the mediator to meet separately with each of the parties. As you have advisers, I would meet with Kath and Raphael together and with Kim and Max together. This gives me an opportunity to see how the mediation is going for each of you, it allows you to raise matters

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which have not come up when we were together and it allows the other party to have a break and to think about settlement options. It is also an opportunity for refreshments and to make any calls if you so need. I will not disclose to the other party anything which each of you tells me in these meetings, unless you specifically request me to do so. Normally I hold these sessions when we have already worked through most of the issues but you are free to ask for one earlier if you have the need. Are there any questions on these meetings, Kath …? Kim …? Of course this is a flexible process and anyone can ask for an adjournment at any reasonable time. Mediation guidelines Now in my experience mediation works best where we all observe some basic guidelines. It helps if we all speak one at a

time, so if you want to say something when another person is talking please write it down. That way you won’t forget it and will have every chance to express yourself later. It is also important to treat one another with respect and so it is useful if no one denigrates the other, even when emotions run high. As you know this is a non-smoking building and we should probably also make it a mobile-free zone while we are together. We could call these the table manners for the mediation. Can you commit to them, Kim …? Kath …? Confidentiality I just need to refer to one more matter before we begin. Mediation is conducted confidentially, which means that in so far as the law permits everything said and done in mediation stays in mediation. So none of us may disclose what happens at the mediation to outsiders. I will be taking some brief written notes to aid my memory but these will be destroyed after the meeting. Mediation is also conducted on a ‘without prejudice’ basis which means that should the matter go to court, which we hope it will not, then neither of you can bring evidence about what the other said or did at mediation or produce documents made for mediation. Do you understand the basic principles here …? Please check with your solicitors if you require more advice on these points. Nature of mediated outcome As regards the outcome, the situation today is that any agreements will not be binding until they have been reduced to writing and signed by both of you. Does that reflect your wishes? Questions and commitment Now just before we begin, are there any questions which either of you have about mediation generally, or about what will happen here today? Kath …? Kim …? Good, are you both then prepared to proceed along the lines I have outlined …? Order of parties’ initial statements Thank you. Kath, as you initiated the complaint and the mediation, it might be useful for you to go first. Is that all right with

everyone? Transition to parties’ initial statements Kath, can you tell me what your main concerns are here today …?

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How should the MOS be delivered where there are two or more mediators? 5.9 There should be no sense of hierarchy between co-mediators, which entails that they should share the MOS and not leave all or most of it to one mediator. How they divide it up is a matter of logic, balance, convenience and training, subject only to the necessity of comediators operating as a team. Because a division of tasks is more important during this stage of co-mediation than in later stages, comediators require a clear understanding of who will say what and what their ‘cues’ are in order to operate as a team in delivering the MOS. See further on the roles of co-mediators at 9.18–9.36.

How should questions arising out of the MOS be dealt with? 5.10 Questions asked at the mediator’s invitation after his or her MOS should be dealt with as clearly (albeit briefly) as possible. Solicited or unsolicited questions during the MOS presentation can be dealt with there and then in like manner, or the mediator can advise that they will be answered later in the MOS. A delicate balance is required between satisfying the needs of the questioner, on one hand, and avoiding over-elaborate answers and delays, on the other.

What should be done if a mediator omits an

important element of the MOS? 5.11 This depends, as with omitted cooking ingredients, on when the discovery is made. Generally a missing element can be added at any stage of the mediation, provided the mediator openly acknowledges the oversight and emphasises its ‘normality’ in mediation. For example ‘I’m sorry that I forgot to tell you in the beginning that it is a normal feature of mediation for mediators to see the parties separately …’. After a certain stage in the mediation, as with cooking, it will be too late to add the missing ingredient and in some cases this might have minimal impact on the final product.

The Party Initial Statements 5.12 In most mediations the parties (and their representatives if present) will be invited to make statements early in the proceedings. Here the mediator hands over to the parties and they have an active role in the process for the first time.

What are the purposes of party statements? 5.13 The purposes include: To allow each party to make their first contribution without interruption or confrontation and to satisfy their need to have their say and be heard. [page 120] To provide information to the mediator about parties’ concerns and feelings, particularly where a mediator has had no prior contact with the parties, as a basis for understanding the dispute and developing an agenda. To give everyone in the room ‘the big picture’ of the dispute situation.

To provide a basis for the mediator to acknowledge what the parties have said so as to satisfy their need to be listened to and know that they have been heard. To provide an opportunity for each party to hear (and possibly acknowledge) the other’s presentation in the latter’s own words (and then as summarised by the mediator). To confront each party with aspects of the other’s case, in order to create doubt about their own position. To give each party an opportunity to assess the credibility, sincerity and associated qualities of the other. To allow venting for cathartic benefits. To open up the dispute beyond legal issues. To give the mediator a sense of the inter-party dynamics — who leads, who influences, who is respected, who follows, who feels intimidated, who is not taken seriously and so on. During the parties’ initial statements, communication flows mainly between the party making the statement and the mediator. It is not within the purposes of the party statements to allow discussion, negotiation or altercation between parties at this stage, nor to allow parties to propose and accept solutions. Mediators must be assertive in preventing these forms of interaction and in not allowing this stage to be used for purposes which experience suggests could be premature and counter-productive. As in cooking, timing is important in mediation and the mediator has control of the timer.

What is the scope of party statements? 5.14 Party statements should deal with broad themes and not with matters of detail. This means they need only be brief. These requirements should be explained to the parties and where statements become long-winded, repetitive or excessively detailed the mediator should refer back to these constraints. Loquacious parties might need to be reassured that matters of detail can be dealt with comprehensively at later stages of the mediation. This topic raises the question of the extent to which mediation clients should be able to ‘tell their stories’. There are many

advantages in encouraging story-telling by clients. People tell stories from the emotional part of their brain. As a result, stories contain a wealth of material, relational and symbolic information and they provide a rich basis for mediators to draw out relevant interests, needs and values of the story-teller. Story-telling allows parties to present things in their own words, it discloses relevant details, it allows the [page 121] listener to identify the story-teller’s interests and feelings and it provides satisfaction for the teller. The human memory is story-based, so it is easier for parties to recall information in a story structure rather than in a data or logic-oriented form. In short, story-telling supports effective conversation and communication. Lawyers and courts tend not to allow free story-telling and rather encourage structured disclosures from clients and litigants. In mediation there should be greater scope for story-telling and this need not all occur in the party statements. Our own preference is to keep the initial statements relatively concise and to allow any necessary story-telling to take place when the parties exchange information and views on the items identified in the agenda: see 5.54–5.55. There is also another side to story-telling. Stories tend to focus on the past, they reinforce blame and other negative judgments and they may have no impact on the other negotiating party, especially if that party has heard the story before. Tellers of conflict stories tend to cast themselves as the victim and the other side as the perpetrator or problem-maker with little or no recognition of their own contribution to the situation. Encouraging story-telling during the discussion and exploration stage rather than at the beginning of a mediation meeting better promotes the benefits of story-telling and reduces its potential disadvantages. This is because the mediator will have had time to create a constructive and collaborative mediation climate; in addition the parties will have been acknowledged in their initial statements and have agreed on issues for discussion and negotiation. At this stage of

the mediation parties may be less likely to insist on a black and white version of reality and more likely to offer a constructive and nuanced perspective through their stories.

What is the focus of party statements? 5.15 Mediators can invite parties to focus on different factors in their statements, though the extent to which this guidance will impact what the parties actually say is unpredictable. Thus mediators can attempt to make the focus and content of the opening statement: Fact-based: ‘Tell me the history and facts in this case as you see them …’ Chronology-based: ‘Can you give me a timeline of events leading up to and following the incident?’ Rights-based: ‘Tell me what your arguments and evidence are …’ Positional: ‘Could you please outline your position for me?’ Legalistic: ‘Tell me what the issues in dispute are here …’ Narrative: ‘Tell me what happened and what effect it had on you …’ Interest-based: ‘Tell me what your concerns are today …’ or ‘I have read your lawyer’s case summary and am now interested to hear from you about what is important in all of this.’ [page 122] Problem-solving: ‘Tell me what decisions need to be made today …’ Procedure-based: ‘Tell me first how you think we should go about resolving the problems you are dealing with …’ 5.16 Each approach has its advantages and disadvantages. Most mediators would regard the last four approaches as more appropriate than the first five. Each of the last four is in keeping with the philosophical assumptions of mediation. They will be counter-intuitive for many mediation clients who want to be positional, legalistic or rights-based and who may require some explanation and justification.

For example, ‘In my experience it helps if, instead of getting into a debate over who did or said what to whom, you each tell me briefly your current concerns that you would like dealt with in the mediation …’. Where there is limited time for a mediation, mediators may choose to restrict the length of each party’s opening. In such circumstances more focused questions should be used such as: ‘Can you summarise the issues as you see them?’ or ‘If you are to walk out of here with an agreement, what is it that you would both need to talk through?’ Questions such as these are able to focus each party’s mind on the issues in dispute and help move the process quickly towards the formulation of an agenda. At the same time such questions can undermine some of the objectives of the parties’ initial statements and so should be used with care and only where time is limited.

Who makes the party statements? 5.17 Usually parties themselves make the statements verbally. Where there are professional advisers present, the practice varies. Many mediators prefer that the parties make the statements and invite the lawyers or other advisers to expand, complement or otherwise elaborate upon them as necessary. This approach is consistent with the philosophical assumptions of mediation and the need for parties to feel they have control over their own dispute. Where lawyers speak first, there is a significant risk that the content of their opening will be legalistic and positional and that it will influence and limit what their client says. Importantly, valuable information about how the client is experiencing the conflict may be missed. Clients are better placed to articulate their concerns and interests more authentically and persuasively than their lawyers. In personal injury and employment cases, for example, claimants may be best placed to communicate the pain, suffering or distress they have experienced and how it has affected their lives. Where parties are considering the possibility of an ongoing personal or business relationship, one party’s direct presentation to the other is likely to

speak to the other’s needs and concerns more powerfully than if that party spoke through their lawyer. Finally, parties themselves are usually more effective than their advisers in communicating to the other side their bona fides and genuine willingness to find a resolution. In addition some [page 123] clients tend to ‘tune out’ when lawyers are speaking and in particular not pay attention to what is being said by the other side’s lawyer. Other mediators request the advisers to make the statements and then invite the parties themselves to add their contributions. Where there are multiple lawyers, there is sometimes a ‘hierarchical’ order of presentation, with Senior Counsel speaking first, followed by barristers and then solicitors. These arrangements give a dominant role to lawyers in the mediation process and reassure them that their clients will not prejudice their cases by admitting liability or making other detrimental statements. However, mediators should be careful about establishing a strong sense of hierarchy, lawyer domination and legalistic focus at the expense of client interests and party participation. 5.18 Where there is more than one party on a side, the mediator will normally invite each side to nominate a single spokesperson to present and will be wary of inviting others to add to it for fear that this stage of mediation will become too protracted. The mediator can reassure other participants that they will have later opportunities to speak.

Case illustration: Who gets to speak at mediation? The mediation of a complex commercial dispute was held during the course of litigation and conducted in a courtroom. The mediator sat at the bar table, with the barristers and solicitors on an adjoining table and the clients seated in the public gallery. The

mediator invited the various lawyers to make ‘submissions’ to him and did not provide the parties opportunities to speak. The submissions and some argumentation proceeded for some hours, after which the mediator announced that there had been no progress in mediation, and as the agreed time had expired, he terminated proceedings. After a formal complaint to the organising agency, another mediator was provided at no cost and the matter settled after full participation by the clients (seated at the mediation table).

Finally, in circumstances where parties have supplied mediators with multiples files including case summaries and mediation memos, it is important that mediators still request an initial oral statement from the parties and/or their lawyers as described above. While documentation contains facts, demands, claims and sometimes an indication of parties’ respective interests, this information is not sufficient for the purposes of conducting mediation. During early stages of mediation mediators must be able to identify and confirm not only pertinent facts but also emotions, interests, needs, values and other motivating factors that have contributed to the conflict. In other words during this stage mediators are gathering information about the broader circumstances of the conflict and the people involved. [page 124]

Which party makes the first statement? 5.19 There is some significance, albeit limited, in who makes the first party statement. Research shows that the first speaker establishes a normative framework which can predominate and be more influential on listening parties, including a mediator, than subsequent statements. This is referred to as the persistence of the first voice. In other words mediators might be more inclined to believe a first

speaker than the second or subsequent speakers where their versions differ from the first. Although mediators do not make binding decisions, their early impressions may affect the way in which they conduct the process. 5.20 Another point of significance is that the second speaker is likely to be defensive and to deny, justify or excuse what has been said by the first, instead of giving his or her own statement. This detracts from the objectives of the party statements and, as indicated below, mediators often indicate clearly to later speakers that they are to give their own versions of events and not to respond to what they have heard. Nevertheless mediators would be wise to downplay the significance of speaking first. They should remember that while the mediator is responsible for conducting the process fairly and even-handedly, this depends on the overall conduct of the mediation and not on a single decision early in the piece. Mediators may choose to inform parties that: There is no major disadvantage in speaking second and each party will have approximate equality of speaking time. There will be other occasions for parties to go first, for example in the separate meetings, so that ‘going first’ can be rotated.

Who should decide on who speaks first? 5.21 Most mediators decide themselves who should make the first party statement. This is the preferred practice. It shows that the mediator is in charge of the process and it prevents any conflict between parties at an early stage. In making their decisions mediators need to have both a private rationale for their decision and a public explanation for it.

Private rationales for who speaks first 5.22 As with other interventions mediators require a hypothesis to

support their decision on who should speak first. The following are some potential hypotheses: The ‘weaker’ party should speak first to reassure them about the fairness of the process. The more anxious party should speak first to settle them down. The less anxious party should speak first so that the other can settle down. The party not legally represented should speak first so that they do not feel disadvantaged. [page 125] The party claiming something from the other should speak first because they need to set the parameters of the negotiations.

Public explanations for who speaks first 5.23 In order to legitimise their decision and retain parties’ trust and confidence, mediators should give a brief explanation for their choice of first speaker. Clearly, mediators would not always express publicly their underlying rationale for asking one party to speak first. However, they need to provide a plausible public reason which may involve some mediator licence, for example: ‘Kath, as you filed the complaint, would you like to go first …’ ‘I should like to hear from Kim first because she approached the mediation centre …’ ‘I should like to hear from Kath first because Kim approached the mediation centre …’ 5.24 Some mediators avoid making choices between parties out of concern about losing the trust and confidence of the second speaker. They might ask the parties to decide themselves who should speak first: this may work well in some cases, but create its own conflict in

others. They might resort to random choice, for example by flipping a coin: this is quick and prevents any conflict but might be seen as a flippant way to commence an important negotiation. Our preference is for mediators to show leadership in selecting the first speaker and to use appropriate explanations to help parties accept their decision, without making too big an issue of it. In practice the mediator’s choice is seldom challenged.

How can mediators prevent a defensive response from the second speaker? 5.25 Mediators should not invite the second speaker to reply to the first party’s statement (for example ‘Now, Kath, how do you respond to what Kim has said?’). That approach will allow the first speaker’s definition of the problem to predominate and the second speaker is likely to be defensive in response and justify, deny or excuse. Rather mediators should direct the second party to give their statement without reference to what they have just heard. They can also specifically instruct the second speaker not to respond to the first and ask them to speak directly to the mediator (for example ‘Now, Kath, without responding to Kim can you speak to me and tell me in your words what your concerns are today …’).

To whom are the party statements addressed? 5.26 As has already been indicated, party statements are generally addressed to the mediator directly and not to the other party. This is designed to: avoid heated or hostile interaction between parties in early mediation stages; and [page 126] afford the mediator the opportunity to use good attending and

following skills (see 6.35) to ensure the early communications are accurately heard and acknowledged and the speaker feels listened to. No interruptions or interactions are permitted between parties at this juncture to ensure an uninterrupted speaking opportunity. Mediators will dispense with this structured form of discourse later.

What is the mediator’s role during party statements? 5.27 A mediator’s main role during party initial statements is to listen actively to what is said, how it is said and what is left unsaid. This requires mediators to exercise effective listening skills and display appropriate non-verbal language during the presentations: see 6.32–6.37 and 6.29–6.31. They may also have to ask questions but these should mainly be open questions: see 6.46–6.47. Some clarifying questions may be necessary where a party is unclear or ambiguous but this is not the time for seeking detailed information, asking probing questions or embarking on a series of leading questions which either detract from the party telling their own story or make them defensive. When a speaker stops talking after only speaking very briefly, the mediator invites more information by asking in an open-ended way, ‘Is there anything else?’ or ‘Would you like to go on?’ 5.28 As suggested previously mediator intervention will also be required where a party statement is excessively long or descends into unnecessary detail for this stage of proceedings. Here a mediator should restate the purpose of the party statements as being to provide only a broad overview of the problem and reassure the speaker that there will be a later opportunity to go into detail. Where there is repetition of a particular fact or theme, a mediator will need to acknowledge the point being made and even write it down to cure the ‘broken record’ syndrome. 5.29 Another role for mediators during the party statements is that of recorder. Most mediators take only brief notes, usually words or

phrases to record key concerns and interests, common ground and areas of potential agreement and prospective concessions. It is difficult to practise good listening skills and take notes at the same time, though there can be a division of these labours between comediators. A common form of note-taking is as follows. The mediator divides a page with a vertical line and heads each column with the name of a different party. As the mediator records words or phrases under the appropriate column, he or she can connect concerns common to both parties with a line, numbered asterisk or highlighter pen to assist with the later development of the agenda. 5.30 For purposes of illustrating this mediator function and others to follow, the following fact scenario will be assumed. [page 127]

Case illustration: Simon and Jonathan There is a professional business partnership involving two accountants, Simon and Jonathan. Simon is the older partner in a firm established by his father many years ago. Jonathan is the younger partner who was taken into the business when Simon’s son ‘defected’ to another profession. The two have been in dispute over a number of issues for the past seven months and finally agree to sort things out at mediation. This is what the mediator’s notes might look like at the end of the party statements:

These notes allow the mediator to identify the parties’ common interests in retaining the partnership and avoiding a court battle and to recognise the fact that some of Simon’s other interests, for example on the payment of bills, are not incompatible with those of Jonathan. Mediators should be consistent with note-taking in that speakers will be conscious of sudden changes such as stopping writing or recommencing writing. Some mediators use note-taking as a way of reducing anger or a stream of consciousness; by insisting that they need to make more detailed notes, the mediator gets the speaker to talk more slowly and less emotionally.

How should the mediator deal with the request for a ‘right of reply’? 5.31 The first speaker or their adviser might ask for a right of reply after listening to the second speaker. In most circumstances this should be denied for the same reasons that the second speaker was asked not to respond to the statement of the first. A mediation is not a debate or a courtroom combat and a reply is likely to involve justification, denial or excuse and lead to an adversarial confrontation too early in the piece. A summary of the party statements is a more appropriate development at this stage.

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How does the mediator summarise the party statements? 5.32 After each party statement mediators typically thank the speaking party for their openness and frankness and the other party for listening. In terms of summarising the party statements there are two main approaches, namely to summarise the first statement directly after it has been made or to summarise after both parties have made their statements. The first approach (helpful for mediators with poor memories) reduces the risk of confusing aspects of one party’s statement with the other. It also has the advantage of the first party feeling heard and acknowledged before the second party speaks. The acknowledgment factor may free up the first party’s mind (at least momentarily) and allow him or her to really listen to the second party. Critics of the first approach take the view that summarising directly after each party’s statement devotes excessive attention to that party and leaves the other in the cold. They prefer the second approach, namely to summarise after both parties have made their summaries. The statement summaries serve several functions: to reassure parties they have been heard correctly as regards the content of what they have said; to provide acknowledgment and validation of the emotional and relational side of the parties’ statements; to enable mediators to check the accuracy of their understanding of what has been communicated and provide feedback if they have got things wrong; to enable mediators to identify each party’s priorities — that is what is important to them (substantively, procedurally and emotionally) in addressing the dispute; to require each party to hear what the other has said for a second time and from another voice;

to allow a party to add to their statement when they realise from the summary that it is deficient. 5.33 There are three types of summaries: 1. Actuality summary: some of the parties’ actual words are used so that they hear from the mediator’s mouth the same terms they have used themselves. Early words and phrases, in particular, are restated in their original form. For example in the Simon and Jonathan dispute an actuality summary would begin: Jonathan, you began by saying that this matter was quite simple and that Simon “drove you nuts” over his old-fashioned ways and needed to change to a more professional style …

2. Reframed summary: the mediator reframes the parties’ statements so as to shift to interests, remove the sting and focus on the future: see [page 129] 6.39–6.45. In this method the mediator avoids the actual words of the parties and provides a sanitised summary: Jonathan, you began by suggesting that this matter should resolve easily and that you wished to discuss how the firm could adapt its practices for the future …

3. Cross-summaries: the mediator asks each side to summarise what they have heard from the other in order for them to walk in each other’s shoes. Cross-summaries are more effective after both parties have made their statements, that is following the first approach outlined in 5.32 above, rather than after each individual party statement: Simon, as I foreshadowed earlier, I would now like you to summarise what you heard Jonathan say and then I shall ask Jonathan to summarise your statement.

5.34 As indicated previously, one of the aims of summaries is to give parties the sense of being heard and mediators need to choose a style of summary to achieve this. Sometimes an actuality summary would

be so laden with toxic and destructive statements that it may be more useful to use a reframed summary. The use of cross-summaries involves several risks for limited potential gain. It is most effective in cases involving articulate parties who are motivated to restore or maintain good relations and reach an amicable resolution to their dispute. Note that in any summary the mediator should use the second person and, where applicable, reported speech (‘Now by way of summary, you told us that Simon was …’). This distances the mediator from statements which are hostile to the other party. Therefore the mediator should not say ‘Now by way of summary, Jonathan drives you nuts over his old-fashioned ways …’.

Defining the Problem 5.35 Having listened actively to the parties and summarised their concerns, feelings and needs, the mediator is able to move the process forward and establish a structure for the rest of the mediation. This is referred to as the problem-defining stage. It involves identifying and prioritising the issues and provides a sense of direction and purpose for all participants. Moreover, it reassures parties that their concerns have been heard and noted from the outset.

Identifying areas of agreement (the common ground) 5.36 Where parties are in conflict mutual antagonism and poor communication can cause them to think that they are in dispute on all matters under the sun, including the colour of the moon. The mediator can perform an affirming role by pointing out areas in which agreement already exists. This serves to give parties a positive perspective on the problem, to delineate matters on which no decisions need to be made and to provide a platform for discussion, negotiation, cooperation and decision-making. [page 130]

These areas of common ground are sometimes called ‘easy agreements’ or ‘cheap agreements’ which can generate a ‘climate of consent’. They may include substantive issues, for example agreement on the amount of damages suffered; procedural issues, for example that both parties will accept a particular valuer’s figures; and objective standards for decision-making, for example that any agreement should comply with current industry practices. 5.37 In the partnership mediation being referred to in these sections a mediator might indicate the common ground between parties in the following way: Now you may not realise it, Jonathan and Simon, but there are several things on which you are agreed. You both agree that this is a profitable partnership which needs to remain competitive in the future. You agree that you have different professional strengths which you contribute to the firm and you agree that there are different categories of clients being serviced, though there are some questions about their worth. And finally you are both agreed that you would like to sort things out today so that you can get on with the business. Is that correct? … Okay, well now let’s look at the things we still have to work on …

The mediator describes the common ground in terms of the information provided in the party statements so that it does not appear contrived, imposed or incorrect. The mediator’s notes and summaries are instruments for achieving this goal. The mediator may present areas of agreement visually on a board or flip chart and use them subsequently to emphasise progress and maintain a sense of momentum. As new agreements are reached during the mediation, the mediator may add these to the list. 5.38 Sometimes it may only be possible to identify agreements at a high level of generality; for example that the interests of the children should prevail, or that any outcome should uphold the principle of ecological sustainability, or that both parties aspire to an outcome that is fair and minimises transaction costs. In these cases the mediator must exercise a judgment about whether to omit this stage on grounds that because of its high level of generality it may appear trite, patronising or absurd. However, our own experience is that it is an important stage in the process and should be attempted in at least some form.

Developing the list of issues/setting the agenda 5.39 Mediators can make a valuable contribution to parties’ negotiations by assisting them list and prioritise the issues which require decisions. While setting the agenda is something which many parties would find difficult to achieve on their own, it is also a complicated exercise for most mediators, whether early trainees or grey eminences. For this reason some mediators lapse into ad hoc agenda-setting, allowing the parties to talk about issues randomly as they arise. At the other extreme is a very structured and elaborate approach involving considerable leadership and finesse from the mediator in consultation with the parties. Dispute resolution theory points to the benefits of the latter approach and it is described here. However, it is a difficult ideal which requires sound understanding and extensive practice to realise. [page 131]

Purposes of agenda-setting 5.40 Setting the agenda serves the following purposes: It provides structure and clarity to a problem which might have been presented and perceived in chaotic and confused terms. It defines the dispute in neutral terms and not according to the onedimensional perceptions of each party. It subdivides the dispute into smaller individual parts to make it less formidable and easier to negotiate. It reassures each party that their concerns have been noted and will be dealt with during the course of the mediation. It serves as an agenda for the rest of the mediation and allows the mediator to check off matters that have been discussed and finalised.

It symbolises the fact that the dispute is finite as reflected in the list and not over all matters under the sun. It provides a basis for parties to prioritise the order in which issues will be addressed.

What is appropriate wording for the list of issues? 5.41 In Chapter 4 reference was made to the importance of how the issues are worded. It was pointed out with examples in 4.31 that mediators should ensure some essential principles are followed in wording items on the list of issues. To recap mediators should: Restate or reframe positional claims to reflect underlying interests and clarify and explicate parties’ needs. Change from one-sided views of the dispute towards views which reflect both sides of the problem. Move from a specific definition of the problem to one which is more generalised and tentative. Include both sides’ interests in the definition of the problem. Use neutral and non-laden language. Cast positions and interests in open-ended problem-solving questions which do not imply solutions. ‘De-legalise’ and ‘de-monetise’ the problem.

What are the different forms for the list of issues? 5.42 Some mediators use single words or phrases to define the parties’ issues. The main advantage of these approaches is that they are easy to learn and quick to perform. Other mediators convert the issues into a series of problem-solving questions. The main advantage of this system is that questions beg answers and they later provide the mediator with a useful source of leverage for

[page 132] soliciting parties’ responses. For example the mediator might say, ‘Now, Simon and Jonathan, we are looking for possible ways of answering the third question, “What is an appropriate client-base for the firm?”What answers do you each have?’ Questions are also dynamic ways of presenting the issues because they contain action words, namely verbs (newspaper sub-editors know about this when writing headlines). They give the issue some ‘lift’, a future focus and a sense of purpose, something in which the parties can get involved. It is not easy to ignore a dynamically written question (‘How can we improve workers’ conditions so that both families and business will benefit?’), just as it is not easy to ignore an action-packed newspaper headline (‘Mediator Solves Bitter Workplace Dispute Against Inordinate Odds’). Table 5.2 depicts the different approaches to issue identification in the same partnership dispute:

How can the mediator avoid a single-issue list? 5.43 In some cases parties might attempt to restrict the list of issues to one matter only. For example in an action for personal injuries arising out of a workplace accident, the parties might be agreed on the damages and be in dispute on the question of liability. The single

issue of liability, and even the question ‘is the employer/insurer liable?’, are both problematic for mediation. The mediator should attempt to generate more issues to prevent the parties becoming stuck in positional bargaining on a single issue only. In the above case the following issues might be developed: What were the circumstances surrounding the accident? How has the employee been affected by the accident? What is the basis for past claims and offers? In what proportion should the parties bear the losses incurred? What else is needed to finalise the matter? The objective of this expansion is to open up the problem-solving process and to prevent it becoming too narrowly focused too soon. While a [page 133] narrow focus might be inevitable at a later stage, the mediator strives to keep the problem open-ended in the beginning to encourage broader thinking about it.

What should be done about ‘one-party’ issues? 5.44 In some situations one of the mediating parties wishes a matter to be included in the list of issues but the other insists that it is not something requiring any decisions or even discussion. There are risks both in including the issue on the board and in excluding it. Our view is that the latter risk is the greater. To minimise problems inherent in the former a mediator in the Simon and Jonathan case could say something along the following lines: Look, Simon, the use of support staff is something that Jonathan would like to talk about and although you feel that it is not a matter requiring any decisions I think we should let him refer to it. Likewise you may wish to talk about some matters which Jonathan does not think are necessary for today’s decisions. Is that an arrangement you could both live

with?

5.45 This choice of words is designed to have the topic dealt with to some degree, to marginalise slightly its importance and to make the arrangement reciprocal so that it can potentially operate for both parties’ benefit. This problem can also be pre-empted, where time and resources allow, by advising both parties before the problem-defining begins that this difficulty sometimes arises and by indicating how it will be dealt with should it arise in the present case. This has the advantage of giving the mediator’s ‘rule’ greater impartiality as it has been stipulated before either party stands to ‘gain’ or ‘lose’ from it.

Presenting the list of issues visually 5.46 The list of issues is often presented visually on a whiteboard, flipchart paper or computer screen projected onto a wall. This provides a point of common focus for the parties, a public checklist of matters to be dealt with and a visible and a visual point of reference for the mediator. Thus when the parties are interacting too intensely, the mediator could turn to the board and say, ‘I thought we were discussing item three — Simon and Jonathan, would either of you like to indicate some possible answers to that question …? This is a deflective strategy designed to move the parties from destructive to constructive involvement. There are a number of important techniques relating to this seemingly simple function: The purpose of agenda-setting should be explained so that parties do not assume that substantive agreements or commitments are being made. It should also be made clear to parties that an agenda is not a ‘wish list’. Agenda matters should not be written up before they have been agreed to verbally between mediator and parties. [page 134]

Particular attention should be given to not including any judgmental or inflammatory terms in public view on the board. Avoid numbering the issues at this stage. Care should be taken in erasing items from the board, as they might have symbolic significance for one party. For this reason flipchart paper is advisable where there is likely to be extensive writing. The mediator’s writing needs to accommodate the visually challenged — a range of appropriate colours can be helpful in this regard. (Permanent markers are not advisable on whiteboards.) Stand to the side of the flip chart or whiteboard so that parties can see what is being written up. Sit down or move away when you have finished writing up the issues. If not all issues are written up at once, then sit down between issues to avoid falling into ‘teacher mode’. The board should be cleaned, or the paper disposed of, at the mediation’s termination so that it is not accessible to cleaners or the hatha yoga class using the room subsequently. Hard experience has taught us to be conscious of the fact that a significant proportion of adults are not literate.

Prioritising the issues 5.47 Thus far the mediator has written up various issues on a board in no particular order and the question arises as to how they should be prioritised for purposes of the discussions. There are two approaches here. The first is that the mediator invites the parties to examine and together prioritise the issues. This approach acknowledges that the parties are in control of the dispute and that their subjective priorities are more important than those of the mediator. Thus parties might want to talk first about urgent debts and insistent creditors before working through assets and valuations. The parties’ priorities can be shown visually on the board against the list of issues. In practice there is usually little problem in parties reaching agreement on priorities. However, where there are difficulties the mediator is required to intervene and is advised to try and move

through this stage quickly. In these situations a mediator might suggest alternating priorities, two ‘first’ priorities with each dealt with for a limited time or some random chance (flip a coin) on priorities. 5.48 The second approach involves the mediator taking the initiative in prioritising issues. This avoids problems of parties not agreeing on priorities. More importantly it allows mediators to use their expertise to guide parties in a constructive direction. There is no single right way for a mediator to suggest the priority of issues, but several possibilities: from easiest to hardest; areas with more probable consensus before those with less agreement; smaller or more concrete issues before more abstract or complex ones; [page 135] process-related issues before substantive matters; urgent issues first; and relational issues before substantive matters. In relation to the first-mentioned possibility for prioritising issues good negotiating practice often involves dealing with ‘easier’ matters first before moving to those which are more difficult, so that parties develop early success and confidence and avoid premature deadlocks. If this approach, in the wise mediator’s view, is considered suitable it would be inappropriate to allow parties to self-select the most difficult issue for starting their negotiations. Each approach has its strengths and shortcomings. There is also scope for reconciling the approaches in practice by balancing user choice with expert guidance. Circumstances will provide mediators with clues for exercising this task and it should be accomplished as efficiently and with as little argument and complication as possible. As with other aspects of agenda-setting, this involves some ‘lateral

leadership’ on the part of mediators. As experts in dispute resolution, mediators are alert to the best practice in this exercise but they should not appear to be imposing their list of issues and priorities on the parties.

Standard issue lists 5.49 Experienced mediators can anticipate the predictable issues in their fields of expertise even without prior knowledge of a particular dispute. This is useful knowledge where parties are hesitant about presenting issues themselves. Through appropriate questioning experienced mediators might be able to draw out of them those issues which, if only at a level of generality, they know are normal for the particular category of dispute. How mediators do this is important in that, as indicated above, they should not appear to be imposing their own agendas. Where there is time pressure mediators may even commence the mediation with the standard issues on the board, ask the parties whether they are apposite to their case and invite them to add additional issues. The following is a standard list of issues in a dispute involving the dissolution of a professional partnership. Standard issues: partnership dissolution 1. How do the parties see the future of the partnership and their business relationship? 2. What are the assets and liabilities of the partnership? 3. How should the value of the assests be determined? 4. How should the assets be divided among the partners? 5. What needs to be done in relation to the liabilities? 6. How should the clients of the partnership be dealt with? 7. What arrangements need to be made in relation to other third parties? 8. What legal formalities are required for the dissolution? [page 136]

9. What else is required to finalise the matter? 10. How should post-dissolution problems be dealt with? In relation to family matters, parenting issues might include: 1. How to ensure the children’s best interests are met in terms of residence, parenting, maintenance, education and health? 2. How to deal with future differences in relation to issues affecting the children? 3. What needs to be done to finalise an agreement? 4. How should the children be informed about the agreement? 5. How should post-agreement circumstances be managed?

Using the list of issues 5.50 As has already been suggested, mediators can use a list of issues in various ways. They can direct parties’ attention to them when there is acrimony in the room, they can tick off agreed issues to give a visual sense of progress (‘three down, four to go’), they can write up optional solutions next to each issue, and they can use the issues as a checklist to verify that the drafted agreement is comprehensive. They can add to the list if additional issues arise during the course of mediation and can use the list in any other way that helps the discussions progress.

Risks with developing the list of issues 5.51 The risks in developing a list of issues are: Where time is spent on the list and it is not used again, it may appear to have been a futile exercise — ‘Why didn’t we get to the point at the beginning?’. Where the mediator gets the list or any specific wording wrong it presents a very visible source of grievance to the affected party — ‘I told you we’re not talking about private schools today’. The mediator may be tempted to stand at the whiteboard for too long, assuming an authoritarian position — ‘Why is she lecturing

us?’. The mediator’s writing may be illegible — practise at home.

Discussion and Exploration of Issues in Joint Session 5.52 Once a prioritised list of issues is available, mediation moves to a stage of discussing and exploring the various issues that have been identified. This is an often neglected stage as it is tempting for parties, and sometimes also mediators, to move directly to problem-solving. As discussed below, however, exploration of the issues is a good foundation for good problem-solving to follow. [page 137] There are two broad modes of mediator involvement during this and the following stages of mediation, as illustrated in Table 5.3.

Purpose of discussion and exploration

5.53 Discussion and exploration of the listed issues prepares the ground for problem-solving by offering parties a deeper contextual understanding of the differences between them. The main aims of exploration are to: Identify and understand interests. What is it that underlies and informs parties’ preferred outcomes? Explore issues in the light of interests. What nuances, complexities and possibilities emerge as issues are illuminated through an understanding of interests and needs? Examine relational and symbolic dimensions of disputes and consider whether aspects could be addressed that cannot be quantified and may not involve concrete action, yet have importance to one or more parties. For parties involved in litigation these types of issues, in particular the third group, will not have been addressed in the pleadings. It is therefore essential that they are explored and discussed here. Exploration could lead to decisions on what gestures, acknowledgments, apologies or other measures are important for restoring relationships or saving face.

Exchange of information, views and perceptions 5.54 While mediation is primarily concerned with the current and future, if parties exchange their understandings and perceptions of past events it may assist in clearing the air, correcting misunderstandings and opening [page 138] the way for dealing with current and future issues. This involves mediators encouraging story-telling, as discussed in the next section. Each side can explain their motivations for past conduct and the

significance to them of important events. Where emotions are high there may be considerable venting of feelings as parties engage with one another on the past. Thus mediators might say to parties in workplace disputes: Tell me a little about how the workplace was for each of you before the problems began to arise … Likewise they may inquire in a family dispute: Tell me first of all about the children, can you each give me a thumbnail sketch of one child …

5.55 However, mediators are advised to limit the time spent on discussing past events so that matters do not become too protracted and complex. Such exchanges will often not lead to agreement about the past as mediation is not good at discovering the ‘historical truth’. (Few dispute resolution methods are.) Thus where there are several grievances over historical events, mediators might advise parties to select a few to deal with (one of ‘hers’ and one of ‘his’), before closing the book on the past. It can be useful to manage parties’ expectations in this regard by emphasising that they will be talking about ‘your version’ of the past, or ‘your understanding’ or ‘how things seemed to you’, as opposed to them telling ‘what happened’ or ‘what the facts are’. This is to challenge the assumption that there can be only one version of history. The mediator might also request that parties talk only about ‘your version of events and the effect this had on you’ without referring to the motivations, invariably negative if not conspiratorial, of the other party. In other words ‘each of you talk about your experiences without saying why the other party acted like they did’. This is to challenge the attribution bias which causes people to attribute blame to others in terms of their intrinsic malevolence and exonerate themselves in terms of ‘the circumstances’. Case illustration: Working with different truths An employment dispute was set down for trial in which the pleadings identified a major conflict of fact (and law): had there, or had there not, been an oral variation of the service agreement? The case involved a substantial damages claim and was

scheduled for three days of trial, each party having a number of witnesses to support their case. At mediation there was 30 minutes’ discussion over the question of what the employer, the manager of a finance company, and the employee, an accountant, had said to each other three years earlier. While there was some clarification of the factual issues, there was no agreement on the essential disputes of fact. This factor was acknowledged and the parties moved on to find a commercial accommodation involving the finance company re-deploying the accountant in one of its subsidiaries. The outcome was achieved without ever reconciling different versions of the ‘historical truth’.

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Story-telling and storylines 5.56 During the discussion and exploration phase parties will build on the storylines initiated during their respective opening statements as they begin to address each other directly rather than through the mediator. The opportunities and risks of story-telling have been addressed previously in relation to party initial statements: see 5.12–5.34. To recap the earlier points, story-telling can be a powerful communication medium in mediation. Mediators and other participants listening to one party’s views through the medium of their stories are likely to have a good recall of what is communicated verbally and nonverbally because stories engage the emotional part of the brain which is associated with memory. They are also likely to have a good sense of how the story-teller has experienced events, feels about the story and what is important in the story from the teller’s perspective. Story-telling can also be risky. As explained previously, stories focus on the past and encourage blame and position-taking. If the stories are not new, telling them again will not persuade the other side — they might have the opposite effect and frustrate and agitate. In

addition stories often contain minor errors or omissions that can easily be seized upon by the listener as a means of discrediting the whole narrative rather than addressing the underlying issues. Finally people can use stories to talk around the problem and avoid addressing the real issues. Mediators can reduce these risks through effective process management and communication skills, which include: keeping parties on track by referring to the agreed agenda — if used throughout mediation this technique works to legitimise and validate agenda issues; sharing story-telling time between parties so that one party does not dominate; detoxifying language used in the narrative; preventing and managing interruptions from the other party; asking parties to focus on one aspect of a story, for example redirecting a party to a particular significant event; discouraging generalisations such as ‘they never’ or ‘they always’ by shifting from the general to the specific (‘Was there a time when they did?’) or by focusing on the consequences of offending behaviour (‘Tell us about how you felt then …’); using reframing techniques: see 6.39–6.45.

The risks of ending exploration too early 5.57 It is important to stay in discussion and exploration and not to move into problem-solving too early. Discussion and exploration encourage parties to listen to each other while paying attention to their own needs and [page 140] reactions. It provides an opportunity for parties to develop new insights, shift perspectives and reconsider their relationship. Where mediators allow parties to cut the discussion and exploration phase

short, effectively moving directly from agenda-setting to problemsolving, they may not be ready to let the conflict go and this increases the risk of impasse.

From exploration to option generation 5.58 In discussion and exploration mediators continue to foster a collaborative climate that addresses power imbalances as they acknowledge and work with intense emotions that can arise from story-telling and other forms of dialogue. Mediators may also use ritual and metaphor as diagnostic and intervention tools, building trust and confidence through acknowledgment and celebrating incremental and relational successes in ways that save face. Finally mediators can use their analytical skills to look for conciliatory intentions and hidden offers that may give insights into underlying interests and assist in option generation.

Generating Options, Negotiation and Problemsolving 5.59 After issue exploration mediation moves into what is referred to as a ‘problem-solving’ stage of the process. Some of this is just semantics but there are some important variations in practice. Thus problem-solving, involving option generation and creative negotiation, might be evident in commercial and neighbourhood disputes but be less evident in personal injury cases which just involve a haggle over money. As much of this stage has to do with different aspects of negotiation and bargaining it should be read in conjunction with Chapter 7.

Developing and exploring options 5.60 Option generation offers a safe entry into problem-solving. It is said to be ‘safe’ because parties refrain from making any commitment in this step. As mediators assist parties to work through the agenda, all ideas are welcomed onto the mediation table, no matter how

impracticable they might seem. Generally parties are encouraged to address each other directly, although mediators still actively manage the process and reframe options by reference to agenda items and the parties’ identified interests. The primary aims of option generation are to: expand the range of possible options for resolving the conflict; encourage parties themselves to generate ideas for resolution of a conflict; encourage parties to think of different ways to accommodate joint and individual interests; [page 141] encourage parties to work together to solve the problem; identify a range of possible solutions without a commitment to any one; and pre-empt impasse situations by keeping the discussion at a general level. As parties generate options, they may reach agreement on certain issues. Mediators can acknowledge these as ‘agreements in principle’ and note them in writing. At the same time mediators should continue to encourage parties to consider a broad range of options before narrowing them down to specific solutions for settlement. Where there is little resourcefulness from the parties in the exploration of options, mediators will consider a variety of process interventions to assist them generate options. 5.61 It has been emphasised that mediators encourage parties to develop and explore a wide range of options to address the agenda items, meet their interests and needs, and ultimately settle the dispute. One way of doing this is through the device of brainstorming. Here all parties are invited to identify possible options for dealing with the dispute, regardless of how practical, reasonable or viable they may or may not be. The objective is to get parties to think

imaginatively about solutions and to feed off each other’s ideas without the twin fears of being judged as foolish or being committed to their suggestions. Options are noted by the mediator. For further discussion on the role of brainstorming in mediation, see 7.42–7.43. Other ways of encouraging parties to come up with options are by the mediator asking hypothetical questions (‘What could you think of in relation to …?’) or analogous reasoning (‘Can you think of ways in which other people have dealt with this kind of problem …?’). A further way is encouraging creativity through the techniques outlined in 7.41.

Evaluation of options and initial negotiating 5.62 Here parties begin evaluating options and packaging offers and counter-offers as they work incrementally towards agreement. While mediators keep the negotiations on track by linking discussions to the agenda, this step is particularly fluid and often involves separate sessions with each party: see 5.64–5.74. Mediators should encourage parties to evaluate options in terms of their respective needs and interests and to select those which satisfy both those interests and independent standards of fairness and reasonableness (such as industry norms). Mediators should also invite parties to consider the practical consequences of accepting and rejecting various options. Where no options satisfy both parties, a mediator may attempt to gain agreement at a level of principle. This type of mediator intervention is referred to further below: see 7.29. [page 142]

Case illustration: The value of generating options A mediation involved a local authority and a property owner who had been affected by major extensions to the council’s sewerage works which jeopardised the property’s future residential use. The council had offered to purchase the property but no agreement

could be reached on the purchase price. After other issues had been discussed, a brainstorm session was held over options for the land. No fewer than 10 options were listed, including a joint commercial venture between council and owner and the development of an environmental park named after the owner. The brainstorm included an evaluation of all options, resulting in the mutual choice of the original option of a council purchase with the price to be decided by an agreed valuer. While the exercise ended with the option the parties had first thought of, the process adopted gave it greater legitimacy and prompted the parties to fine-tune ways of achieving it.

Positional bargaining 5.63 There will often be hard positional bargaining towards the end of a mediation. Here parties use concessions, packaging, compromises and splitting the difference to reach agreement. Lawyers may become more actively involved at this point as they assist with putting together and evaluating offers and counter-offers. The mediator’s role in the positional bargaining process is dealt with below: see 7.19–7.34.

The Separate Meetings 5.64 The NMAS Practice Standards s 7(3)(b)(viii) identifies the use of separate meetings as a mediator skill. There are many ways in which mediators can change the format of the mediation from joint meetings. Here the term ‘separate meetings’ is used to refer to meetings between a mediator, on one hand, and each party and their advisers, on the other. Other terms used for this part of the process are ‘private meetings’, ‘separate sessions’ and ‘caucuses’. There are many variations regarding these meetings and Table 5.4 below suggests distinguishing terms for different kinds of meetings.

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The above terms are adopted to distinguish among the different kinds of meetings which could be convened at this stage in proceedings. In what follows, the emphasis is on separate meetings, as defined above, though many of the principles are equally applicable to other kinds of meetings.

For what purposes are separate meetings convened? 5.65 There should always be a reason for calling separate meetings and the reasons will vary according to the stage a mediation has reached. Strictly speaking they should be called to serve the requirements of the parties and their negotiations and not to address a

mediator’s comfort needs or because he or she is at a loss as to what to do next. (For a mediator’s problems, ranging from confusion to thirst, adjournments can be called.) Some of the purposes for calling separate meetings are to: provide relief from destructive emotions and high tension and allow the relevant party to vent their feelings in the absence of the other; check in with each party on how, from their perspective, they are experiencing the mediation process and its progress; provide space and time for a vulnerable or disempowered party to revive; establish whether there are any concerns which have not yet been raised but which might need addressing for resolution of the dispute; acknowledge the strength and intensity of emotions; check assumptions made by the parties or the mediator; probe for additional information which a mediator is unlikely to obtain in joint session; deal with breaches of the mediation guidelines and threatened disruption of the process and get parties to recommit to the process; [page 144] encourage brainstorming and creativity; help manage parties’ expectations about the process and what can be achieved in mediation; ascertain whether an apparently inflexible and intransigent party is open to further negotiation; engage in ‘reality testing’ (see 8.14–8.15) with a positional or intransigent party or encourage settlement in other ways; probe the strengths and weaknesses of the legal case and other alternatives to settlement; engage in risk assessment (see 8.16–8.20); coach parties in constructive communication and productive

negotiation strategies; provide a risk-free environment for parties to adduce settlement outcomes; work up concessions, offers and counter-offers; check out privately the acceptability of an imminent agreement; allow for last-minute consultation with parties before a mediator terminates mediation without agreement being reached; test parties’ perceptions of each other, for example to ask party A how they view party B’s interests and position; check confidentiality and identify information that may be shared with the other party; and discuss with a party further work, information, decisions or advice that might be helpful to progress negotiations.

When should separate meetings be called? 5.66 Here there are no hard and fast rules and practice varies. Where one or more of the above purposes can be achieved, it is an appropriate time to call separate meetings. Where parties or their advisers request them, it is appropriate to accede to the request provided it does not appear to allow a requesting party to control or manipulate the process. In some mediation programs separate meetings are called as a matter of routine, regardless of whether there is an overt need for them. In others they are called as a matter of mediator discretion. In some mediation models mediators call separate meetings directly after the party statements to establish whether there are concerns which have not yet been raised or to gather information which has not been disclosed. Other mediators commence mediation with separate meetings, a practice referred to previously: see 2.20. Some mediations are conducted exclusively through separate meetings but this involves a different concept known as ‘shuttle mediation’: see 5.68 and 9.7–9.17. [page 145]

5.67 As usual, all variations have strengths and shortcomings. Our own preference is to follow the ‘orthodox’ approach and convene separate meetings after at least some, and often all, of the issues have been discussed in joint session, at least provisionally. Our concerns with calling separate meetings immediately after the party statements are that it artificially prevents the conflict from developing, it allows the parties to relapse into positional thinking, it introduces the confidentiality of separate meetings too early in the process, it gives the mediator immense power and it involves a default shuttle arrangement without that option being expressly considered and chosen. However, in reality many lawyer-mediators, unpersuaded by this compelling logic, call separate meetings immediately after the party statements, especially in mediations of commercial matters in litigation.

Separate meetings and shuttle mediation 5.68 Sometimes a mediator may conduct a series of separate meetings and begin shuttling messages back and forth between the parties. This is particularly the case in the commercial litigation context where there is a view that separate meetings are necessary when parties reach the stage of making offers and counter-offers to each other. However, while it might be necessary for parties to be able to confer alone and to consult with their advisers before making or responding to offers, it is not necessary that this be done through separate meetings. It is preferable to adjourn the mediation to allow such deliberations to take place and to resume the joint session thereafter. The concern here is that the process should not move by default into shuttle mode. Rather the move to shuttle mediation should involve a conscious strategic decision by the mediator after some consultation with the parties. It may be entirely appropriate to adopt shuttle mediation but such a shift should involve a deliberate and transparent decision. This is because the mediator’s role in shuttle mediation is different to that in non-shuttle mediation — in shuttle mediation a mediator becomes the sole messenger for offers and counter-offers and the sole conveyer of other information on the attitudes and

behaviours of parties. There are necessary limits on the confidentiality principle in this context and as indicated previously the mediator acquires significant power and responsibility as the keeper of secrets. For further discussion of shuttle mediation, see 9.7–9.17.

Separate meetings and physical space 5.69 Practice varies in relation to where separate meetings take place. Some mediators prefer to remain in the joint venue with one party and to direct the other to the alternative venue. This is partly a practical arrangement in that fewer persons have to move but it also has symbolic significance in that the mediator is not relinquishing ‘control’ of the principal mediation venue. Ideally excluded parties require a meeting room of their own but in practice they are often dispatched to windy corridors or noisy foyers. Other mediators move to a separate meeting room with the parties. This approach may be useful if the [page 146] mediator wants to work with confidential visuals and documents and needs to minimise the risk that these get mixed up with materials available in the joint meeting room. It also symbolises a physical move away from the joint session and all its challenges to a new space where fresh thinking is possible. Where the facilities allow it, parties can each be offered their own conference rooms and the mediator moves between them. This provides the mediator with his or her own space in the original venue, and more exercise through the day. It also provides the best image of equality as between the parties. See 4.41–4.44 in relation to venue, setting and seating arrangements.

How do the dynamics change in separate meetings?

5.70 As compared with the joint sessions there are two potential yet contradictory changes in the separate meetings. These may be extremely subtle changes or very pronounced, depending on the style of the mediator and the dynamics of the mediation: In a more relaxed setting the mediator can identify with the relevant person and empathise with their situation. This is sometimes referred to as ‘alliance formation’ in that the mediator builds an alliance with the person so they perceive the mediator as an ally in relation to dealing with problems they are facing. (In liturgical terms, the guardian angel function.) In a confidential setting the mediator can be a harsher critic of the relevant person and be more forceful in pointing out the downsides of their position. This is sometimes referred to as ‘reality testing’ in that the mediator uses a wide range of tactics to disenchant the person with their positional claims. (In liturgical terms, the devil’s advocate function.) 5.71 In most cases separate meetings help to build trust and deepen understanding among those privy to them. However, while many mediators regard the meetings as the critical stage of the mediation process, our experience is that in many cases they have only a limited bearing on outcomes. For example in some cases it is not possible for a mediator to use disclosures made by the relevant party as is illustrated in the following case study. Case illustration: Use of separate meetings In a mediation involving a division of matrimonial property, one party was being particularly intransigent and he requested a separate meeting. In this session he informed the mediator that the reason for his attitude was that he had recently been diagnosed with glaucoma, that he worked in the surveillance industry and that he would lose his work within the next 12 months. He did not want this disclosed to the other side (and had not even told his professional adviser until then). The mediator empathised with the predicament and the desire not to disclose it. The mediator could not use the information in any other way but

the interests of the party in explaining and justifying his behaviour to the mediator was satisfied and the matter moved to quick resolution in the next joint session.

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When to end separate meetings 5.72 Separate meetings can be ended when: they have served the purpose for which they were called; the party involved has nothing further to say and the mediator nothing more to contribute; dramatic new information, threats or final offers emerge — here it is good practice to resume the joint session and return responsibility to the parties; and the mediator decides to terminate the mediation without a settlement agreement having been reached.

The separate meeting transitions 5.73 There are four significant transitions in relation to the separate meetings. As the transitions may evoke some uncertainty and suspicion on the part of clients, mediators require an explanation to elucidate and justify the change and to reassure the parties. Here is a model mediator explanation for each transition based on the scenario of Simon and Jonathan referred to earlier in the chapter. Transition 1: Breaking into separate meetings As indicated earlier, it is normal practice for mediators to meet with each party separately and to give the other some time out and I should now like to do that with you. I shall meet with you each for about 20 minutes and if I am going to be significantly

longer than that with either of you I shall let the other person know. These are confidential meetings and I shall not disclose what either of you has said unless you ask me to do so. Jonathan, as I heard from you first when the mediation began I shall speak to Simon first now. Would you like to go into the other room, have a coffee and think about options for improving the firm’s billing system? I shall call you when I have finished with Simon … Transition 2: Commencing a separate meeting Well, Simon, thanks for meeting with me separately. Can I reassure you again that what is said here will be kept confidential unless you specifically tell me otherwise … Let’s start by hearing how the mediation has been going for you so far …? Thanks, Simon, now is there anything new you would like to raise with me which hasn’t come up in the joint session …? Transition 3: Ending a separate meeting Now as I understand it, Simon, you would like to make an offer to Jonathan when we resume in joint session along the lines that if he is willing to set up a more effective billing system for his clients then you are prepared to reduce the use of general staff on Rotary business and to spend only two afternoons a week on the golf course … And you also said that while you are on your own you will consider ways of increasing Jonathan’s share of the profits on an incremental basis. Is that correct …?

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Transition 4: Resuming the joint session Well thank you, Simon and Jonathan, for meeting with me separately. That can sometimes be an important stage in a mediation and it gave you time to consider settlement options and do some other homework. Now as a result of those meetings is

there anything which either of you would like to say to the other …?

Potential risks with separate meetings and ways of handling them 5.74 As with birth and life, there is a series of risks relating to separate meetings. In all activities there are also ways of limiting and dealing with the risks. Table 5.5 deals with the risks of separate meetings only.

[page 149] Due to these risks, and in particular the potential loss of trust by one or both parties, some mediators never conduct separate meetings. In our experience this precaution is unwarranted. However, the concern underlying this practice should be understood and dealt with through the expediencies of advance notice, explanation, confidentiality and equality referred to in the above paragraphs.

Final Decision-making 5.75 It is customary and usually desirable for parties to be brought together again after the separate meetings for further discussion, consideration of options and final bargaining. Here mediators should ensure that all agenda issues have been dealt with, that no agreements have been overlooked, that parties can live with the final settlement and that unforeseen contingencies have been considered. A mediator’s role in dealing with the dynamics of this stage is discussed in more detail in Chapter 7.

Recording the Decisions 5.76 In most mediations the agreement, if such is reached, is reduced to writing. In some it will be a term of the Agreement to Mediate that settlements will only be binding once reduced to writing. This is an important precaution against subsequent differences over whether or not agreement was reached. In some situations heads of agreement or memoranda of understanding are drafted to be subsequently refined into a deed of agreement, terms of settlement or consent orders which will be ratified by a court. In other cases, where there has not been full agreement on all issues, the lawyers may agree to exchange correspondence on some limited matters.

Who does the drafting?

5.77 Where lawyers or other advisers are present they usually draft agreements and mediators have only a limited role of checking for completeness, accuracy and absence of ambiguity. In ‘appropriate circunstances’ mediators may draft agreements and the NMAS Practice Standards identify such drafting as a required mediator skill: see s 7(3)(b)(ix) of the Practice Standards. Where mediators draft agreements the following principles should apply: There should be close consultation with the parties over precise wording. All drafting should be done in plain language and where possible the parties’ own words and terms should be used. Positive commitments and mutual obligations should, if possible, be put first. [page 150] Non-judgmental language should be used throughout. The provisions should be specific about performance details and time frames and should include clear and verifiable methods of performance. There should be a sense of balance in the agreement with alternating use of the parties’ names and their rights and obligations off-set against each other. Each page and any alterations should be initialled and the final page should be signed by the parties; some mediators sign as witness to the parties’ signatures. A list of unresolved issues can be drafted to assist the parties in future dispute resolution efforts. Three samples of mediated agreements in commercial, family and community disputes are included in Appendix 5.

Content of the agreement

5.78 The content of the written document is constructed to reflect parties’ agreements. However, there are different styles in which these can be recorded, from a flourishing aspirational style which deals with matters of principle in broad generality to a focused legalistic form which reflects matters of detail with a view to legal enforceability. The context and circumstances of a mediation will determine which of these styles, and the many variations in between, should be adopted. 5.79 As regards specific content, most agreements are likely to contain the following elements: names of parties; date of agreement; identification of the dispute; responsibilities or obligations of each party; if payment is part of the settlement, terms relating to amount, timing, place and form; the effect of the agreement on ongoing litigation; and signature by parties and other required formalities. There can also be recitals indicating the background to the dispute and linking it to specific litigation or court orders. The following matters should also be considered for inclusion: Cooling-off period: ‘This agreement will become effective after a period of 24 hours/three days unless one party notifies the other in writing …’ Return to mediation: ‘In the event of the parties encountering any difficulties in the operation of this agreement they will use their best endeavours to settle the problems with the assistance of the mediator.’ [page 151] Follow-up of any performance: ‘The mediator will contact each party within seven days to check progress and performance in

relation to the agreement.’ Goodwill statement for the future: ‘The parties agree that they will treat each other with courtesy and respect in the future and avoid any behaviours which might cause the conflict to recur.’

Closure 5.80 Mediators should take some care in terminating and closing a mediation, even if agreement has been reached on all matters requiring decisions. A short closing statement can perform some of the following functions: conclude the proceedings on a positive note; commend the parties for what they have achieved; encourage compliance with the agreement; normalise the ‘post-settlement blues’, that is the prospect of parties having subsequent misgivings over concessions they have made; thank the lawyers or other advisers for their contributions; reassure parties as to the confidentiality of the mediation; invite the parties or lawyers to contact the mediator if there are problems regarding the agreement’s implementation; and invite the parties to return to mediation should that be necessary. The mediator should signify that the mediation has ended to make it clear that his or her responsibilities have concluded (apart from postmediation activities), that confidentiality is at an end and that the mediator’s fee meter has stopped. For ways of ending the mediation without settlement, see 10.68.

Post-mediation Activities 5.81 In some circumstances, a mediator’s responsibilities might not end with the termination of a mediation meeting and mediators might perform some of the following post-mediation functions.

Ratification and review

5.82 There are different forms of post-mediation review and ratification by bodies or individuals external to the mediation meeting such as boards, councils, courts or government. While this is primarily the responsibility of the parties and advisers, the mediator might discuss with them ways of securing the necessary ratification. In this regard the NMAS Practice Standards identify knowledge about enforceability of mediated agreements as an element of mediator competency: see s 7(3)(a)(iii). [page 152] The same consideration applies to the review of a mediated agreement by lawyers, accountants or other professional advisers not party to a mediation. Here it is advisable for mediators, with the client’s permission, to contact the external adviser telephonically before the client does in order to provide a balanced version of the events. Mediators can also email advisers explaining the dynamics of the process so that the settlement agreement is not reviewed with too much clinical detachment. Case illustration: Ratification issues in mediation In a mediation between a local authority represented by the general manager and a property developer it was decided that the mediator should address a closed meeting of the council in order to advance ratification of a controversial proposed agreement. The developer agreed to waive mediation confidentiality for this purpose only. At the council meeting the general manager first explained the nature of the proposed agreement and its benefits, after which the mediator addressed the full meeting of council and answered questions from councillors. This served to bring some of the context and dynamics of the mediation to the attention of the ratifiers. The council subsequently declined to ratify the agreement, a local government election being imminent.

Reporting obligations 5.83 There may be legislative or other requirements for mediators to report to persons or bodies outside the mediation room. In accordance with the NMAS Practice Standards s 6(3), reporting obligations should be disclosed to parties in advance. Ethical understandings in relation to reporting are an aspect of mediator competency: s 7(3)(c)(iii). Importantly, reporting obligations might be subject to agreed confidentiality constraints in the Agreement to Mediate. Some relevant reporting requirements are as follows: Court-related mediations: In Queensland mediators are required to file with the relevant registrar a certificate about mediation in the form prescribed: s 108 of the Supreme Court of Queensland Act 1991. Form 35 provides that the mediator has to certify whether parties have or have not participated in mediation and whether they have or have not reached agreement, but specifies that mediators should make no comment about ‘the extent to which a party participated or refused to participate in the mediation’. The form must be sealed and marked, ‘Not to be opened without an order of the court or a Judge’. Community mediators: Co-mediators usually report on the mediation in a debriefing document which they complete after terminating the process. This is submitted to the director of the program. [page 153] Legal Aid mediators: In some states mediators have to report back to the Legal Aid office and include in the report a comment on the reasonableness of the legally aided client’s behaviour, a factor which can be taken into account, inter alia, in decisions on whether to extend a grant of aid. Other: Occasionally a report is made to an external body or person paying for the mediation such as a government, an employer or a

church body.

Reporting obligations for family mediators The Family Law Act (1975) provides that family dispute resolution practitioners (FDRPs) may disclose and report information gained in their role if they feel it is necessary to protect a child, to prevent or lessen a serious and imminent threat to the life and health of a person or the property of a person, or to report the commission or prevent the likely commission of an offence involving violence or the threat of violence to a person or the intentional damage to property. In addition mediators or FDRPs may be required to issue a certificate about the outcome of family dispute resolution (FDR). Here the FDRP is required to complete the most relevant category of the five available categories on the certificate, namely that: 1. one party did not attend FDR; 2. the FDRP concluded that the case was not suitable for FDR; 3. whilst no agreement was concluded, all parties made a genuine effort to resolve the dispute; 4. all parties attended but one or both did not make a genuine effort to resolve the issues; and 5. although FDR was initiated, it was not appropriate to continue. These certificates are necessary before a court application relating to a child can be filed: Family Law Act 1975.

Client records 5.84 Mediators have different practices regarding client records and notes they have taken during the mediation. Many mediators have a practice of destroying their notes and telling parties from the beginning

that they will do so in order to heighten the sense of confidence and security throughout the process. The NMAS Practice Standards acknowledge this practice and emphasise the importance of maintaining confidentiality in relation to the disposal of any such records. At the same time the Standards recognise that there may be circumstances in which mediators will want to retain copies of certain documentation. The NMAS Practice Standards s 6(8) provides that: [page 154]

The mediator should maintain confidentiality in the storage and disposal of client records and must ensure that office and administrative staff maintain such confidentiality. Overall, mediators are not required to retain documents relating to a dispute although they may retain any written agreement to enter into the mediation process and any written agreement as to outcomes. Some mediators may also choose to retain notes relating to the content of the dispute particularly where duty-of-care or duty-to-warn issues are identified.

Debriefing 5.85 Debriefing involves a review and reflection on a mediation which has recently been conducted. It can take place between co-mediators, between a mediator and supervisor, or by a mediator on his or her own. In some situations mediation clients and their advisers are asked to complete evaluation forms immediately after the mediation has concluded. Debriefing serves several purposes for mediators: It allows them to deal with their own emotional needs, particularly where there has been anger, sadness or other emotions in the mediation session. It encourages mindfulness as a basis for improving mediator performance: see 3.48. It assists with supervision, accountability and quality control and with responding to complaints from consumers of mediation services.

It offers mediators a form of support. It helps to build good practice. It provides statistical information for survey use. 5.86 Successful debriefing is a sophisticated art and requires training and resources. Some of the requirements for successful debriefing are: It needs to be structured, preferably in the form of a written report. It should have an appropriately specific focus and not be overgeneralised. It requires diplomacy in giving and self-confidence in receiving criticism and feedback. It works best in co-mediation where a mediator targets in advance those matters on which feedback is desired: see 9.36. It needs to respect the confidentiality of all involved. The NMAS address the issue of debriefing as follows. The Approval Standards require a written debrief as an essential part of the mediator accreditation assessment process: s 5(1)(e). In addition recognised mediator accredition bodies are required to offer their member mediators services such as ongoing opportunities for debriefing and mentoring: s 3(5)(b). The importance of debriefing is also highlighted in the Practice Standards. In [page 155] terms of maintaining competency levels, the Practice Standards state that mediators should seek regular debriefing, presumably with an outside party: s 7(1). De-identifying the content of mediation agreements may be used for mediator debriefing purposes with the consent of the parties: s 6(7). In addition to debriefing, there are other forms of reflective practice, considered in Chapter 12, especially 12.14.

Shepherding

5.87 Some mediators follow up on mediation agreements and supervise aspects of their implementation. This is sometimes referred to as shepherding. This may include monitoring a mediated agreement’s progression up to the making of consent orders by a relevant tribunal or court. In practical terms this is usually done through a series of emails or telephone calls. It may also involve offering mediation assistance where parties are having difficulty in relation to implementation of the agreement.

Post-mediation calls for mediator to testify 5.88 In Chapter 2 reference was made to the mediator’s obligations in relation to confidentiality and privilege and the need to explain this to the parties during intake and in preliminary conferences. These obligations generally prevent the mediator from producing evidence or testifying in subsequent proceedings; however, it is conceiveable that a mediator may nevertheless be subpoenaed or otherwise notified to give evidence about the mediation. The NMAS Practice Standards s 6(5) deals with this situation as follows: If subpoenaed, or otherwise notified to testify or to produce documents, the mediator should attempt to inform the participants as soon as reasonably practicable. The mediator should not give evidence without an order of the Court or Tribunal if the mediator reasonably believes doing so would violate an obligation of confidentiality to the participants. The mediator may include indemnification provisions in relation to costs incurred (see Section 3(2)(f)).

Thus the first duty of mediators is to notify the parties as soon as practicable. Further if mediators reasonably believe that giving evidence would breach their confidentiality obligations, then they shall not do so without a relevant court order. Strictly speaking this provision only applies to NMAS accredited mediators; however, it offers sound advice for mediators generally. For more on confidentiality and privilege, and mediators’ obligations regarding them, see Boulle (2011: 669–713).

Variations in the Process

5.89 There are numerous potential variations in the conventional mediation process described in this chapter. The most important of the variations, multiple meetings and shuttle mediation, are dealt with in 9.2 and 9.7. [page 156]

Mediator Learnings 5.90 This chapter raises the following points of particular significance for mediators: 1. There is an internal logic to the stages and sequence of the mediation process. Mediators, as the experts in dispute resolution, should guide parties through this process so they can derive its benefits. 2. Despite the logic of the process, there are many points at which mediators have important discretions to exercise and on which they can consult parties and advisers on the design of the system. 3. Transparency is vital in conducting the process and mediators should provide signposts along the route. Even where clients have participated in the system previously, mediators should explain to parties and lawyers how they will conduct a mediation. 4. Consider co-mediation. As an entry level mediator, you may wish to seek a more experienced mediator to act as a co-mediator and mentor. Conversely, as an experienced mediator, there is much to be gained from debriefing with both experienced and newly minted mediators.

Tasks for New Mediators 5.91 Find (or appoint) a volunteer and ask them to role-play a party in a mediation who has no prior knowledge of the process. Make an MOS to them (use some poetic licence to pretend that there are two

persons present). Respond to their questions or concerns. After making the MOS ask them to give you feedback on what you did well and what you could have done differently. Evaluate your own performance against the standards found in this chapter. 5.92 With the same volunteer as before, practise the transition explanations for the separate meetings. In light of this experience modify the explanations for your use in practice. 5.93 Watch a DVD of a real or simulated mediation and identify differences in the structure of that process compared with what is described here. Write out possible reasons for why the structures differ.

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CHAPTER 6

Assisting the Communication Dynamics Introduction Communication and Culture When Communication Counts Basic Issues in Communication Communication Style and Terminology Non-verbal Communication in Mediation Effective Listening Reframing Appropriate Questioning Reiterating Paraphrasing Summarising Transitioning Note-taking Exchange of Information Assigning Tasks Drafting Mediator Learnings Tasks for New Mediators

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Introduction 6.1 An important function of mediators is to provide an environment in which good communication can take place. Parties in conflict tend to communicate poorly and disputes can themselves be the result of shoddy communication. The goal of good communication is mutual understanding, that is a meeting of the minds of those engaged in communicating with one another. This chapter deals with mediators’ roles in assisting parties to communicate appropriately. The skills referred to here are not peculiar to mediating. Many prospective mediators have good communication skills from past education and experience which they need to adapt to the requirements of mediation. Some do not have those skills and need to begin with the basics. 6.2 There are four broad responsibilities for mediators in relation to their communication roles: 1. To be good communicators and model appropriate communication practices, with words as their main but not their only tool. 2. To intervene in the parties’ communications to make them more accurate, explicit, comprehensible and appropriate. 3. To ‘educate’ the parties in effective communication techniques. 4. To foster an environment which encourages effective communication among all participants. Communication is an important ingredient in all forms of professional practice and is also a major discipline in its own right. A text on mediation skills can only deal with some aspects of communication particularly relevant to that practice. Dedicated students of communication should consult the specialised literature on this subject for more theoretical and practical insights than can be provided here.

Communication and Culture

6.3 In this section reference is made to the factor of culture and its significance for communication in a mediation context. Styles and methods of communication are affected by many ‘cultural’ factors such as class, gender, ethnicity, education and emotion. Even the meaning of simple words or phrases can be different for people from middle class or working class backgrounds, or across genders, for example concepts such as ‘to negotiate’, ‘matter of principle’, ‘compromise’, ‘agreement’ and ‘commitment’. 6.4 Where people from different cultures also speak different languages, attention is often focused on dealing with the linguistic differences and other cultural aspects are neglected. While it is possible to translate the spoken word from one language to another, this will not necessarily convey the intended meaning across cultures. Language may translate words but not meanings because, particularly across cultures, communication consists of more than [page 159] words alone. Where cultural factors are less visible, and even unconscious, then aspects of behaviour or, as suggested below, our ‘neuro-wiring’, may lead to serious breakdowns in understanding as each side judges and evaluates the other in terms of their own cultural realities. See on mediation and culture Boulle (2011: 101-7). 6.5 The following extract on the meaning of culture is taken from LeBaron in Alexander (2010: 105). Culture is the unwritten, unspoken set of understandings that animate and inform group consciousness. It is the glue that binds, offering belonging and meaning beyond individuality. Culture sweeps up history, belief structures, narratives about ‘us’ and ‘them’, traditions, customs, myths and metaphors into dynamic cleavages. It satisfies deep needs of belonging while often — advertently or inadvertently — excluding those outside its boundaries. It is the grammar that gives speech its form; it is the river running beneath the surface that animates life.

6.6 Findings from neuro-science indicate that, contrary to previous thinking, the human brain is extremely plastic in the sense that it has the ability to continually change and reshape itself: Doidge (2008). Research further suggests that culture continues to shape our brain

throughout our lives and influences how we see the world. How it does this is set out in the following paragraphs. Culture involves a series of activities and interactions which cultivate and develop the mind. Thus, as our brain produces culture, the same culture helps to reshape our brain. The relationship between the brain and culture is therefore a reciprocal one. This entails that people of different cultures do not just interpret experiences and events differently due to external cultural norms — their brains actually process the same experiences differently. For example research shows that eastern cultures perceive reality holistically, viewing objects as they are related to one other or in a context, whereas western cultures tend to perceive them in isolation. These findings are consistent with cultural theory which suggests that members of eastern cultures are high-context (or wide-angle lens) communicators and negotiators, while those from western cultures are low-context (or narrow-angle lens) communicators with a sharper focus. Culture influences not only perception and communication but also learning. With the exception of those brought up bi-culturally who have the ability to alternate between ways of perception, cultural adaption is a challenge — even for a plastic brain. This is because culture permeates so much of how we process and respond to the world that it can be difficult to distinguish cultural from biological behaviour. In other words culture is part of how people perceive, identify, approach and communicate about conflict. Aspects of culture are inextricably bound up in conflict and inform approaches to negotiation and mediation. [page 160] 6.7 Writers such as Hofstede use classification schemas to describe and analyse culture. Schemas can take a large amount of complex information and render it understandable and communicable. They assist in developing a map of possibilities for effective mediator interventions, as well as warning of potential challenges ahead.

However, culture is not capable of precise analysis as it is always more than the sum of its parts. Moreover, there can be just as much diversity within one cultural group as among different cultural groups. Thus schemas, being based on generalisations and stereotypes, are not effective predictors of individual behaviour. From a mediator’s perspective cultural classification schemas offer useful starting-points from which to understand cultural differences and develop cultural fluency attuned to specific parties in a mediation.Table 6.1 offers an example of a cultural classification schema drawing on the work of Hampden-Turner and Trompenaars (1998), Hofstede (2011) and LeBaron (2003). [page 161]

[page 162]

[page 163] This book is based on the dominant Australian culture which the table indicates is characterised by low power distance, low-context communication style, low uncertainty avoidance (or high tolerance of uncertainty and ambiguity) and a high level of individuality. Overall this culture is more masculine than feminine, although this is not as extreme as in some countries. Australians are said to be not particularly ‘touchy’ in a spatial context sense and the dominant culture operates on monochronic time. In this context, mediators need to set clear time frames for mediation meetings, strive to get parties to say what they mean and be themselves explicit, direct and unambiguous. Mediators should encourage parties to focus on their individual interests and rights and to treat each other as equals in the mediation room. While this may be appropriate for the dominant Australian culture, it may be inappropriate for others such as Australian indigenous cultures and some Australian-Asian cultures where indirectness, ambiguity and context are more relevant. Mediators must therefore develop the fluency to move about and, when necessary, beyond the dimensions of cultural classification schemas such as the one presented in Table 6.1. Case illustration: When yes does not mean yes

In a land use dispute regarding the use of indigenous country for extracting gold by open-pit mining, Manic Miners Company was represented by its commercial manager Tom, an Australian of English heritage, and Nalong represented the relevant indigenous group. During one of the mediation meetings Tom explained in detail why he considered the nature of the native title claim to be exaggerated, namely that from his perspective Nalong’s people seemed to use only a small area in one corner of the land for ceremonial purposes. Throughout Tom’s statement Nalong listened attentively, albeit with his eyes cast downward; he nodded his head continuously and made occasional affirmative noises. As soon as Nalong began to speak it became apparent that he did not accept any of Tom’s assertions, and Tom was outraged. During a separate meeting Tom vented his anger to the mediator and asked how the other party could be so inconsistent. The mediator explained the cross-cultural misunderstanding, namely that for an indigenous Australian attending and nodding indicated that he was listening but not that he was giving his assent. As indicated previously, the avoidance of direct eye contact as a sign of respect to the speaker is an aspect of indigenous Australian culture. Bennett (1993) suggests that there are six stages of development towards tolerance and understanding of cultural differences: 1. Denial — people are ignorant of another’s culture or believe their own culture is a template for the situation in question. Sometimes they don’t even recognise that cultural differences exist. 2. Defence — people believe their own culture or way of doing things is superior and other cultures are less suitable, or even inferior. [page 164] 3. Minimisation — people lump everyone together by assuming all

people are much the same and any cultural differences are trivial. 4. Acceptance — people recognise that others have their own cultural ways of seeing things. 5. Adaption — people make adjustments along cultural lines to their understanding of a situation. 6. Integration — people change their thinking and behaviour, depending on the relevant cultural context. In the fact scenario above, the mediator was assisting one party to accept the different cultural behaviour, to adapt their analysis of it and to assimilate that understanding in order to formulate a response in the mediation. Sometimes parties will share a culture that differs from that of the mediator. The following case illustration deals with this type of situation. Adapted from the work of Michelle LeBaron (2010: 114), it shows how mediators can use cultural awareness to adapt their interventions. Case illustration: Mediators’ need for cultural awareness In Australia two Vietnamese brothers were the heirs of a successful father who had left several significant assets. They had worked hard with comediators to make decisions about how property and securities should be allocated between them. After several hours, one asset remained, a piece of real property. Neither brother was willing to cede it to the other. Though the mediators worked with them to find different ways of allocating its material value between them, nothing worked. They were at an impasse. The progress they had made in relation to the other assets could be jeopardised if litigation was pursued to address this remaining asset. The mediators took a break and reflected on the cultural common sense of the two parties. What did they value? How did they perceive the legacy and their father’s name being carried on through their lives? What roles did face and honour play in the impasse? The mediators returned from their private session and explored with the brothers the possibility of creating a scholarship

in their father’s name funded by the proceeds of the asset. Both brothers agreed. Neither lost face by surrendering the final asset to the other. The father’s honour was preserved and enhanced, and his legacy of contribution continued. A shift occurred in which the brothers came together inside a circle of closure in their shared desire to honour their father’s name. A material resolution accompanied the symbolic shift, and relations between the brothers improved. Culturally fluent mediators may sometimes move from a standard facilitative model when circumstances require flexibility. Here LeBaron explains that the mediators took the step of proposing a possible way of handling an asset once they realised that face-saving concerns may be blocking the parties from making similar suggestions themselves. They knew that Vietnamese cultural traditions include the image of mediator as a wise [page 165] elder or adviser and assumed this archetype when making the scholarship suggestion. The mediators were also aware that education is an important value in Vietnamese culture, so they hoped that associating the father’s name with a scholarship might be an attractive idea to both brothers. The NMAS Practice Standards highlight the importance of cultural awareness in various aspects of mediation including: intake and the appropriateness of mediation: s 3(3)(a); consideration of culturally appropriate variations of the mediation process: ss 3(3)(a) and 5(6); procedural fairness and reality testing of proposed settlement agreements: s 9(7). In addition mediators are required to possess knowledge of ‘crosscultural issues in mediation and dispute resolution’: s 7(a)(iv).

The NMAS Approval Standards recognise that specialised skills relating to culture and language may be required for those mediating in particular communities: s 5(3)(a).

When Communication Counts 6.8 Communication assistance by mediators is necessary during all mediation stages. Where party communication is unclear, negative or overemotional, then a mediator’s intervention is required. Where communications break down entirely the mediator tries to keep the parties going, for example by relying on the advisers or using informal channels. However, in some phases of mediation the mediator’s communication function is of particular significance because of the peculiar requirements of these stages: During the introductory rituals, mediator’s opening (MOS), party statements and defining of the agenda — here it is important for a mediator to connect with parties through communication which they understand, to listen to the parties, to assure them that they have been heard, and to use appropriate and precise terms in defining the issues. During the separate meetings — mediators may use communication suitable for reassuring the parties, for forming alliances with them, and for encouraging them to settle by acting as agents of reality. During the closing stages — these require communication that ensures comprehensiveness in the agreement, accuracy in its drafting, a positive tone to see things through to conclusion and a congratulatory note without appearing patronising. 6.9 Despite these critical junctures, effective communication, as pointed out, is important at all stages of mediation. All dispute resolution processes rely on accurate and adequate information being shared and where the mediator enhances communication it can serve the purpose of obtaining and making best use of that information. However, this is not a narrow instrumental role.

[page 166] Communication is enhanced as much by context as it is by a good reframe or appropriate question. The other mediator skills required in building the foundations for mediation and conducting the process effectively are all significant in achieving effective communication. The NMAS Practice Standards s 7(3) identifies communication skills and knowledge as major competencies. Specifically mediators are to possess knowledge of ‘communication patterns in conflict and negotiation situations’: s 7(3)(a)(iv). In addition ‘appropriate communication skills, including listening, questioning, reflecting and summarising’ are required: s 7(3)(b)(iv).

Basic Issues in Communication 6.10 The beginners’ guide to communication would inform us that human communication involves (at least) two parties: a ‘sender’ and a ‘receiver’. The sender wishes to transmit a message to the receiver and sends it by way of verbal, vocal and visual elements. The receiver takes delivery of the message and the communication is complete. Unfortunately it is not quite as simple as beginners’ guides like to suggest. 6.11 The passing of a message from one person to another is not as mechanical as the passing of a baton from one relay runner to the next. This is because both the sender and receiver are affected in the communication process by a range of factors: the social context of the communication, the respective emotions of the parties, cultural expectations, past experiences, and assumptions and prejudices. These are all subjective and highly variable factors which can differ significantly from one person to the other, even where they are from the same cultural background. This means that the sender will ‘encode’ his or her message; that is the words used, the vocal effects and the body language will be based on his or her perceptions of the world. Likewise the receiver will ‘decode’ the message in terms of his or her perceptions and frames of reference. Because of the subjective

nature of both the encoding and decoding functions, there may be substantial differences between what the sender thought he or she was communicating and what the receiver thought was being communicated. In other words the intention of the message being communicated does not always match its impact on the receiver. Hence the need for advanced guides to communication. 6.12 In reality communication seldom consists of a single message from one person to another. Particularly in the mediation context it involves a series of ongoing messages among three or more people. This makes things both easier and more complex at the same time. It is easier because the receiver of a message usually responds to it and this response can help to clarify both sides’ perceptions. Receivers can give feedback to the sender through verbal, vocal or visual means. Thus the receiver may ask a question which gives the sender an opportunity to resend the message more clearly, [page 167] more emphatically or more accurately than before. Moreover, the sender may detect from the body language of the receiver that the message has not been understood, or has been misunderstood, and immediately clarify it. 6.13 At the same time things are more complex in the mediation context because, as in any other conversation, all parties continually swap the roles of sender and receiver. During these exchanges many different facts, ideas, emotions and attitudes are being exchanged and if the situation is tense and the communication fast and furious the encoding of each party may be clumsy and the decoding may be defective. Thus where a receiver is intently focused on the words being used by the sender, he or she might pick up on the factual information in the message but overlook attitudes and feelings accompanying it. Likewise where a sender uses aggressive body language this may cause the receiver to overlook important factual information being conveyed verbally. 6.14 In an attempt to systemise the complexity of interpersonal

communication Schulz von Thun (2005) has identified four aspects or meanings to every message. 1. The factual meaning: what do the words in the message convey in terms of their factual, objective and rational meaning? 2. The self-disclosure meaning: what does the message reveal about the sender himself or herself? 3. The relationship meaning: what does the message say about how the sender views the receiver and the relationship between them both? 4. The request: what does the sender want the receiver to do? Let’s consider an example of the four meanings in one message based on an interaction between two parties engaged in a neighbourhood dispute over barking dogs, where one neighbour says to the other, ‘Ever since you moved into the neighbourhood a year ago your dogs have been barking every night, sometimes for hours on end.’ 1. Factual meaning:Your dogs bark at night and sometimes for several hours. 2. Self-disclosure: I cannot sleep at night and have not slept for weeks because of the barking dogs. This is really stressful. 3. Relationship meaning: I find your attitude and behaviour inconsiderate and disrespectful to me and the entire neighbourhood. 4. Request: You need to silence those dogs and I don’t care how you do it. In conflict situations it is common for those on the receiving end of a communication to hear one aspect of the message only (generally one that fuels the conflict) and completely miss the other meanings. For example in the above scenario the neighbour with the dogs might only hear the relationship meaning, especially if relations between the two had been less than warm previously or had not had a chance to develop.

[page 168] The four-message model is useful in helping mediators know where to look for the meanings that may have gone unnoticed by the receiver. Mediators can use skills such as reframing (see 6.39-6.45) to identify these aspects of the message and put them on the mediation table. This model is discussed in more detail in Alexander and Howieson (2010), Ch 6. 6.15 Yet another layer of complexity is added to the communication dynamics by the fact that senders are not always explicit about all four meanings in their messages. Egan (2010: 68) points out that most clients of the helping professions are willing to talk about their experiences, and are less willing to directly offer information on their behaviours and feelings. Experiences are easier to discuss because they usually involve something which has happened to the speaker and they entail no acceptance of responsibility. For example Tammy is a patient suffering from a sports-related injury and has just complained about poor treatment and advice from Brendan the physiotherapist. To promote resolution of the dispute in mediation, communication is required on: behaviour, that is what Brendan and Tammy do or refrain from doing, for example in relation to keeping appointments, using consultation sessions appropriately, administering relevant treatment during and after consultations, providing follow-up advice, ensuring the patient is not suffering from undue pain, monitoring the progression of the healing; and affect, that is feelings and emotions that arise from or are associated with experiences and behaviour, for example Tammy’s frustration about her injury or anger over her treatment. However, communication on behaviour expressed through non-verbal means (see indirectly through the context in which words high-context communication. Here mediators

and feelings is often 6.20-6.31) as well as are uttered: see 6.6 on will use active listening

and reframing (see 6.32 and 6.39) skills to draw out the nonarticulated messages of both parties so that they can be acknowledged and addressed. 6.16 In facilitating parties’ communication, mediators should be attentive to the common tendency for people to talk about the facts and others’ motives as though there is only one version of ‘what happened’. A mediator might instruct parties at an early stage of the mediation that they cannot claim to talk about ‘what happened’ but only about ‘your memory of events’. This builds in a qualification to whatever they might say. Likewise a mediator might instruct them not to talk about what they perceive the other party’s motives to be, but only about ‘your own motives and internal feelings’ relating to past events. 6.17 Professional frameworks also affect communication, whether lawyers, accountants or psychologists are involved. Thus lawyers use accepted and well-understood terms to communicate in a kind of shorthand which is [page 169] highly accurate and appropriate when they converse with one another. For example lawyers in a personal injury mediation may happily swap terms such as ‘without prejudice’, ‘liability and quantum’, ‘special damages’, ‘future economic loss’ and ‘Fox v Wood component’ with ease and understanding. Unfortunately these terms add another layer of complexity to the involvement of non-lawyers for whom legalese is unintelligible at best and alienating at worst. Hence the need for an outside party to assist with many facets of communication. Mediators should also be aware of their own in-house jargon such as ‘BATNA’, ‘caucus’, ‘interest-based’ and ‘conditional-linked bargaining’ which should be used with caution in front of clients.

Communication Style and Terminology 6.18 Mediators need to develop an appropriate communication style

and use of terminology. The style is an art, the terminology a science. As regards style much will depend on culture and context. In most Australian contexts mediators need to speak fluently, in a quiet and confident manner, and to give complete and specific messages. They should use plain and intelligible words and avoid legal jargon and technical terms where these would not be understood by the parties they are assisting. In other words they should speak the parties’ language (or languages). As regards terminology some words and phrases are redolent of conflict, contestation and struggle and are best avoided by mediators. Others could be seen as threatening or challenging to particular parties. There is much emphasis in mediation manuals on the need for ‘reframing’ (see 6.39-6.45) parties’ inappropriate language to words and phrases which are positive instead of negative, constructive instead of destructive, and problem-solving rather than problemreinforcing. However, instead of only being reactive through reframing, mediators should pro-actively use appropriate language as a model for their clients.Table 6.2 offers some suggestions for mediator framing. Table 6.2: Framing the discourse Mediators might choose to say Matter/situation/differences/circumstances Discussions Current hopes/expectations Other party or the person’s name Agree to Give us your understanding of

Instead of saying Dispute/conflict/problems Negotiations Claims/demands Opponent/defendant/respondent Concede Tell us the facts [page 170]

Ways of dealing with

Compromises/concessions

Make decisions/choices So this is important for you Ways of addressing/ways of compensating your loss Important issue for you/a priority for you I’m having trouble understanding you

Negotiate a settlement It’s a matter of principle for you Damages/award/penalty Fundamental to your claim I don’t believe you

6.19 These and other positive terms are second nature to veteran mediators and are used from the earliest stages of mediation. The use of positive terms is designed to get parties to think about the dispute constructively and in doing so attempts to ‘reframe’ their perceptions. Where the positive term is adopted by the parties it can open them up to more constructive approaches to problem-solving. Mediators also use a number of constructive ‘weasel’ words such as ‘reasonable’, ‘satisfactory’, ‘appropriate’ and ‘productive’. These again lend a positive tone to the discussions. Where a negative term is used by parties, the mediator reframes to the positive replacement term. (Reframing is dealt with in 6.39-6.45.)

Non-verbal Communication in Mediation 6.20 Verbal communication refers to the words spoken in a mediation or other interaction and is only one aspect of communication. Nonverbal communication is another. Non-verbal communication consists of those aspects of communication which can be seen by the other party, the visuals, and other forms of non-verbal communication which can be heard, namely vocals.

Body language 6.21 Visuals refer to all aspects of communication which are observed, as opposed to heard, by the receiver and which convey messages to him or her. Body language is the most prominent form of

visual communication. It involves all aspects of bodily appearance and movement which convey attitudes, feelings, emotions and other dimensions of communication. In practical terms it could include the sender’s clothing, posture, body and limb movements, hand gestures, facial expressions, eye motions, and physiological responses such as blushing and quickened breathing. The face and eyes are often portrayed as the most important conveyers of body language but micro-signals in these areas are not always easy to read and interpret. [page 171] While parties can fake body language to some degree, this is not always easy, for example in relation to eye signals, tone of voice, blushing or shortness of breath. Children in particular find it difficult to conceal body language and their crossed legs or averted eyes may betray the apparent innocence of their spoken words. Unlike verbal communication body language never stops and when a person is verbally silent it remains the only way in which they are communicating. 6.22 Some generalised features of body language in western societies are: Open limb positions — receptivity towards what is being said. Crossed or folded limbs — defensiveness towards what is being said. Forward-leaning body posture — attentiveness to speaker. Backward-leaning body posture — indifference to speaker. Open hands — plain dealing and honesty. Closed fists, pointed fingers — aggression, threatening attitude. Direct eye contact — sincerity, openness, honest dealing. Averted gaze, avoidance of eye contact — deceit, guilt, shame. Body language can either confirm or contradict what is being said verbally, or it might simply confuse. As mentioned below, when it comes to interpreting body language it is dangerous to put too much weight on a single factor.

Folberg and Taylor (1984: 117) refer to findings that people in the helping professions often misinterpret non-verbal messages implicit in a series of photographs while untrained people pick them correctly. Moreover, lawyers have highly trained listening skills but are not wellversed in observing behaviour and are among the professional offenders. 6.23 There are numerous specialist books on body language. In Australia a long-term favourite is by Alan Pease (2004: 10). Pease makes the following observations: More than 65 per cent of a message is conveyed non-verbally. Non-verbal communication has a significance in communication five times that of verbal communication. In general non-verbal communication conveys interpersonal attitudes while verbal communication imparts information. Some non-verbal signals are learned and some are inborn. A single gesture may have many meanings and should be interpreted in the context of associated verbal and non-verbal communication, the person’s culture and the social environment in which it takes place. 6.24 Visuals also refers to messages received from the broader environment such as the size of an office, the shape of a table, the size and height of chairs, seating arrangements, spatial configurations, lighting and the like. These factors can convey power, strength, status, domination or equality [page 172] and other such messages more emphatically and unequivocally than words. Without any spoken words, body language or other express communication, a whole mood and atmosphere can be conveyed by an environment and surroundings. The mediator is usually responsible for the mediation environment: see 4.36.

Vocals

6.25 Vocal communication refers to the many oral messages which can be sent without using words and language. It is sometimes referred to as paralanguage and includes volume, pitch, pace, tone, inflection, emphasis, intonation, rhythm, resonance and silence. One can add laughter, sighs, gestures and screams, although the last are not encountered in mediators’ daily rounds. All the vocals disclose emotion, attitudes and states of mind which are not conveyed through verbal communication. 6.26 As the vocals are auditory signals (except the silence part), they are difficult to demonstrate through written words in a textbook. However, the following illustration shows the different meanings which the same five words can have, depending on where the emphasis is placed by the speaker: Australian mediation books are awesome (but not mediation books from other countries). Australian mediation books are awesome (but not Australian books on meditation and medication). Australian mediation books are awesome (but not Australian mediation DVDs or workshop materials). Australian mediation books are awesome (I had my doubts but now that I’ve read them …). Australian mediation books are awesome (they are unbelievably good, top class, of the highest quality). As with body language, some forms of vocal communication are difficult to disguise. Where the vocal messages contradict the spoken words, listeners tend to be influenced more by the former. This can be demonstrated in relation to sarcasm where emphasis and tone can give spoken words a meaning diametrically opposed to their literal meaning. Thus if you say the above sentence with the relevant emphasis and tone on both syllables of ‘awesome’ it can become a contemptuous rejection of the books’ merits. There are other more subtle deviations from literal verbal meaning that mediators can detect from vocal communication.

The mediator’s role in relation to visuals and

vocals 6.27 One of a mediator’s functions is to observe and interpret vocal messages and body language, though much micro-language in the face and eyes is not easy to read. From their observations mediators need to make inferences, for example that blushing or crossing of the limbs indicates anxiety or defensiveness, and plan their next intervention accordingly. This [page 173] is part of the mediator’s hypothesis development function referred to in Chapter 4. However, observing behaviour and inferring meaning are separate activities and it is conceivable to accurately observe but assign a mistaken meaning to behaviours. Mediators therefore need to make tentative interpretations of behaviour and check to see if they are correct, not reading too much into a single cue. A sudden bodily movement by a client may be caused as much by discomfort, habit or a medical condition as by anger or boredom. When an elderly client frowns at a document, he or she might be upset at what the paper says or be unable to see clearly without glasses. Where behavioural signals occur in clusters, for example dilation of the pupils, heavier breathing and distressed hand movements, they are easier for mediators to diagnose tentatively than where they are isolated occurrences. 6.28 Non-verbal signals are most significant where they are incongruent with the verbal message, for example where the words signify assent but the crossed legs or nervous eyes suggest resistance, or where the words suggest honesty but the voice’s higher pitch suggests an untruth. Mediators can use separate meetings to raise and deal with incongruent factors such as these. They can check whether their understanding of a party’s signals is correct and whether the other side might be aware of the different meanings in the

message being sent.

The mediator’s own non-verbal communication 6.29 As part of a mindful approach to their work (see 3.48), mediators need to be attentive to their own body language and vocals which could reveal bias, impatience or tedium. Some actions will be generally appropriate in mediation, for example open body positions, direct eye contact and congruent facial expressions. Others will usually be inappropriate, for example fidgeting or perusing documents when parties are making their initial statements or frowning when they are proclaiming the veracity of their version of events. Yet others require the mediator to make judgments and adaptations for particular circumstances, for example choice of clothing, handshakes, touching and facial expressions. Some long-held habits which could disconcert or mislead parties may be unknown to mediators and the use of videotapes of actual or simulated mediations provides a useful insight into reality. That said, some long-held habits are notoriously difficult for even earnest mediators to change. Just as contradictions between a party’s verbal and non-verbal language is of significance for mediators, so should mediators strive to achieve consistency in their own verbal, vocal and visual communication. However, some ‘censorship’ of body language might be required; for example where a mediator feels annoyance or disbelief he or she might have to control facial expressions so as not to display this inner reality. ‘Censorship’ can develop into manipulation where mediators deliberately provide non-verbal signals [page 174] which they think might be appropriate, for example a shake of the head to indicate disagreement with a client’s proposal.

6.30 Mediators also need to be attentive to their own physiological reactions, for example tensing of muscles or clenching of fists. By being aware of these mediators can control their bodily reactions and prevent communicating anxiety, disapproval or anger, as the case may be. Experienced mediators can also use body language as a form of constructive intervention, for example to guide the conversation between parties with simple hand directions to ensure they are speaking to each other and not to the mediator. Appearance is an important issue for mediators, though not entirely within their control. Appearance creates initial impressions which are difficult to change. Clothing can be changed but height cannot. Some male commercial mediators remove their jackets at the earliest opportunity to convey the message, without articulating it, that the process is an informal one. However, few would remove the tie as this might convey too little formality for commercial clients — such is the power of our artefacts. Likewise the initial handshake can convey domination (crushed phalanxes), weakness (wet fish) or strength (firm grip). 6.31 How mediators arrange the physical space is also significant. Reference was made in Chapter 4 to a number of variations in relation to how people are seated in mediation. Physical arrangements should always respect personal space. In professional relationships there is usually more physical distance between persons than in personal relationships. Where the mediator knows a lawyer personally it might be appropriate to maintain a professional distance when the clients are present.

Effective Listening 6.32 In the kingdom of Camelot mediation would not be necessary as parties would listen to each other effectively. They would hear the messages which are ‘on the lines’, usually factual content, and they would hear the messages which are ‘between the lines’, usually emotions, feelings, concerns, interests and underlying requests. Mediators would not be required to remind parties to listen to each other to achieve proper understanding and acknowledgment. Outside

Camelot, however, mediators are required for these purposes. Most of a mediator’s time should be spent listening to the parties and effective listening skills are major attributes for mediators. They must listen effectively before they can get the parties to listen to each other. Effective listening involves more than hearing spoken words. It involves paying attention to and properly understanding the various meanings of messages by grasping facts and information analytically and picking up on their emotional content and the broad patterns and themes which they convey. [page 175]

Causes of ineffective listening 6.33 Listening may prove to be ineffective due to the following factors: The speaker — inaudibility, annoying mannerisms, tone of voice, speed of delivery, presentation, contentious content, interruptions by others. The listener — inattention, discomfort, fatigue, focus on responding to speaker, ignorance of subject-matter, psychological deafness, emotional involvement, lack of comprehension, inability to absorb, judgmental attitude. Environmental factors — external noise, bad lighting, poor acoustics, uncomfortable seating, lack of temperature control, outside interruptions.

Listening effectively 6.34 There is considerable hard work involved in listening effectively. It is not just a passive exercise, hence the use of the phrase ‘active listening’. The listener must be physically attentive, concentrate on and encourage the speaker, display an attitude of interest and concern, be non-judgmental, not be preoccupied with responding to or

questioning the speaker, and not be distracted by ‘non-relevant’ matters. The effective listener is concentrating not only on words and sentences but on patterns of thought, the organisation of ideas and the various themes implicit in a speaker’s communication. This requires considerable effort. ‘Pay attention while I speak’ is not just a classroom cliché but an important principle of listening effectively. Active listening is important for mediators in relation to a number of other functions such as summarising, defining the issues and making the best use for the negotiations of any valuable communications by the parties.

Elements of active listening 6.35 There are three elements to active listening: 1. Attending skills: being with the client, physically and psychologically, making them feel important and trusting by use of physical attention, displays of interest, appropriate body movements, encouraging noises (‘I see …’, ‘Uhuh …’, ‘Yes …’, ‘Oh really?’). Gerard Egan (2010: 134) refers to the macro-skills of listening in terms of the acronym SOLER: Squarely face the client to show involvement. Adopt an Open posture, literally and metaphorically. Lean towards the client at times. Maintain Eye contact most of the time. Relax, be natural in these behaviours. [page 176] 2. Following skills: indicating that the listener is following the speaker by providing cues, not interrupting, asking clarifying questions, taking notes, summarising and refraining from giving advice. 3. Reflecting skills: giving feedback to the speaker on the listener’s

understanding of their meaning with reference to factual and relational aspects of the message, as revealed through the fourmessage model (see 6.14); identifying and acknowledging facts, feelings and interests; summarising facts, feelings and interests; asking empathic questions. Brandon and Robertson (2007: 1512) suggest the following verbal cues as ways to initiate reflection: ‘You sound/feel …’ ‘It seems …’ ‘You believe …’ ‘You sensed that …’ ‘What you are saying is …’ ‘From where you stand …’ ‘Your point is …’ ‘You consider …’ ‘It sounded like …’ ‘The main concern for you is …’ ‘You thought that …’ 6.36 The speaker’s frame of reference is always important in relation to listening. A listener needs to try and comprehend this frame of reference and to look for themes and patterns in the speaker’s speech. Mediators also need to be aware of their own frames of reference. In some situations a mediator needs to modify the speaker’s frame of reference through the device of reframing: see 6.39-6.45. Reading body language and vocal communication is an important element in active listening. As referred to above, non-verbal communication can confirm the verbal message, contradict it or scramble it. As a general approach mediators should aim to identify, clarify and acknowledge the messages in non-verbal behaviours. Much will depend on context.

Detracting from effective listening 6.37 Some of the natural impulses which detract from effective listening by the mediator include:

Focusing on facts and information and ignoring the feeling and emotions: ‘So you just want $194 482.73 as compensation?’ Asking too many questions, in particular closed, leading or crossexamining questions: ‘But didn’t you tell me earlier that you had not done specialist training?’ Being judgmental and moralising: ‘You’re doing okay, given your negligence …’; ‘Everyone has to take the ups with the downs.’ Reassuring: ‘Don’t fret now; it will be all right.’ Advising: ‘Well that aspect of the problem is easily fixed with an instalment plan.’ [page 177] Diagnosing reasons for parties’ behaviour: ‘You were obviously in denial when you refused help.’ Lapsing into clichés: ‘I hear what you’re saying …’; ‘I know how you must have felt …’. Slipping into sympathy; becoming hooked into the other’s emotions, values or judgments: ‘So you felt you were entitled to some selfhelp against the bastard?’ Engaging in self-exposure: ‘Two years ago exactly the same thing happened to me …’. Interrupting or finishing the parties’ sentences.

Difficult communication situations 6.38 Communication may prove to be a challenge for mediators in the following situations: In telephone mediations a mediator is entirely dependent on verbal and vocal communication and is unaware of the speaker’s body language. Here active listening may require a mediator to step up his or her encouraging vocal and verbal signals to indicate that the speaker is being heard. In shuttle mediations a mediator is aware of all three forms of

communication but has to decide what aspects of non-verbal communication to convey to the other party, who relies entirely on the mediator’s messages. In using interpreters — where a mediator does not speak the language of one or both parties he or she is reliant solely on the interpreter’s version of a speaker’s language and, because of cultural differences in this context, will have to be cautious about interpreting vocals and visuals. In online mediations a mediator may be exclusively dependent on electronic communication for understanding a distant party.

Reframing 6.39 Reframing is closely related to active listening and is an important skill for mediators. It is the other side of the ‘framing’ coin referred to earlier: see 6.18. Whereas framing is carried out proactively, reframing is a reactive mediator intervention. As already noted, people communicate within a frame of reference based on how they see the world in terms of their culture, experiences and sense of justice. The goal of reframing is to change this frame of reference in order to get parties to think differently about things, or at least to get them to see things in a different light. It is based on the fact that the language we use affects how we perceive the [page 178] world, that by changing language we can change perceptions and that changed perceptions can lead to changed behaviour — which is what is required to achieve settlements. Reframing can be described as a translation exercise through which the mediator changes the communication by moving it from one language to another with the hope that in the second language comments may be more palatable to the other side or more conducive to collaborative problem-solving. 6.40 Reframing takes place through the mediator using different

words, concepts and terms, using changed emphases and intonations, and otherwise qualifying what the parties have themselves said in order to provide the different frame of reference. As Charlton and Dewdney (2004: 173) point out, reframing is used not only to change the words being used but also the context of a party’s statement, for example from positions to interests or from the past to the future. The shift in emphasis can help parties consider a more constructive frame of reference, for example from an insistent claim of $1 000 000 to recognition of a relevant interest, namely the party’s desire to retire next year and be fairly compensated. Where reframing is successful it leads to a change in perspective or perception for the parties and, as indicated, this altered attitude or view of the dispute can lead to changes in behaviour. While the original frame of reference may have had a negative effect on the resolution of the dispute, the new frame of reference is conducive to constructive conflict management. The importance of framing and reframing is illustrated by the Kahneman effect (1979), also known as the endowment effect, which states that more is required to compensate someone who thinks that they are losing something in negotiations compared to someone who perceives that they are gaining something. Mediators can work around the Kahneman effect by appropriate framing and reframing to induce a relevant party to change their reference point and see settlement as a gain in terms of peace of mind, the opportunity to begin new business projects or investments with the settlement sum, and the end of litigation, stress and uncertainty — rather than a loss in giving up a right to pursue a monetary claim. 6.41 It must be emphasised that this is more than just a terminological exercise; it is about orienting the whole tone of the discussions. Where a party points out what is wrong, the mediator asks them to indicate what would be right for them. Where a party continually emphasises what they don’t want, the mediator gets them to talk about what they do want. Where a party goes on about what the other party wants, the mediator asks them to state what they themselves want. 6.42 There is similarity between reframing and the design of jokes. A joke-teller encourages a certain point of view but when the punch-line

is delivered the listener is able to see the preceding story in a different light. On the face of it the punch-line is incongruous, but when the [page 179] listener catches the joke by seeing the previous narrative in a new light, then the incongruous becomes congruous. The humour is caused by surprise, relief or delight which occurs when the punch-line is delivered and the listener has to change his or her erroneous expectations. In other words a scene is first described from one viewpoint and then rearranged, sometimes by a single word. Likewise mediators have the capacity through reframing to restructure parties’ perceptions of a dispute situation. In joke-telling the switch-over is temporary and gives rise to humour whereas in mediation it can be long-lasting and give rise to insight. While the joke-teller reframes to achieve laughter, the mediator reframes to contribute to problemsolving. Case illustration: Using language to shift parties’ focus In a lengthy commercial dispute concerning the mutual protection of a corporate trademark the directors representing each company began positionally by demanding ‘exclusive use’ of their company trademark, denying that the other company had any right to ‘use’ the existing company mark. The mediator reframed this language to that of ‘discussing the most appropriate arrangements for the use of the Company A mark and Company B mark’. Initially the parties resisted this definition of the problem and continued to assert their claim for exclusive use of their trademark. The mediator persisted and eventually one party, then the other, began using the new language. This shifted the focus from the directors to the needs of the companies. It led to a constructive discussion of Company A’s and Company B’s needs and to eventual agreement on a mutual trademark sharing regime with clear boundaries.

Functions and examples of reframing 6.43 Reframing can serve a number of different functions though no single reframe can perform each one of the functions at the same time. Nor is reframing a constant form of mediator intervention; it is used selectively where it can perform one of the stated purposes. In Table 6.3 the various functions of reframing are illustrated in the context of a hypothetical dispute between a buyer for a boardroom furnishings company and a supplier contracted to provide high-end luxury fabric for upholstering executive furniture. The fabric was delivered one week late and it was the wrong shade and texture, the buyer having requested grey woven silk and the supplier having delivered fuchsia faux silk. [page 180]

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Finally Table 6.4 (below) presents some party statements commonly encountered in mediation and ways in which mediators can reframe them. Table 6.4: Useful mediator reframes Client’s negative term Mediator’s replacement term ‘So you doubt the accuracy of some ‘He’s telling lies. points made?’ ‘So you had different expectations of ‘It’s all her fault.’ her?’ ‘I have my rights.’ ‘So you wish to exercise your options?’ ‘I want residence of the ‘So you need to discuss parenting children.’ arrangements?’ ‘I have a serious ‘So this is a situation you’re not satisfied grievance against them.’ with?’ ‘So you felt his language was ‘He abused me verbally.’ inappropriate?’ ‘His repair work was ‘So you consider that he did not work shoddy.’ according to specifications?’

‘I can’t stand it when …’ ‘She totally ignored me.’ ‘We had no room to move.’ ‘I think he was stealing.’ ‘I’ll destroy you in court.’

‘So you feel uncomfortable with …’ ‘So you are saying there was inadequate consultation?’ ‘So you felt that you had limited options?’ ‘So in your view some funds could not be accounted for?’ ‘So litigation is a real option for you?’ [page 182]

Potential problems with reframing 6.44 There are a number of potential problems with mediator reframing. The problems could arise because a suspicious or distrustful party finds it an alien experience, or it could be because the mediator does not carry out the reframing appropriately. In either event the party’s subjective assessment will be the same, namely that the reframing intervention has not contributed positively to the mediation discourse. Thus: Reframing is a difficult art and if performed badly may be seen as mere parroting of the parties. (‘Why does she keep repeating everything I say …?’) Reframing could be seen as manipulating. (‘That’s not what I said, he keeps twisting my words …’) Reframing could be perceived as the mediator favouring one party and losing her non-partisan role. (‘She seems to be agreeing with the other party all the time …’) 6.45 Nevertheless appropriate reframing is a powerful mediator intervention and it can be readily improved through practice. One of the golden rules for avoiding the potential problems is to maintain

impartiality in the reframing role and to use the intervention in relation to both parties’ communications. However, it takes some trial and error to achieve the correct balance as illustrated in the following example. Finding the balance in reframing The mediator’s first reframe might be unsuccessful, in the sense that it is ‘rejected’ by the party to whom it is directed. He or she could then try again. However, there are dangers in being too persistent. Assume in the following exchange that the mediator wants to soften or at least qualify Oscar’s positional claim in order to get some flexibility into his thinking: Oscar: ‘I want a million dollars.’ Mediator: ‘So you want to be reasonably compensated to settle this?’ Oscar: ‘No, I told you I want a million dollars.’ Clearly the reframe has not worked as Oscar has restated his positional claim, and he is not happy with the mediator. The mediator could persist with a softer reframe in the hope that Oscar will accept it: Oscar: ‘No, I told you I want a million dollars.’ Mediator: ‘So at this point in time a million dollars would be reasonable compensation for you?’ Oscar: ‘Yes … I guess that is the case.’ The mediator now has two flexible concepts to work with, ‘this point in time’ and ‘reasonable compensation’. At a later stage she could make use of these concepts: Mediator: ‘Oscar, now that you have heard from Odessa, what do you think a reasonable compensation would be?’

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However, Oscar might also reject the second reframe with greater insistence than before, for example: Mediator: ‘So at this point in time a million dollars would be reasonable compensation for you?’ Oscar: ‘No, I’ve already told you twice, I will only ever settle for a million dollars, not a cent less.’ Here Oscar has entrenched himself in his positional claim and the mediator may decide not to make matters worse, acknowledge Oscar and move on. Alternatively, with some risk of losing Oscar’s trust, she might try with the softest of reframes: Mediator: ‘So, Oscar, your preferred option is one million dollars; let’s now look at Odessa’s options and see where we can get …’ This has not contradicted Oscar’s positional claim but is calling it something else, namely a preferred option, and is opening the way for a consideration of other options. Where to draw the line when reframing? It is impossible to define this in the abstract. There is inevitably some trial and error in this area. Our preference is to be as persistent with reframing as the circumstances suggest is feasible.

Appropriate Questioning 6.46 There are different views as to the nature and extent of the questioning undertaken by mediators. In some mediation models mediators conduct the process almost entirely through the use of questioning. In others mediators ask very few questions of the parties but encourage them to explain certain facts or feelings directly to each other. The degree of questioning may also depend on the stage and phase of the mediation. Mediators may be reluctant to ask certain kinds of questions in joint session or early in a mediation but feel it appropriate to ask them in separate session or towards the end of a mediation. The mediator also needs to keep a check on questioning

by professional advisers who may seek to interrogate or crossexamine the other party. 6.47 Table 6.5 provides some of the different categories of questions, an illustration of each, the objectives for which the category can be used and the circumstances in which the particular category might be appropriate. They are based on a hypothetical mediation involving Karlie Meringe, a famous entertainer, and Nigel, a newspaper reporter. The dispute concerns Karlie’s defamation claim arising from a story in the Sunday newspaper claiming that Karlie had been involved in a scandal whilst on tour in Paris. [page 184]

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[page 187] 6.48 At a broad level, no type of question is unsuitable; it all depends

on context and circumstances. However, our experience suggests that questions for gaining specific information are the most overused tool in the novice mediator’s toolbox. Folberg and Taylor (1989: 109) warn that, ‘[i]f questions are used to the exclusion of other techniques, the conversation will cease to be an exchange and will become an unsatisfactory form of verbal ping-pong or interrogation’. We agree with this view. In the early stages of mediation open questions are needed so that parties can tell their story without suggestive leading questions. Only rarely will closed questions of the either/ or variety, associated with selling techniques, be appropriate. (‘Shall I come on Wednesday or Thursday?’, ‘Would you like the small model juicer or the professional deluxe?’) Thus the question, ‘Do you want to settle at mediation or go to litigation?’ has a powerful rhetorical effect. However, it could be experienced as manipulative, especially if asked too early in the mediation, and might receive an unexpected answer.

Hypothetical questions 6.49 The ‘what-if’ or ‘if-what’ question is a frequently used mediator intervention. As illustrated above, it is used to get the parties to consider options hypothetically without feeling committed to them. The two forms of the hypothetical question are as follows: Mediator: ‘Nigel, what if Karlie were to agree to accept your suggested compensation — would you then be able to make a commitment in relation to her positive publicity campaign?’ A more elegant version may look like this: Mediator: ‘Karlie, if Nigel would agree to pay for your positive publicity program, what would you be willing to accept in relation to the amount of compensation?’ In each case the question allows the relevant party to make a settlement suggestion on one issue in the knowledge that it will not be binding unless the precondition on another issue is satisfied. If the condition is not satisfied, the party’s concession can be withdrawn. This is related to the negotiation strategy of conditional-linked bargaining, on which see 7.65-7.67.

Reflective versus probing questioning 6.50 Reflective questioning includes both empathic and clarifying questions, as defined in the previous table. Covey (2004: 251) names empathic communication through actions, comments and questions as one of the seven habits of effective people. Empathy refers to the ability to put oneself in the shoes of another, to understand things from their perspective. Empathy does not signify agreement, nor does it amount to sympathy with, or compassion for, another. It involves convincing a person that the listener has entered their world of perceptions, if only temporarily. Empathic questions show a sender that the receiver has understood what they said. They involve reflecting a feeling from the sender’s statement. [page 188] Examples of empathic questions are: 1. ‘So, Karlie, it sounds like you felt disgraced … for you and your family because of the allegations made in this story …?’ 2. ‘Karlie, it sounds like your health suffered and that you became more despondent from then on …?’ 3. ‘Nigel, it sounds as if you were concerned about the legitimacy of information supplied to you after Karlie and her family complained about this story …?’ While empathic questions seek to check out the feeling or attitude behind a statement, clarifying questions seek confirmation of material aspects of a dispute such as facts, information and priorities as identified by mediation participants. As indicated in the previous table, probing questions are different again and seek more focus, more concreteness, more specificity or more accuracy. While probing questions may be entirely appropriate in some circumstances, mediation is not the appropriate venue for an inquisition, whether by the parties, their advisers or the mediator — it

is likely to make parties defensive and adversarial. In addition mediators do not need to know the full facts in order to fulfil their facilitation role. If there is a genuine need for additional information a mediator might discuss with the parties ways of engaging in a fact-finding exercise. Therefore empathic and clarifying questions are generally more important for mediators to understand and use than probing questions.

Reiterating 6.51 Mediators need to prevent anything of value ‘falling off’ the negotiation table. In the heat of the moment it is possible for an apology, a concession or a significant offer not to be heard by the nonspeaking party because of their anger, psychological deafness or focus on winning. Here it is wise for mediators to ask the speaker to repeat the value statement, when the timing is appropriate for this intervention: Mediator: ‘Nigel, I think you were making an offer in terms of compensation a few moments ago, when we got side-tracked by the question of Karlie’s health. I’m wondering if you would like you to repeat that offer now …’ Alternatively, mediators might themselves reiterate the statement of value when circumstances allow, for example: Mediator: ‘A few minutes ago I heard Nigel say that he would print a formal apology in the forthcoming Sunday newspaper. Is that correct, Nigel?’ [page 189] Reiteration can be used to step up a weak signal from one party that is not being heard by the other, for example: Mediator: ‘Karlie, Nigel has indicated on a number of occasions that the story is not a personal attack on you nor on your work as an artist, which he says he admires very much. Is that your

understanding of what he has said as well?’ Generally reiteration is one of the tools in the mediator’s toolbox which can be used in all situations in which parties are talking past each other and not picking up on important messages.

Paraphrasing 6.52 Paraphrasing involves a mediator closely controlling the dialogue between parties by picking up on important issues and reflecting the salient points in the mediator’s own words. Here mediators tend to focus on factors that seem to be important to the parties such as major concerns, interests, needs and feelings, thereby ensuring there is a response to these aspects of each party’s message. Because paraphrasing involves the mediator intervening in the dialogue with clarifying and empathic questions and reframing some of the conversation, it requires delicacy and discretion in choice of language. 6.53 The following hypothetical dialogue is from a mediation involving a widow and a relative of her deceased husband in relation to the distribution of his estate. Here the deceased’s wife, Mrs Rona Steele, is negotiating with a distant cousin, Ms Gabriella Gold, as a step prior to distribution of the estate of the late Mr Rod Steele. It illustrates the paraphrasing method: Mediator: ‘Ms Gold, Mrs Steele is saying that although you may be justified in making a claim on the estate, the way you have approached this has caused her a great deal of pain, suffering and sadness. I’m wondering how you would like to respond to her on that …?’ Ms Gold: ‘Yes, look … you have my deepest sympathy at this time. I know you and Rod loved each other and it must be really hard for you. Sorry if my manner has upset you. Rona, you were always good to me when I visited, you had an open door and listened to my woes. And sadly, this situation is no different … My partner has left me and taken all the furniture. He just cleared out the house. You know I don’t work and I have four children to feed … I am really in desperate need of support.’ Mediator: ‘Mrs Steele, Ms Gold has expressed her regret at the pain

she has caused you. She has acknowledged the close relationship that you and Mr Steele had and how bereft you must feel at his loss. Ms Gold also emphasised how good you have been to her in the past. Can you tell her how you feel now that you have heard that …?’ [page 190] Mrs Steele: ‘Well, it’s the first time I’ve ever heard words of kindness from Gabriella … But I am still not willing to part with any of the antique furniture that Rod’s great-grandfather hand-crafted …’ Paraphrasing should be done in an even-handed way so that both parties’ communications are paraphrased. It can be used to set up a pattern of direct communication between parties. It can break what Charlton and Dewdney (2004: 250) call the ‘Oh but’, ‘Yes but’ pattern of communication: ‘Oh but I didn’t understand that’s what you wanted.’ ‘Yes but I had told you only two days before …’. However, if this is the only way of keeping parties communicating constructively it will become strained and artificial.

Summarising 6.54 Reference has already been made to the mediator’s function of summarising the parties’ initial statements: see 5.32-5.34. In that context summaries are intended to provide accurate accounts of what each party has said in order to demonstrate that they have been heard and to allow the mediator to verify his or her understanding of what has been said. Summarising can also be used in later mediation and it will take on a different complexion in other contexts. Generally summarising involves a mediator briefly restating or recapping important features of the preceding discussion and identifying the dominant feelings of the parties. Summarising can be a powerful intervention which can achieve one or more of the following objectives:

Provide a neutral and organised version of a course of discussion. Pick up on key issues which might otherwise have been overlooked. Simplify convoluted exchanges. Remind the parties that progress is being made. Signpost to all participants at which stage of the mediation they are. Provide acknowledgment to the parties that they have been understood. Establish a platform for the next round of discussions. Assist a mediator to establish trust by using key words spoken by the parties. 6.55 Good summarising requires a range of micro-skills, such as retaining important information, recalling it and condensing it. It is always a selective process in that the mediator picks up on the progress to date and presents it in a positive summarised statement. It is also selective in that the mediator picks up only on what is useful for mediation, as opposed to what would be useful for law or counselling. The reason why the mediator is selective in the summaries is that it provides a positive and encouraging basis for parties to move forward with their negotiations. However, the summary also needs [page 191] to be balanced in the sense that it deals fairly with what each party has said. The following is an example of a summary from the Steele and Gold mediation: Mediator: ‘Now Mrs Steele, you’ve told us that you initially found it difficult to negotiate with Ms Gold because you felt that she could have dealt with you more humanely and sympathetically. You also said that while you might not be able to resolve all your personal differences, you are prepared to offer Ms Gold a small portion of the late Mr Steele’s estate. And Ms Gold, you acknowledged that you could have handled things differently with Mrs Steele and demonstrated greater empathy for her loss. You

also explained the pressures you are under at home and said that you would be prepared to consider a financial offer from Mr Steele’s estate as opposed to the hand-crafted antique furniture that you had originally requested. Is that correct …? Now, Mrs Steele and Ms Gold, let’s move forward and look at how we can crafta financial arrangement that you can both live with …’ 6.56 Summarising is useful after each party has made their opening statement. It is also useful after an adjournment or when a joint session resumes after separate sessions where it has the function of refocusing parties on the state of the negotiations. It should also be used when parties reach an impasse in their negotiations; here it has the function of emphasising the positive progress to date and providing building blocks for the future. Despite the fact that good summarising can be one of the most effective interventions for mediators, it is probably one of the most under-utilised. It should now be added to your toolbox of skills.

Transitioning 6.57 After the agenda has been established, and especially during the exploration, negotiation and problem-solving stages of the process, a mediator is likely to encourage discussions between the parties in relation to the identified issues and how to address each of them. Here the mediator needs to facilitate a transition from mediator-party communication to party-party communication. Transitioning helps parties to talk directly about different aspects of the conflict and the identified agenda items. Consider the following possible transitions by a mediator in a hypothetical dispute between a catering company and an events management business relating to a major order gone wrong. During exploration the mediator asks, ‘Jon, can you tell Sonia about your understanding of the arrangements for making and processing catering orders?’ [page 192]

During option generation and after summarising what Sonia has said, the mediator asks Jon, ‘Jon, you have just heard Sonia outlining some ideas for addressing the financial consequences of what happened. Before you respond to any of these can you tell Sonia what ideas you have in relation to this point?’ During negotiation and problem-solving, the mediator asks, ‘Sonia, can you explain to Jon how you envisage the new arrangements working and precisely what you would expect from Jon in terms of communication and time frames?’ A mediator can also facilitate transitions from party-party communication to mediator-party communication where, for example, the parties are bogged down in their direct negotiations with one another or emotions are escalating. For example the mediator may say, ‘I can see that both of you feel very strongly about this point. I’m wondering, Jon, if you can tell me how you felt when Sonia told you what had happened with the catering at her event?’ The mediator might then turn to Sonia and summarise what Jon has said, ‘Sonia you just heard Jon say that he felt …’. The mediator would then summarise Sonia’s response back to Jon. This communication pattern might continue until the mediator considers it appropriate to transition back into direct party-party communication.

Note-taking 6.58 Reference has been made in Chapter 5 (see 5.29-5.30) to the mediator’s role of note-taking during the party statements. During the rest of a mediation most mediators take only brief notes despite the fact that it is rare for proceedings to be recorded and a transcript to be produced. The following notes would ordinarily be required at the different stages of the process. Preliminaries : names of parties and advisers, time of commencement, special conditions for mediation, nature of queries by parties during this stage, party requests for adjournments and the like. Mediator’s opening statement : important matters dealt with such as

authority, confidentiality, separate meetings — can be checked off on a list. Party statements : main concerns, important facts, some record of feelings. List of issues: the mediator should keep a separate list in case that on the whiteboard is erased or changed. Negotiation stages: settlement options, concessions, acknowledgments, apologies, figures and amounts, sequence and timing of offers and counter-offers. Separate meetings : time of start and conclusion, exact offers if they are to be communicated by mediator, record of matters to be kept confidential. [page 193]

Exchange of Information 6.59 Mediators play a pivotal role in conveying information, proposals and offers, whilst maintaining the integrity of their neutral role and preserving confidentiality. The exchange of information by the mediator involves clarifying what each party wants to be conveyed, assisting them couch the exchange in appropriate language and ensuring the accurate, strategic and effective relay of that information. Information exchange involves the following mediator skills: careful listening; checking information being given and referring it back to the party giving it to ensure accuracy; checking confidentiality; checking authority to exchange; clarifying the ambit of the authority to exchange — its purpose and possible effects or implications and language to be used; framing and reframing of language; timing of exchange; mediator preparation for the exchange — the mediator is not a

mere messenger and aims to impart information skilfully and strategically; consideration of tone to be used in the exchange; effective presentation skills. Information collation, disclosure and exchange have an additional dimension in certain contexts such as family mediation. Here mediators are required to inform parties of the need for full and frank disclosure, in particular in relation to financial matters and property, and to assist them identify relevant information and request any needed documentation. This duty arises with the commencement of pre-action procedures and continues until the case is finalised: see Chapter 13 of the Family Law Rules 2004. Mediators have no obligation to make independent inquiries or undertake verification. However, they may assist parties in how they make such inquiries.

Assigning Tasks 6.60 Throughout mediation a mediator may assign each party tasks in order to assist progress of the negotiations. For example the mediator may request the parties to consider: the strong and weak points in a party’s legal case; the uncertainties associated with trial; the cost implications of going to trial; [page 194] other implications of the matter not settling at mediation; the range of possible settlement options; the alternatives to settlement available; the opportunities and risks associated with settling and of going to trial; objective criteria relevant to reality testing options; obtaining or reviewing figures; obtaining legal or other professional advice or technical reports and

documentation; clarifying authority to settle; formulating offers or concessions and the wording of any acknowledgments; making a visual presentation to assist a joint meeting. Where a mediator assigns tasks to a party, it is important to ensure the results are picked up in a subsequent meeting with the party and not forgotten.

Drafting 6.61 As referred to in Chapter 5 (see 5.76), most mediated agreements are recorded in writing and signed by the parties. Practice varies as to whether agreements are drafted by mediators or by the parties and their advisers. In both situations mediators require drafting skills whether as drafters, advisers or supervisors of those undertaking the drafting. The principles which mediators need to take account of in relation to their drafting function, and some specific content issues, have been referred to previously: see 5.78. See Appendix 5 for three samples of mediated agreements; from a commercial mediation, a community mediation and a family mediation.

Mediator Learnings 6.62 This chapter provides the following learnings for mediators. 1. Mediators have important communication functions, in particular in modelling appropriate mediation language, modifying inappropriate words and terms, being attentive to the many forms of communication taking place and making their own communication clear, unambiguous and consistent. 2. A mediator’s communication functions have the goals of opening up channels of communication between parties, highlighting what is

[page 195] important to them, allowing them to communicate directly with each other and avoiding ambiguity and confusion in their dialogue. 3. All communication skills, in particular non-verbal communication, are dependent on the cultural assumptions and understandings of the parties involved in mediation. 4. Cultural awareness and fluency in navigating the nuances of culture and individual differences is an essential skill for mediators.

Tasks for New Mediators 6.63 Develop a list of terms and words associated with conflict in your professional practice, work, educational institution or home. Write out at least two positive replacement terms for the negative words or phrases and ask someone to assess their suitability. Try using the replacement terms in your particular situation. 6.64 Assume that an insurer’s lawyer attempts to ask probing questions of the plaintiff. You as the mediator are concerned that this might lead to a hostile interrogation. What interventions could you use to allow the lawyer to ask legitimate questions without the plaintiff being cross-examined? (A clue for one intervention: the plaintiff also has a lawyer present.) 6.65 Think of a person you know who is a good listener. List the behaviours and qualities that make him or her a good listener. Think of a person you know who is a poor listener. List the behaviours and qualities that make him or her a poor listener. 6.66 In a workshop setting participants form pairs; one person is designated the ‘mover’ and the other the ‘pacer’. The instructor calls out concepts such as hope, justice, conflict, impasse, resolution, fear, trust and other terms that can be related to conflict and its resolution. The mover ‘embodies’ the concept either as a freeze-frame or a continuing movement and the pacer mimics the mover’s body

language. After a few concepts have been tried swap roles. At the end of this activity both mover and pacer discuss how it felt to embody someone else’s understanding of concepts related to conflict resolution.

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CHAPTER 7

Facilitating the Negotiations Introduction On Negotiation Generally Mediator’s Role in Negotiations Mediator’s Role in Positional Bargaining Mediator’s Role in Promoting Interest-based Bargaining Special Techniques in Negotiation Dealing With Impasses Different Methods of Performing These Functions Mediator Learnings Tasks for New Mediators

Introduction 7.1 Mediation is often defined as a form of assisted negotiation; the mediation process is portrayed as an extension and elaboration of the unassisted negotiation process. This suggests that mediators are not negotiators in the direct sense, but are able to use their negotiation expertise to improve negotiations that the parties are conducting. If there are any ‘golden rules’ for contemporary mediators, one would be that they need to become aware of both the ‘art’ and the ‘science’ of negotiation in order to perform their role adequately. The NMAS Practice Standards s 7(3)(a)(iv) and (v) identify ‘communication patterns in … negotiation’ and ‘negotiation dynamics in mediation’ as essential knowledge areas for competent mediators. In terms of skills, the Standards s 7(3)(b)(v) specify ‘negotiation techniques and the mediator’s role in facilitating negotiation and problem-solving’.

[page 197] How mediators use this negotiation expertise to assist parties is not, however, a straightforward matter. The NMAS Practice Standards s 9(4) requires that ‘the mediator should encourage and support balanced negotiations’. Achieving such balance is a subtle and demanding mediator skill that lies between strong intervention and benevolent neglect. 7.2 This chapter deals with the mediator’s role as facilitator of the parties’ negotiations. As with the previous chapter, the present one provides only a brief overview of general negotiation strategies and styles and deals mainly with the particular role of mediators in the negotiation process. More insights into negotiation itself can be gained from the specialist literature on this subject, from training courses and from reflecting on real negotiation experiences. Mediators are in fact privileged observers of negotiation practice conducted by the parties and their advisers.

On Negotiation Generally The stages of negotiation 7.3 Specialist texts on negotiation provide elaborate accounts of the stages of negotiation. Here the stages are only described briefly, with the important disclaimer that negotiation is often not a strictly sequential process, and in any particular negotiation one or more of the stages may be missed or come at an unpredictable time. Furthermore the existence of the stages and their sequence will depend partly on which approach to negotiation the parties adopt. This topic is considered later in the chapter. 7.4 Notwithstanding these qualifications, it is still possible to list the potential stages of negotiation: Initial process decisions: these are the ‘who’, the ‘where’, the ‘when’ and the ‘what’ matters, namely the identification of the negotiation

parties, the venue, the timing and the topics to be negotiated. Behaviour during this stage can affect later stages; successful agreements on process issues (where and when the mediation will be held) can provide a sound platform for later negotiations on content issues (the money, the barking dog, the children, the apology). Opening rituals: negotiation can have its own rituals, which depend very much on culture and context. In some situations there may be extensive interpersonal rituals involving the exchange of pleasantries, refreshments and symbolic acts of acknowledgment, and in others there may be only brief greetings and handshakes and perfunctory small talk, after which the parties proceed directly to business. On ritual see 3.18. Relational jockeying: here parties engage in both competitive posturing and relationship-building as they gauge the negotiation approach of the other. Negotiators in this stage are usually focused on creating an aura of power and are looking to persuade the other negotiator that they hold the stronger negotiation position. They are also trying to influence [page 198] the other into an appreciation of who they are, their status and the value (or not) of the relationship. Exchange of information and views: this refers to the mutual exchange of stories, information, data and perspectives by all parties. Sometimes this occurs in concentrated form at the beginning of negotiations, in others it is interspersed throughout. Generally negotiators will first exchange priority information only, as they gauge the ‘reciprocity’ of the other side. Negotiators tend to offer further details as they see progress being made in the negotiations. Development of the issues: this refers to the process of identifying the issues to be worked through and then defining precisely what is and what is not to be negotiated. This may take some time,

especially where it has not been resolved prior to negotiations and the circumstances either do not make it self-evident or render it a matter of contention. Opening and signalling: this refers to the voicing of demands and claims, often involving dollar amounts, and the accompanying signalling designed to reinforce the claim or indicate that it is only an initial position. There may be some tactical manoeuvring (relational positioning) between parties over who makes the opening bid. Development and exploration of options: this involves parties considering possible ways of dealing with the problem facing them; again, this can be a dynamic, creative process of option generation or a limited and narrow one mainly involving concession-making. Evaluation and selection of options: here the parties assess the value of various options from their own points of view, comparing offers with their goals, bottom lines and alternatives. They may also evaluate options in terms of agreed standards and select those of potential relevance and interest to them. Bargaining from options: here each party attempts to persuade the other side to accept their preferred options and endeavours to package a deal involving linkages and trade-offs favourable to them. During these sequences of offer and counter-offer, rational argument and persuasion, negotiators are concerned with both creating more value on the negotiating table and claiming for themselves more of the existing value on the table. Negotiators must work hard to balance the tension between these impulses. Crossing the last gap: this refers to the stage where parties are close to a deal but find it difficult to manage the last amount of value on the negotiation table and ‘cross the last gap’. Here parties frequently haggle over who will make the final concession. Recording and documentation: here parties reduce the agreement to some form of written document and decide on other relevant matters such as the legal nature of the document and its enforceability. While many negotiated agreements take the form of a binding contract, others may be recorded as a statement of intention or memorandum of understanding.

[page 199] Parties may also choose to include diagrams, maps and other visuals to clarify their settlement. Termination and closure: here parties conclude and finalise the negotiations. This may involve some ritualistic closure such as handshaking, sharing a drink or a meal or something more formal such as a ceremony. As already indicated, there is no A-Z of negotiation, and even if there was, some negotiations would only include steps K, Q and W. Nevertheless mediators need to be aware of the various possible stages of negotiation to be able to assist parties as they work through the process.

Approaches to negotiation 7.5 The literature distinguishes several different approaches to negotiation: see Alexander and Howieson (2010: 19-59) and Boulle (2011: 117-33). Different terminology is used to refer to the different approaches. As this is not a text on negotiation itself, reference is made to only two broad approaches to negotiation, namely positional bargaining and interest-based bargaining, as a basis for discussing the role of mediators within each style. The two approaches are not, however, mutually exclusive and a single negotiation may, and often does, display elements of both. The approaches are described, illustrated and assessed in Table 7.1.

[page 200]

More detail on the elements and dynamics of these two bargaining approaches follows in the discussion of the mediator’s role in negotiations.

Mediator’s Role in Negotiations 7.6 Mediators can assist parties with their negotiations before mediation, during the joint sessions, during the separate sessions and shuttle stages, during the closing stages and even after a mediation has been terminated. They can educate, advise, demonstrate, coach and rehearse. How they go

[page 201] about these tasks involves the use of discretion, some important judgments and a sense of timing: for instance there are clearly restrictions on what can be done in joint sessions, while there is greater latitude for mediators in separate sessions. There will also be some trial and error as the mediator revises or refines the hypothesis on which an intervention was made in the light of its impact and effectiveness. In most negotiations there will be some scope for mediators to: Assist the parties with planning and preparing to negotiate during pre-mediation contact. Guidance should be specific; plans should be simple and tailored to the particular mediation; and flexibility will be required given that preparation will occur in the context of incomplete information. Encourage open-mindedness in relation to negotiation approaches. Help with developing cohesive strategies within negotiation teams. Move parties through the rituals and other opening stages. Act so as to avoid unhelpful negotiation tactics, such as differentsized chairs, staged interruptions or the ‘no authority’ strategy. Emphasise common ground between the parties to provide a positive tone to the negotiations and a platform for further agreement. Coach parties on negotiation skills and techniques, for example the opportunities and risks associated with making the first offer, generating options, packaging offers, the number and sizes of concessions, considering numbers in different ways, reality testing offers and assessing alternatives to settlement, and managing expectations about the process and likely outcomes. Get the parties to deal with the ‘easy’ issues first, for example sorting out basic facts or documentation. Anticipate post-settlement blues (subsequent regrets about the agreement) and advise on ways of dealing with this syndrome. Consider strategies for dealing with outside parties who need to ratify agreements or who could jeopardise their success.

7.7 Thus, regardless of the approach to negotiation, it is often useful to negotiate about procedural matters first before moving on to matters of substance. This makes practical sense in that matters of venue, timing, identity of participants and other process issues need to be sorted out before negotiations proper begin. But more than this, decision-making on these issues provides parties opportunities to learn about each other’s negotiation styles, to have some early negotiation successes and to develop confidence in their ability to negotiate successfully with each other. Mediators can encourage this emphasis on ‘procedure first’. Likewise, in most approaches to negotiation it makes sense to deal with the ‘easier’ substantive issues first and to postpone more difficult issues for later. There may also be other sequential approaches more suitable in the [page 202] circumstances, for example dealing with issues requiring immediate short-term solutions before dealing with how to address other issues in the long term. Mediators can guide or educate parties about this and other realities of the negotiation process. The mediator’s more specific roles can be best described in the context of the two approaches to negotiation referred to in the previous section.

Mediator’s Role in Positional Bargaining 7.8 Table 7.1 refers to some features of positional or distributive bargaining. This approach to negotiation is commonly encountered in mediations which involve deciding ‘who gets what’ in relation to money, shares, chattels, hours of Christmas Day and other benefits whose number or quantity are restricted in one way or another. In this kind of negotiation there are limited compatible or mutual interests, and the more one side obtains the less the other will receive — the ‘more for you must mean less for me’ scenario. For example if Kate

wants 100 royal widgets (known as rydgets) and William wants to give her only 50, each extra rydget over 50 that Kate gains will entail a loss of one for William. These situations are referred to as ‘zero-sum’ disputes — if you add the gain of one party to the loss of the other party, it will equal zero (Kate’s gain of 10 rydgets and William’s loss of 10 give a balance of zero). Positional bargaining is often encountered in buying and selling in the market bazaar, and in disputes in which parties take the view that it is only about money or another single value and there is no future relationship between them. 7.9 The typical pattern of positional bargaining is depicted in Figures 7.1 and 7.2 using the rydget scenario. Figure 7.1: Positional bargaining I

[page 203] Figure 7.2: Positional bargaining II

The distance between the two resistance points (sometimes referred to as bottom lines) RP(W) and RP(K) constitutes the bargaining range. In Figure 7.1 William’s resistance point is 70, which means that he is prepared to give Kate up to 70 rydgets. Kate’s resistance point is 60; in other words she is prepared to accept a minimum of 60 rydgets — after all she has not been a Royal for very long. Thus there is a positive bargaining range (also referred to as a zone of possible agreement or ZOPA) of 10 rydgets and high hopes for a right royal agreement. Alternatively, there can be a negative bargaining range, also known as a bargaining gap. Figure 7.2 illustrates a negative bargaining range. Here William is prepared to give Kate up to 50 rydgets, but Kate will not settle for anything less than 60! Here there is unlikely to be a settlement through positional bargaining, and unless one or both parties change their resistance point a royal stalemate may ensue. Lewicki et al (2010) make the following three propositions about the effect of the resistance point on positional bargaining: 1. The higher one party’s estimate of the costs to another of delay or impasse, the stronger their resistance point will be. 2. The higher a party’s estimate of their own costs of delay or impasse, the weaker their resistance point will be. 3. The less value a party places on an issue, the lower their resistance point will be.

Characteristics of positional bargaining 7.10 There are several predictable characteristics of positional bargaining: extreme opening offers, incremental concession-making and signalling. Each of these is discussed in turn. [page 204]

Extreme opening offers 7.11 Both parties make extreme opening offers (points 00(W) and 00(K) in Figures 7.1 and 7.2), in the expectation that this will impose pressure on the other side, allow them to keep something up their sleeves with which to trade and bargain, and lead to a more favourable point of compromise. Studies show that in many cases an extreme positional demand (ambit claim) at the beginning, provided it does not fall in the ‘insult zone’ which results in the other party leaving the negotiating table, will result in a better outcome for that party.

Incremental concession-making 7.12 There will be a series of ‘incremental concessions’ from each side, sometimes referred to as a ‘negotiation dance’. This involves each party making a number of concessions from their original position, and on each subsequent position, until they reach agreement (somewhere between points RP(W) and RP(K) on Figure 7.1) or until they refuse to concede any further and fail to settle (somewhere between points RP(W) and RP(K) on Figure 7.2). In an attempt to influence the other side to back off their opening position, and each succeeding position, parties use a range of tactics including stonewalls, threats, anger, intimidation, ridicule and tricks (sometimes referred to as the LBT factors — lies, bluffs and tricks). Parties will use these tactics, where they have the aptitude, power and

incentive to do so, in order to ‘create doubt’ in the mind of the other party. Where there is an inequality of bargaining power these tactics may be highly successful for the more powerful party in achieving an outcome closer to their own preferred outcome (PO on Figures 7.1 and 7.2), which is somewhere between their opening offer and their resistance point. The weaker or more vulnerable party makes concessions as a result of the pressures and tactics applied by the other side, as they alter perceptions about their negotiation prospects and their own best interests. 7.13 While there is no uniformity in concession-making, the following patterns can occur. Matching: this often occurs at the beginning of concession-making, where each side matches the other’s concessions (for example William concedes five rydgets, Kate five rydgets), and at the end of the negotiations, where parties are prepared to match each other by ‘splitting the difference’; on which see 7.77-7.78. Mismatching: this occurs where there is an impasse in the negotiations, and the weaker party, or party more in need of a settlement, makes a large concession to prevent the negotiations from failing and the other side, sensing ‘victory’, makes a smaller one (for example William concedes 10 rydgets, Kate two rydgets). Decreasing increments: this means that each successive concession is smaller than the previous one (for example, 10, five, three, two rydgets), and usually takes longer to obtain (‘half the size, twice the time’), though occasionally the successive increments are of equal size (for example five, five and five rydgets). [page 205]

Signalling 7.14 The pattern and sequence of concessions involves a form of signalling between the parties in that they convey to each party some

insight into the other’s intentions. Thus a series of equal concessions (for example 10, 10 and 10 rydgets) suggests that further concessions can be anticipated, while diminishing concessions (for example 10, six and two rydgets) suggest that the relevant party is reaching its resistance point (RP(W) or RP(K) in the figures). Of course there is no science to this kind of prediction, and it is indicative only of the way the negotiations might develop. There may be a ‘last gap’ that is difficult, and in some cases impossible, to bridge. This can be because each party feels that it has conceded too much already, neither party wants to make the final concession, and both are concerned about ‘losing face’. (On facesaving see 3.44-3.45.) The last gap is depicted by the negative bargaining range between points RP(W) and RP(K) in Figure 7.2. (On crossing the last gap, see 7.75-7.76.) 7.15 The following behaviours are characteristic of positional negotiators. Effective positional negotiators: ensure their opening offer gives them sufficient room to make concessions; make the first offer if they want to set the tone and the ‘anchor’ for the negotiations; wait for the other party to make the initial offer if they want to first get a sense of how the other wants to engage in the ‘negotiation dance’ or if they are ill-prepared in terms of setting their own initial offer; will concede on a less important issue in order to receive a concession on a more important issue; make concessions reluctantly and with long intervals in order to allow the other party to feel as if they have had a real ‘win’; make concessions in ever-decreasing increments; control the flow of information; keep the other party’s expectations low; use conditional-linked bargaining, that is linking the making of a concession on one issue to a reciprocal concession by the other party on another issue; for example William gives Kate another two rydgets if she provides the appropriate display casing for all the

rydgets (see 7.65-7.67 ); may link concessions to justifications so that the concession feels like a ‘transaction’ in itself rather than just giving up some of what you want. For example William and Kate are three rydgets apart; Kate concedes these to William after he points out to her the costs and enormous effort involved in relocating the rydgets. This technique is often used to save face and to cross the last gap in negotiations. [page 206] Finally good positional negotiators know that the amount of the opening offer in combination with the number and size of concessions made directly impacts upon the negotiated outcome. During preparation therefore it is useful to work through a number of scenarios involving a range of potential opening offers and concession-making patterns. This type of preparation enables negotiators to respond promptly, and with awareness of the consequences, to the other negotiator’s opening and concessionmaking tactics.

The context and benefits of positional bargaining 7.16 There are several reasons why parties might engage in positional bargaining in certain contexts. The system has deep cultural roots in that it is the pattern of negotiation encountered in the marketplace, for example in buying a hairdryer, a horse, a house or a Holden. It is a system of negotiation which can be conducted with little preparation and which does not assume any educational background or require any special skills. Once commenced, positional bargaining is difficult to get out of, as it is a reactive model of negotiating with continual ‘titfor-tat’ exchanges between the parties. It also has some short-term emotional advantages where there is a need to appear strong and forceful to the opposition.

7.17 Where parties are in competition with each other over scarce resources, it is entirely logical for them to make extreme opening offers (points 00(W) and 00(K) in the figures) and to be secretive and uncompromising in the negotiations. If they are not as extreme as possible at the beginning of the negotiations, the chances of their having conceded too much by the end are increased. Positional bargaining appears to make sense in terms of protecting each party’s interests and information. In a competitive situation it does not make sense to disclose information unilaterally, to make concessions and to be exploited. This is illustrated in a negotiation exercise called ‘The Prisoner’s Dilemma’ which is played at many mediation workshops; it shows that where one party is collaborative (interest-based) and the other is competitive (positional), the former will lose out. In order to avoiding losing, the collaborative party is likely to resort to competitive strategies as well, but where both parties adopt competitive strategies they both lose out. The object of the exercise is to discover ways of getting both parties to engage in collaborative bargaining which serves both their interests simultaneously and leaves them both better off than if they had bargained competitively. 7.18 As already indicated positional negotiation is typically used where there is little likelihood of a future relationship between the parties. This includes personal injury disputes, dissolution of partnerships and debt claims. It can also be more likely where the negotiating parties are using intermediaries such as lawyers, or where they have to appear tough in the eyes of outside persons, such as managers and trade union officials in industrial disputes, and ratepayers in planning and development disputes. [page 207]

The role of mediators in positional bargaining 7.19 Mediators may be able to intervene in some aspects of positional

bargaining (some of these interventions might also be appropriate for interest-based bargaining): discussed in 7.20.

Making the first offer 7.20 There are different views as to the benefits and shortcomings of making the first offer in positional bargaining. Assume, in the following illustrations, that the parties are bargaining over the price of a used set of Le Creuset cast iron cookware, a classic positional bargaining situation. (Mediation can be used for ‘transactional’ as opposed to ‘dispute resolution’ negotiations, though not much in respect of Le Creuset cast iron.) 7.21 Where a party wishes to establish one end of the bargaining range they may decide to make the first offer and attempt to influence the other side by making it as extreme as the circumstances will allow. This can have an ‘anchoring’ effect on the perceptions of the other side and influence them to make a less extreme opening offer than intended. As an illustration the seller of the Le Creuset set might reflect, ‘I was going to ask $2000 for these well-loved French classics, but they got in first and offered only $800 so perhaps it would be wiser for me to ask for $1600.’ Thus the first person to offer a price influenced and anchored the financial parameters of the negotiation. However, if an opening offer is too extreme there is a risk that the other party will walk away or attempt to re-anchor with an equally extreme response. 7.22 Alternatively, some parties will resist making the first offer as they wish to work out what their opening should be in light of the other side’s opening bid. They therefore wait for the other side to make the first offer so that they can calculate at what level they should open so as to make the point of final compromise more favourable to them than to the other party. Thus the seller could reason, ‘They only offered $800, so now I know that I should begin at $1800 and not $1600 so that I have more “concession-making space” up my sleeve with which to force up the price. ’Which of these differing approaches a party adopts will be determined by a number of factors, including their perception of how powerful they are in relation to the other.

7.23 Mediators may have no control over who makes the opening offer in a mediation. However, they need to be aware of the different approaches and tactics that may be operating. Normally there is not a problem in having one of the parties make the first offer in positional bargaining. Occasionally both parties adopt the delay strategy, the defendant saying, ‘Tell me first what you want’, and the plaintiff saying, ‘Well tell me first what you are prepared to offer’. Where neither is prepared to begin, some mediators suggest that both parties give their first offers confidentially to the mediator, without knowing what the other is offering, and the mediator then exchanges them between the parties at the same time. In [page 208] this arrangement there are no ‘first’ offers, only two simultaneous offers with neither affected by the other.

The type of opening offer 7.24 Before referring to the various types of opening offers in positional bargaining, it is useful to elaborate on two concepts referred to above, namely the ‘insult zone’ and the ‘credible zone’. In Figures 7.1 and 7.2, the ‘insult zone’ refers to points above the resistance point (RP) of William and below the resistance point (RP) of Kate which would be insulting to the other party. Thus a claimant may say to a respondent who makes an opening offer in the insult zone, ‘You have offered me so little that it is a joke; I am leaving, let me know when you are serious’. The ‘credible’ zone begins where the insult zone ends, though there can clearly be no precise point of differentiation between the two. 7.25 There are two ways in which parties can open positional negotiations: 1. With high/soft or low/soft opening offers, where a party’s opening offer is as far from their preferred outcome (the points PO(W) and

PO(K) in the figures) and as close to the insult zone as possible (the points RP(W) and RP(K)). Here the expectation is that both parties will move off their high/low opening offers to a series of more reasonable positions during the course of the negotiation — in this sense their first offers, whether high or low, contain ‘soft’ numbers. 2. With reasonable/firm opening offers, where a party’s opening offer is close to both their preferred outcome and resistance point (that is the relevant party’s PO, OO and RP points are close together). Because this is regarded as a reasonable proposal by the relevant party they stick to it firmly and there is little scope for concessions in the negotiation. In this sense, the figures contained in the offer are ‘firm’. 7.26 There are several potential roles for mediators in relation to the types of opening offers. They can educate the parties about the different kinds of openings and explain their implications. Thus a claimant who has made a high/soft offer needs to understand why the reasonable/firm approach of the other side leaves the impression that he is making all the concessions and feels as though he is negotiating against himself: see case illustration below. Mediators can point out to the parties the problems of opening in the insult zone, for example that it may cause the other party to walk out, or lead to a reciprocal insulting offer from the other party, or give them the reputation of negotiators whose first offers need not be taken seriously. Mediators can further educate clients who are unfamiliar with the low/soft strategies of some large defendants, such as insurers and governments, to advise them not to allow this to exacerbate the conflict: ‘Yes, I can see you are aggrieved by their offer, but don’t worry, most corporate players start like that; it’s part of a standard negotiation strategy. If you hang in for a while, they are likely to improve their offer.’ [page 209]

Case illustration: Mortgages R Us and different negotiation strategies In Darwin a debt-recovery mediation was conducted between two parties, Len, the Manager of Mortgages R Us, and Danielle, the borrower. The positional bargaining was initiated by Len, who suggested that Danielle could make reduced repayments of 80 per cent of the value of her interest and capital repayments for the remainder of the year. After this initial offering, Len made four further concessions, finally suggesting repayments of 65 per cent for a fixed period of 36 months. Danielle initially stated that she could offer to pay 50 per cent over the entire mortgage period and not a cent more. Throughout the whole morning session, Danielle remained firm on her offer and did not move from this position. At this point the mediator called for a caucus and Len revealed that he was agitated that Danielle was not prepared to play fair and that he had been forced to ‘negotiate against himself’. The mediator explained that Danielle was following the ‘reasonable/firm’ system and this allowed Len to begin to understand Danielle’s position more clearly. In the joint session Len displayed more patience with Danielle and this allowed both parties to make some small concessions before they finally settled. To avoid this problem mediators can educate parties who are adopting the reasonable/firm approach to signal this fact, for example by saying, ‘After careful consideration, and in light of all the circumstances, I am asking to make adjusted repayments of 50 per cent of the current monthly repayments …’. Some lawyers hold themselves out as reasonable/firm negotiators who only ever make ‘one offer’.

The timing of offers and acceptances 7.27 There is a negotiation saying that ‘The right offer at the wrong time is the wrong offer’. Despite being rather simplistic, the maxim is

useful to bear in mind. Where a negotiating party receives a ‘favourable’ offer too early in positional bargaining there is a tendency to devalue what the other side has offered (called ‘reactive devaluation’) and to attempt to secure something additional from the negotiations. This might involve them backtracking and trying to recover even more than they initially sought. Thus in the used Le Creuset cast iron cookware illustration above, if the purchaser were to offer the seller the ticket price of $1800 immediately on seeing the French cookware set, the seller might decide that he had asked for too little and should have asked for more: ‘I was going to accept $1500 but the offer of $1800 suggests the set is more valuable than I thought.’ The seller’s reaction might be to explain that of course the price did not include the significant accessories, for which he would require an extra amount. 7.28 The same principle applies to the acceptance of offers. Where an offer is, in the perception of the offeror, accepted too eagerly by the offeree the former may likewise have second thoughts about the wisdom of their offer and attempt to complicate the negotiations in other ways. Thus in the Le [page 210] Creuset example, if the purchaser offered $800 and this was immediately accepted by the seller, the former might become suspicious about the quality of the goods: ‘He seemed to jump at that offer rather quickly, perhaps I should take things a bit more cautiously here.’ We have encountered commercial negotiators who, in conscious or unconscious application of the above maxim, deliberately idle away some time before making or accepting offers. They are waiting for the timing to be ‘ripe’. While this is hardly an exact science, mediators can discuss with the parties the possible implications of making offers or accepting them at particular times in the negotiations.

Ways of responding to claims and offers

7.29 Negotiations are complicated systems of actions, reactions and interactions. Where a negotiating party is unhappy with a claim or offer there is a risk that he or she will react in a retaliatory way and exacerbate the conflict. For example in the debt recovery mediation involving Len and Danielle, referred to in the preceding box, Danielle’s claim to make repayments of 50 per cent of the total repayment sum could invoke a strong negative reaction from Len. The mediator can adopt strategies to avoid problems in situations such as these and can assist a party to make the rejection of an offer in a constructive way. Thus the mediator may suggest that the response be made in a way that identifies the level of principle at which there is agreement, before rejecting the detail: ‘Well, I accept that you are not able to meet the full repayments, but I cannot agree to reduced repayments of 50 per cent at the moment.’ Alternatively, where there is only a partial rejection, the form of the response could identify first the areas of agreement and then specify what is being rejected: ‘Well, I can agree to allow you to make reduced repayments for the next 36 months, but we need to do more work on the final percentages.’ Mediators can also coach the parties in the art of informing each other why an offer is being rejected so that the rejection can be better understood: ‘The reasons why I would not be able to accept repayments of 50 per cent are because the loan was for a substantial amount of money, you only took out the loan a year ago and such a significant reduction in repayments would extend the loan repayment period beyond a reasonable term and probably well into your retirement.’ The reasons provide an indication of what the offeror needs to work on (in the last example, the amount and number of repayments), in order to persuade the offeree to accept.

Ways of packaging offers and presenting offers 7.30 Because of the difficulties referred to in the previous section, mediators should consider assisting the parties to package offers and counter-offers in the most constructive way in the first place, in order

to avoid negative reactions from the other party in the second place. Thus, for the reasons [page 211] already explained, any offer should be accompanied by an explanation and not consist of cold hard figures alone. The explanation serves to give some ‘rationality’ to the offer and creates an opening for the offeree should they wish to respond constructively to it. Likewise the offer should be packaged in such a way that the most palatable parts are heard or seen first and those least attractive to the other side are presented last. This is sometimes referred to as ‘giftwrapping’ the offer and is particularly feasible where the mediator is shuttling offers and counter-offers between the parties when they are in separate rooms. Thus the mediator in shuttle might say, ‘Danielle, when I tell Len about your request for 50 per cent repayments, it would be helpful if I could first indicate what you would agree to in relation to his points about the period of time in which he is willing to accept reduced repayments, before disclosing your actual repayment figure to him.’

Patterns of concession-making 7.31 Reference has been made above to some of the patterns of concession-making in positional bargaining. It was indicated that where the concessions are equal in size, more might be expected, whereas where they are decreasing in size, that party might be reaching their limit. Where a larger concession follows smaller ones, this might indicate a last desperate attempt by the conceding party (or mere confusion). Mediators should always keep a written record of the parties’ concessions. They can be the honest keepers of accurate figures. This will assist them assess the extent to which the parties might be approaching their resistance points. It can also be used to show one party how much the other has conceded — it is a common feature of

negotiations that each party feels that they have conceded more than the other and objective facts and figures can be used to challenge this perception. Thus in the above scenario the mediator might say, ‘You might not realise this, Danielle, but Len has come down from demanding an 80 per cent repayment claim at the start of the mediation to one of 65 per cent now. That’s a 15 per cent shift, not to mention the extension of time.’

Dealing with the tactics of positional bargaining 7.32 The NMAS Practice Standards require that mediators are familiar with the predictable tactics associated with positional bargaining. Section 9(4) provides: The mediator should … understand how manipulative or intimidating negotiating tactics can be employed by participants.

As suggested earlier, these tactics include: Bluffing, intimidation or threats by the more powerful party: ‘Danielle, if you don’t wake up and smell the coffee I’ll send the repossession guys round to kick you out and you’ll be sleeping in a tent as of next month!’ Personal attacks: ‘Danni, you’re not the sharpest tool in the box, love, so stop trying to play smart, otherwise things are going to get very unpleasant!’ [page 212] Stonewalling and refusal to make concessions: ‘Len, what I am offering here is more than what I can afford; there’s no way that you are going to squeeze another cent out of me!’ Data manipulation regarding facts, figures, evidence and other relevant factors: ‘Danni, times are hard, love! The economy is on its

knees and we’re just trying to hang on in here. What with the increase in inflation and interest rates — it’s just breaking my back.’ Last-minute add-ons, where a negotiator makes a request on an item that hasn’t been discussed before: ‘Okay, okay, I’ll sign the flaming agreement, Len, but only if you give me a Titanium credit card account.’ The ‘phantom’ trade, in which a negotiator pretends that an issue of little importance to them is of great value when conceded: ‘Well, what I really wanted was a Mortgages R Us digital alarm clock, Len, but I suppose that doesn’t really matter if you fix me up with a Premier Customers Club card instead.’ A deliberate claim of lack of authority, aimed at imposing pressure or gaining an adjournment: ‘Well, that looks fine in principle, Danni, but I first need to ask my wife, Maureen — she’s actually the owner of Mortgages R Us; I’m just the manager.’ Imposing unreasonable or sudden deadlines: ‘Look, Danni, I am a very busy man — I need to take the kids to swimming in 10 minutes, so I need an answer now. Is it yes or no to repayments of 65 per cent?’ Calculated delays and silence: for example delaying counter-offers, taking an inordinately long time for private client-lawyer consultation. 7.33 As with their other functions in the mediation process, mediators have a range of tools in their toolboxes for dealing with these tactics. It will be a question of judgment as to which is appropriate, and there can never be any certainty that a specific intervention will work. Mediators need to use the strengths of the mediation process and their understanding of negotiation to attempt to counteract the use of these tactics. By way of example, they might: Point out the downsides of a particular strategy, particularly in the separate sessions: ‘You know, Len, in my experience those kinds of threats normally make the other side even more resistant. ’Alternatively, ‘Len, from what I have seen in the past, that’s likely to be countered with an equally bullish response.’ Anticipate some of the tactics and attempt to pre-empt them by

alerting the parties generally to their possibility: ‘Okay, Len and Danielle, we are now getting much closer to reaching a final agreement. So to avoid any late surprises could you advise each other at this point whether you wish to raise any matters that are not already on the agenda?’ In relation to the imposition of sudden deadlines, the mediator might say at the beginning of the mediation, ‘We have all agreed to set aside [page 213] seven hours for this mediation. Can I confirm everyone’s commitment to this time frame?’ Enforce the mediation guidelines and intervene strongly when they are breached: ‘Listen, Len and Danielle, at the start of our session you agreed that you are both committed to resolving this matter in a civil manner and that you would not use threatening behaviour or intimidation. Could I ask you both at this point to reconfirm that you are willing to proceed with the mediation following these principles?’ Identify the tactic (‘name the game’) as a way of shaming the relevant party: ‘Danielle, earlier today you mentioned trading a digital alarm clock for a Premier Customers Club card. This does not sound very realistic to me. Do you think it’s wise to persist with this request?’ Use separate meetings to ascertain how the targeted party is dealing with the other’s tactics: ‘Danielle, Len seems to be in a rush to reach an agreement. How do you feel about this and what can we do about it?’ In this regard note the NMAS Practice Standards s 9(5) which states: … if a participant needs either additional information or assistance, the mediator must ensure that participants have sufficient time and opportunity to access sources of advice or information.

Ask for a party’s reasoning for a tactic; or how a demand, stance, position or offer is supported or rationalised. Probe for details. ‘Len,

that’s an interesting claim you’ve put forward. Tell me about how you arrived at this amount.’ Encourage interest-based negotiation techniques: in private session, ‘Danielle, we have been throwing around different options for a while now but you don’t seem to like any of them. Let’s put them to one side for a moment. Tell me, what’s really important to you in all of this?’ Remind parties of progress made and their aims and objectives. Assist the parties to assess the alternatives should an agreement not be reached at mediation: ‘Len, let’s just take a minute to pause and review the progress made so far … How does that fit with the objectives you outlined earlier …? If for some reason you weren’t able to walk out of here today with an agreement, what would happen? How could those objectives be achieved? Or would they have to be abandoned?’

Creating doubt 7.34 While the mediator is not negotiating as such with the parties, he or she may become involved in the ‘doubt creation’ tactics associated with positional bargaining. The object of creating doubt in a negotiating party’s mind is to cause them to move off their current positional claim to one that is more likely to result in settlement. There can be doubt creation over the facts, over evidence, over rules and precedents, over likely court outcomes, and even over the personality and behaviour of the other party. This is also referred to as the mediator acting as the ‘agent of reality’. Some of the ways in which the mediator can exercise the doubt creation function are discussed in 8.13-8.15. [page 214]

Mediator’s Role in Promoting Interest-based Bargaining

7.35 Much mediator training and mediation literature focuses on the roles and functions of mediators in shifting the parties’ negotiations away from positional and towards interest-based bargaining. Mediation shares the same assumptions as this form of negotiation, and some mediator guidelines require mediators to promote ‘interestbased bargaining’. Interest-based negotiation is encountered in mediations involving partnership conflicts, business disputes, organisational conflict, planning disputes and parenting disputes, and in many other situations in which there is an ongoing relationship between the parties. To support an interest-based negotiation approach mediators typically assist parties to prepare for the mediation by identifying their interests (what is important for them), ascertaining objective standards that may be relevant to a solution, and considering a range of possible options for resolution as well as alternatives to settlement. This information can be incorporated into a mediation memo as described in Chapter 4.

Focusing on interests instead of positions 7.36 The following scenario will be used to illustrate points made in this section. Case illustration: Belinda and Bill A dispute has arisen between Tech-Savvy Corp Ltd (TechSavvy), a large software corporation in Sydney, and the top senior client adviser, Belinda Mates. Belinda is extremely well known in the international software business and has been with the company for more than five years. She now intends to set up her own software company as a sideline business that will be based in the same office tower as Tech-Savvy. When Bill Ng, the CEO of Tech-Savvy, became aware of Belinda’s plans, he immediately stopped Belinda’s salary claiming that she had breached the terms of her employment contract. According to Belinda, however, there is no clause in her contract which would

preclude her from engaging in any other employment or conducting business outside of her regular employment with Tech-Savvy. Bill and Belinda agree to come to mediation. 7.37 The distinction between the terms ‘positions’ and ‘interests’ has been explained already: see 4.11-4.16. It was shown that positional claims can easily lead to impasses and can obscure what people really want. Shell (2006) points out that skilled negotiators spend up to four times the amount of time thinking about the needs and interests of the other parties than average negotiators. [page 215] Mediation provides a process in which the focus can be changed to the underlying interests, that is the motivating needs, desires, priorities, concerns and fears of the parties. When the focus shifts to interests, the problem becomes better defined and better understood by all concerned. The disclosure of interests also reveals what is really motivating the parties and what is preventing a resolution of the dispute. As people are motivated mainly by self-interest, this approach opens the way to dealing with the dispute creatively in terms of the parties’ own priorities. The main stratagem of interest-based bargaining is to put more ‘negotiating chips’ on the table, to create value in the negotiations before value is claimed or to make the ‘negotiation pie’ bigger before it is cut up: see 7.5. Additional negotiating chips may be added by: identifying shared goals or interests to encourage the parties to move on to find options to meet those goals or interests; searching for differences in priorities or time frames, which can be used to facilitate a trade-off; allocation of risk depending on each party’s level of risk tolerance: Mnookin et al (2000).

This approach seeks to avoid the tensions that can arise where value claiming impedes the creation of value and where value creation risks exploitation by value claiming tactics: Lax and Sebenius (1987 and 2006). Thus where the parties make positional claims over money, an interest-based approach would seek to disclose the interests underlying that claim and make them objects of negotiation. In the above scenario between Belinda Mates and Tech-Savvy (Bill Ng), the ‘chips’ could include: Belinda Mates retaining her professional reputation; Tech-Savvy saving face in the industry; restoring a positive business relationship between Tech-Savvy and Belinda Mates; Tech-Savvy needing to avoid precedents being set in relation to other employees who may want to leave and set up competing business; keeping international links with current worldwide clients through Belinda Mates; keeping open opportunities for future business relationships between the parties, for example opportunities for Belinda to offer consulting services to Tech-Savvy; Belinda Mates generating sufficient income to pay the high rents in the office tower where she intends to set up shop; and a quick and confidential settlement for both parties. These multiple interests, dealing with the present and the future, provide a more constructive basis for fashioning a negotiated settlement than the single-issue obsession with financial damages. [page 216] 7.38 The role of the mediator is therefore to try and get the parties to negotiate in terms of their own and each other’s interests. One way in which the mediator can get the parties to focus on their interests is to ask them why a position is important to them. The mediator can also

help the parties try to persuade each other on the mutual benefits of requests, rather than try to convince the mediator of the justice of their cause. In some cases the mediator might be able to point out why certain settlement options could in fact be in both the parties’ interests. Thus in a family mediation, the option of having child support paid directly by the contact parent to the resident parent, rather than through the Child Support Agency, could satisfy different interests of both parties: the resident parent obtains the funds sooner and the contact parent avoids administrative complexities.

Understanding interests 7.39 Understanding interests also requires the mediator to assist the parties to sort and prioritise their interests. By identifying areas of common ground, parties are more likely to work towards proposals that meet those common interests. In the case of divergent interests, or different values placed on the same interests, trade-offs are possible. For example one party might value the amount of payment, the other the form or timing of payment. In a dispute between a company and one of its departing executives, the company might be willing to pay $300 000 in severance provided that it is payable in shares but less than $300 000 if the severance is paid in cash. If the executive has no preference between cash and shares, both sides benefit from a severance in shares. To help parties identify and understand each other’s interests, mediators might also resort to ‘role reversal’. This involves the mediator asking one party through a series of questions to imagine himself or herself in the position of the other party so that he or she can better understand the other party’s interests. This can be uncomfortable for some parties and might be resisted. Explaining the benefits of role reversal might overcome intransigence.

Considering creative settlement options 7.40 Mediators can encourage the parties to be creative in fashioning their settlement outcomes: see also 7.5. In order to be creative there

needs to be a broad consideration of possible settlement options. This involves three facets: first developing options, second evaluating options and third selecting options. This rarely happens in an orderly textbook fashion but there is an important underlying principle: good negotiation requires expansionary thinking before contractionist thinking takes place. Mediators can educate the parties about this principle and its possible applications. Thus in the distribution of property, in a matrimonial or partnership mediation, a positional approach might lead to a crude 50:50 division, whereas a creative interests approach could allocate specific chattels, assets or other forms of property to the side which places the most value on them. [page 217] 7.41 There are a number of strategies for assisting the parties to be creative in developing options. Thus mediators might use a direct strategy in asking the parties, in the above scenario, ‘Bill and Belinda, can you think about and suggest possible options?’ They may do it analogously, by asking, ‘Belinda and Bill, can you think of ways in which other people have dealt with the problem in question?’ Or they may proffer a contribution themselves by saying, ‘I can share some creative ideas with you about what others in similar situations have considered …’: Haynes and Charlesworth (1996: 41). Other techniques for encouraging creativity include: use of analogy and metaphor; use of concepts and ideas from other disciplines; interacting in a safe space away from ‘business as usual’; use of role reversal; taking time for silence, breaks and ‘staring into space’ (apparently Albert Einstein was well known for spending hours upon hours staring into space in his office — and he was certainly a good problem-solver); using multiple intelligences, for example conduct private sessions while going for a walk with each party or get the parties to draw or map out options (see 3.20 );

challenging assumptions with curiosity; encouraging parties to visualise options; and reframing problems from a different perspective. There are several factors that might make it difficult for the parties on their own to develop options creatively. One is the assumption that there is only a single answer to the problem, a second is the perception that there is a ‘fixed pie’ to negotiate over, and a third is the tendency for a party in dispute to judge negatively options mentioned by the other party (called ‘negative transference’).

Brainstorming 7.42 Brainstorming is one technique designed to overcome these obstacles and to assist the parties to think creatively and constructively about settlement. The objective of brainstorming is for the parties to develop and consider a wide range of alternatives for resolving the problem at hand. In brainstorming, parties are invited to think creatively and laterally and to propose settlement options, however unrealistic they might be, without having to justify or defend their suggestions. Other parties are not allowed to comment on, evaluate or criticise the option so as to reduce defensiveness and inhibitions and to provide for riskfree ideas without any party being committed to specific proposals. The technique is designed to get the parties to feed off each other’s insights and to illustrate the wide number of conceivable ways of dealing with the problem. [page 218] The guidelines for the first stage of brainstorming are as follows: all ideas, without exception, are allowed; parties are encouraged to feed off one another’s ideas; no interruption or criticism of others is permitted;

no evaluation or ranking of options is allowed. During the second stage of brainstorming the parties: categorise the options into relevant groups; develop some interest-based criteria for evaluating them; discard the worst options, in terms of those criteria; undertake a cost-benefit analysis of the best options. 7.43 In the context of a mediation, the mediator can suggest brainstorming as a way of moving forward when the negotiations have bogged down. When the first stage of brainstorming is complete, the options can be evaluated and selected in terms of their desirability, practicality and cost. Even where this brings the parties back to the unpalatable option first thought of, this option is shown to be the only realistic one in the circumstances and it therefore acquires more credibility. For a case illustration of brainstorming, see 5.62. In the dispute between Tech-Savvy (Bill) and Belinda, brainstorming could lead to a range of creative options. For example it could be agreed that Belinda establishes her own business but at a different location identified by Tech-Savvy and at a cheaper rent, which Tech-Savvy was able to negotiate using its market-based negotiation power. In addition Belinda will be engaged as a consultant to Tech-Savvy on a 50 per cent basis for one year. The parties also identified areas of potential work that Belinda would not wish to undertake as a solo consultant and Belinda agreed to offer these first to Tech-Savvy on a subcontracting basis.

Separating people issues from problem issues 7.44 During the course of negotiations personality factors and destructive emotions frequently become entangled with the objective merits of a dispute. Each party portrays the other negatively, dubious motives are attributed, and personal accusations and recriminations occur. Even where there is a negotiated settlement, ongoing relationships may be seriously damaged by the destructive

exchanges. 7.45 The mediator may decide that it is necessary to deal first with the ‘people’ side of the problem before the substantive issues can be considered. This may involve acknowledging, validating and giving face to each side. As Fisher, Ury and Patten (2007: 32) put it, ‘Be hard on the problem and soft on the people’. Mediators can provide a lead in showing respect for all parties and in acknowledging deep-seated emotions. Ideally this will lead to a situation in which the disputants stand aside from the interpersonal aspects of the dispute and see it as an objective problem outside of themselves. If this happens, they can build a working relationship and jointly face a common task. [page 219] 7.46 A mediator can use the following techniques in attempting to achieve this joint working system (with reference to the dispute between Tech-Savvy (Bill) and Belinda at 7.36): Using an appropriate metaphor to describe the mediation process (see 2.5), for example: ‘Bill and Belinda, we are here to put the pieces of the jigsaw puzzle in place and I shall help you do that together …’ Setting up the room and other aspects of the environment to symbolise the fact that the parties should collaborate against the problem and not engage in armed combat with each other, for example using a round or oval table. Using the whiteboard or butcher’s paper to focus the parties’ attention on the ‘problem’ and away from the personal antagonism: ‘Belinda and Bill, we are trying to look for answers to the fourth question here on the board — what could be done about maintaining a cordial, professional relationship in the future?’ Using appropriate terminology and language to emphasise the mutuality of the problem and the need for both parties to resolve it: ‘Bill and Belinda, what can we do about ensuring that the reputations of the corporation and of Belinda as a senior

international consultant in the industry are maintained?’ Reframing from personal (Bill says, ‘Belinda has always been very secretive about her dealings with clients’) to external behaviour (Mediator says, ‘So in the future you would like Belinda to consult with you more in relation to the work she is doing for clients?’). Changing the process, for example calling separate meetings and saying: ‘Bill, Belinda seems to be reacting negatively to your personal comments about her; can we look at ways of overcoming that?’

Using external standards for justifying proposals 7.47 Much negotiation involves a battle of wills. Each side attempts to persuade the other to accept their particular set of facts, values, perspectives or sense of fairness. Where one side can persuade the other to accept these factors there will be a settlement, but where they cannot there will be a deadlock. Even where the criteria advanced by one party are ‘objective’ they can be contaminated by the fact that they come from the ‘opposition’. 7.48 Ideally mediators should help the parties apply criteria that are independent and external of either of them for justifying a particular option or settlement proposal. The criteria can include: market value, custom and policy within an organisation, normal business practice, industry standards, legal rules and the like. The main advantage of these objective standards is that neither party feels that they are ‘giving in’ to the other; they are merely acceding to external norms. Other advantages [page 220] are that it is more difficult for parties to resist the notion of an objective standard applicable in similar situations, and it provides some protection to weaker parties.

7.49 Mediators can attempt to introduce external criteria into the negotiations in several ways. They can educate the parties about their usefulness, can suggest that they consider appropriate objective standards by which to evaluate settlement options, and can explore with the parties ways of obtaining outside input on relevant criteria. In the scenario being referred to in this section, a mediator could encourage the parties to consider external criteria such as standard employment contracts for senior advisers, market rates for commercial leasing, industry rates for ‘external’ consulting fees, and applicable professional codes of conduct for Belinda and Bill. Where there are two sets of ‘objective’ criteria provided by different specialists such as engineers or doctors, the mediator is faced with the problem of ‘duelling experts’, a problem dealt with elsewhere in this book: see 10.39-10.43.

Deciding among options 7.50 When deciding among the options available at mediation, parties will also need to consider the alternatives to achieving a deal at the mediation. Without knowing those alternatives (best and worst alternatives to a negotiated settlement: BATNA and WATNA), parties will be making decisions at mediation in the dark. Mediators can help parties investigate and prepare realistic alternative scenarios to settlement. This will often involve some education on these aspects of negotiation. Alternatives are to be distinguished from ‘resistance points’ — sometimes referred to as ‘reservation points’ or ‘bottom lines’: see Figures 7.1 and 7.2. Alternatives also differ from ‘preferred outcomes’ — sometimes referred to as the ‘aspiration levels’. Typically, a party’s resistance point is better than its BATNA; if the resistance point was worse than BATNA, then it would not make sense for a party to reach an agreement at its reservation point. A party’s preferred outcome is usually much higher than its BATNA. For example: BATNA — ‘The court will order a 50 per cent split in the assets.’ Reservation point — ‘I will accept 55 per cent to take account of the costs I’ve expended to date.’

Aspiration level — ‘I want to aim for 65 per cent as a preferred outcome as I feel I contributed more than he did.’ The analysis of BATNA is more complex where the alternative is litigation. To determine whether it is in a party’s interests to pursue the litigation route, consideration is necessary of the risks, costs and benefits of that alternative. Risk analysis is considered in further detail in the next chapter. [page 221]

Special Techniques in Negotiation 7.51 The following techniques are potentially appropriate for all kinds and styles of negotiation and their use is a matter for the mediator’s wise discretion. The illustrations below (7.54-7.57 ) are made in relation to a franchising mediation between Simon, the franchisor, and Julie, a franchisee, where it is common ground that the two wish to continue to work within the franchise arrangement in the future provided that they can reach a solution at the mediation.

What’s in a (re-)frame? 7.52 Psychologists tell us that once a negative emotive association has been made in relation to a person, it is difficult to change it: BBC (2008). Thus in a dispute context, negotiators may respond negatively to options generated by the other side, even where the options would be considered constructive from the perspective of an impartial bystander (such as a mediator). This phenomenon is called ‘negative transference’. For mediators this is an opportunity to use reframing to ‘translate’ what one party has said to the other in a way that maximises the scope for a useful negotiation exchange between them. Sometimes the simple fact that one party’s offer is summarised and presented to the other by an impartial and well-respected mediator is sufficient to

dispel negative transference. However, it is not just about who sends the message. A party’s assessment of the risk associated with an offer will be a product of their affective associations. Thus the (re-)framing of arguments, objections and offers will directly influence how one party responds to the other.

The psychology of reframing 7.53 Mediators are advised to consider the following psychological factors when reframing to enhance negotiability: adapted from Alexander and Howieson (2010: 197-200). All decision-making is emotional. Whether you are negotiating about a major commercial investment or parenting arrangements after a marital separation, smart decisions will be informed by both rational and emotional thinking. Emotional thinking is intuitive and often involves wisdom that has not been subject to rational calculation. Here mediators may reframe to ask parties at appropriate junctures how they feel about certain options, use empathetic statements, and ask miracle questions about the future: see 6.47. Decisions are affected by the frame of certainty. People feel safe (emotive value) with certainty and attach considerable importance to it. Here mediators may reframe to introduce the added value of ‘certainty’ into negotiation trade-offs. [page 222] Decisions are affected by the framing of choices: positive or negative. This means that most people will take a risk to prevent a loss but will not take equal risks to secure a gain. Therefore mediators might reframe to highlight losses that can be prevented by settlement such as costs associated with litigation (and the chance of losing the case).

Predispositions of negotiators or parties are relevant. For example pessimists tend to focus on risk while optimists tend to focus on opportunity. Mediators need to factor this information into their framing so that optimists also take account of the risk and pessimists of opportunities. People find it difficult to say no to choice. Mediators can coach parties to frame their ideas and offers as a series of choices so that they are more attractive to the other side (and more difficult for them to say no). Alternatively, mediators can use reframing and summarising techniques to highlight the choices that have been put on the table throughout the mediation. Ownership can change a person’s valuation of a commodity. Once people own something, they place a higher value on it than the amount they would be willing to pay to acquire the same item. This is one reason why home owners tend to think their house is worth more than prospective purchasers do. Here mediators can reframe using external and objective criteria: see 7.47-7.49. Decisions affected by summing gains and losses. A series of smaller gains is valued more than a single gain of the same amount. Consistent with this principle, people feel they lose less value by one large loss than by an identical loss suffered in multiple smaller parts. Mediators can therefore reframe a total sum gain into different parts to enhance its attractiveness to a party. Conversely, mediators can reframe to bundle different losses together to make the overall loss more palatable to a party.

Reframing to enhance ‘negotiability’ 7.54 Reframing (see 6.39-6.45 ) has particular application in the fiery crucible of negotiation. Here it has the objective of reorienting the parties’ perceptions towards a more ‘negotiable’ view of the problem. There are many possibilities, of which the following are just examples: Where a negotiator makes blanket demands (Julie says, ‘I need more training and assistance to be able to cope with the new demands of the franchise’) the mediator can focus them on the underlying needs which would be served by the training and

resources: ‘Tell us what the demands of running the franchise are over a weekly period and how training would assist you in coping with them’). Where a party is continuously complaining about what they do not want from the negotiations, the mediator can reframe to focus them on [page 223] what they do want from the process: ‘Julie, don’t tell Simon what you don’t want him to do when you bring problems to him, tell him what you do want him to do.’ Where a party talks only in broad generalities (Julie says, ‘The franchisor never follows through his good ideas with action’) the mediator can focus them on the specifics (‘What do you mean by “never”? Can you give some examples of the good ideas you are referring to and what do you mean by action?’). Where a party is focused on the past, the mediator can refocus them on the future: ‘Simon, you’ve told us about some of the challenges you’ve faced in managing franchisees in the past; now tell us what a good working relationship between you and Julie would look like in the future.’

Issue proliferation 7.55 In many negotiations there appears to be only a single issue at stake — which is often the question of how much money should be paid by one party to the other. In these situations mediators require techniques to get the parties to identify and deal with other issues as well. This is referred to as issue proliferation or issue enlargement. The additional issues could be substantive, procedural or emotional. They might include intangible factors such as positive publicity, confidentiality to avoid embarrassment and future business dealings. Multiple issues are easier to bargain with than single issues. They provide more scope for trade-offs, reciprocal concessions and

packaging, and are less likely to result in the dreaded ‘last gap’ that is often difficult to bridge. 7.56 This principle can be illustrated in relation to money claims. Assume in the above franchising scenario that all matters have been settled, except for a monetary payment to the franchisor Simon that is outstanding under the terms of the franchise agreement. Here the mediator should be alert to potential sub-issues that can be added to the main issue in question, namely the dollar amount to be paid. The sub-issues could (with some poetic licence in this scenario) include: timing of payment (immediate, 21 days, and so on); method of payment (electronic, bank cheque, cash, payment in kind); nature of payment (lump sum, instalments); variations with instalments (number, quantum, timing); place of payment (local, Samoa, Zurich); effectiveness of payment in relation to taxation; security for deferred payments; interest to accrue on default of deferred payments; legal and other professional costs; the mediator’s fees: see case illustration below. [page 224] 7.57 While all these issues will be subordinate to the central issue of the amount of money to be paid, they may constitute sufficient value to one or both parties to be helpful in reaching an agreement on the dollars. They also allow the party making the final monetary concession to save face through being able to prevail on a lesser issue. Thus Julie might reason as follows, ‘I had to accept Simon’s final offer on the amount I owed under the terms of the franchise agreement. He did come down a bit on the actual figure and agreed to let me defer the payments and then pay in a series of instalments. I don’t mind putting my car up as security for that … if he insisted on the money now, I’d have to sell it anyway.’ All disputes can be converted

into multiple issue disputes to some degree. Case illustration: Designer shoes and issue proliferation In Melbourne a dispute had arisen between Ailsa Yu, a regular customer of Swanky-Town Bistro, and PierreVictoire, the owner of the new hip and trendy downtown French restaurant. Ailsa had been entertaining clients one Thursday evening when she sustained injuries to her right ankle and head after the heel of her new Banolo Mlahnik designer shoes worth $4000 jammed in a crack in the stairs leading down to the private bar. Ailsa and Pierre agreed on a figure to cover the medical expenses Ailsa had incurred as a result of her injuries but could not agree on the issue of Ailsa’s damaged shoes. Ailsa argued that Pierre should compensate her for a new pair of Banolo Mlahniks and Pierre countered that her shoes were ridiculously over-priced and that he would only be willing to pay for the repair of the damaged heel of the right shoe. There were no sub-issues on the table. After a short adjournment in the mediation, Pierre asked the mediator about the total fee if they would be able to reach agreement within the hour. The mediator referred to the Agreement to Mediate and confirmed that the fees would be around $1900, whereupon Pierre offered to pay the full mediation fee instead of the normal 50:50 fee-sharing arrangement. Touched by this, Ailsa responded by accepting Pierre’s prior offer to pay for the repair to the damaged heel. The sub-issue of the mediator’s fee had created additional ‘value’ to allow the parties to cross the last gap, despite the fact the fee amount was considerably smaller than the gap itself. It might, however, have allowed Ailsa the emotional satisfaction of being able to say, ‘He caused the damage to my shoes and was responsible for the humiliation I suffered falling down the stairs in front of Melbourne’s A-listers, so at least he was obliged to pay for the mediation. I can live with that.’

‘Forcing the issue’

7.58 Where there are a number of negotiating items and the parties are moving through them one by one in a positional way, the mediator might decide to ‘force the issue’, either because little progress is being made or because there is a serious time limitation. As with any other mediator intervention this requires some delicate judgment and there is always a chance that it will not work as intended. However, where the mediator makes this choice, he or she might move things along as follows. [page 225]

Case illustration: Forcing the issue and the case of the large luxury villa Following a complex residential tenancy dispute between the lessor of a large luxury villa, Penny Primrose, and the tenant, Robbie Billions, the following four issues remain unresolved: retention/return of deposit, replacement of adjoining wall between master bedroom and en-suite bathroom, return/ retention of goods left behind in the property (wine cooler, antique bureau and a Bosendorfer Imperial Grand Piano), and compensation for the restoration of the summerhouse from a sound-proof recording studio to a classical Victorian style summerhouse. The mediator noted these issues on the whiteboard in two lists, apparently in random order but with the goal of having the more important issues at the head of each list. Table 7.2 shows what this might look like.

Table 7.2: Remaining issues Compensation for the Retention/return of deposit. restoration of the classical summerhouse. Replacement of adjoining wall Return/retention of goods left

between master bedroom and ensuite bathroom.

behind in the property.

7.59 The mediator then indicates that each party will be asked the same questions. He or she points to the column on the left and asks Robbie which is the more important of the two issues in that column for him. If Robbie indicates the return of the deposit, the mediator then asks him whether, if his preferred option were accepted on this issue, he would be prepared to accept Penny’s proposal to replace the adjoining wall between the master bedroom and the en-suite bathroom. If there is an affirmative answer, the mediator asks the same two questions of Penny in relation to the second column. If both parties accept the proposals, it allows each to be successful on their ‘first’ priority and have their way on another issue, in a reciprocal package that is nominally equal to them both: Penny gets her way on the restoration of the classical summerhouse, and Robbie gets his way on the return of his goods which are still in the property. This avoids the feeling that one party is conceding to the other and prevents the problem of having one issue only left for negotiation. 7.60 Another way of ‘forcing the issue’ is to ask one of three different kinds of questions to each party. Each question has the same objective, namely to get the parties out of entrenched positions, to open up the negotiations and to get the parties to think in terms of trading off one preference for another. [page 226]

Forcing the issue The first way of asking the question: Mediator: I am now going to ask you each a similar question so that we can explore the scope for structuring a package here. Robbie, you have said that it is very important to you to have your deposit returned to you in full. Now what are you prepared to offer Penny to get her to agree with you on this point …? Now, Penny,

you have said that your proposal on restoring the classical summerhouse should be accepted, what are you prepared to offer Robbie to get him to agree to that proposal …? The second way of asking the question: Mediator: Now, Robbie, assume that I was the judge and I ordered that the return of the deposit was conditional upon restoring the property back to its original state. What do you think would be reasonable conditions to impose along those lines …? Now, Penny, assume that I was the judge and … The third way of asking the question: Mediator: Now, Penny, you have heard that Robbie would like his full deposit to be returned, which is not your preferred choice, but what would you need from Robbie to get you to agree with him on that issue …? Now, Robbie, you have heard that Penny … 7.61 In each case the mediator is using ‘dissonance theory’ to get the relevant party to consider and talk about options that are not immediately palatable to them: on dissonance theory see Dolores et al (2005: 502). It gets them to think about the issues from the other side’s point of view and to consider options that they have so far resisted. By articulating things from the other side’s perspective, it is not as easy for that party to hold rigidly to their own preferred position. (It could also result in the mediator being regarded as the ‘scapegoat’ — on which see 3.45.)

Shifting between principle and detail 7.62 Where the parties are stuck on matters of detail, the mediator can attempt to move the discussion to a more abstract level in order to achieve agreement ‘in principle’. For example in the dispute between Penny and Robbie over the modifications to the property and the summerhouse, the mediator might attempt to get the parties to agree in principle on the need for some restoration to be made. With the ‘in principle’ framework in place, the parties can then work on the detail of the extent of the modifications, the time frame for completion of the

modifications and the nature of the modifications, namely should they be done to restore the property back to its original form or to match the lessor’s classical taste. Conversely, where the parties cannot agree on matters of principle because it is seen as too abstract or too compromising, the mediator can attempt to move the discussion to a more concrete level and try to reach agreement on some of the details. Thus in the above example neither party might want [page 227] to agree to the ‘in principle’ arrangement and the mediator can then focus on the details of which party should arrange for the modifications to be made, the precise time frame in which various aspects of the restoration work should commence and finish and the specific style of restoration. In dealing with details, the parties might creep up to the level of ‘in principle’ agreement. In our experience the mediator’s ability to move the discussions between principle and detail is a significant way of keeping them moving productively.

Making more than one offer 7.63 Mediators often find it useful to encourage the parties, in particular defendants or respondents, to make more than one offer at an appropriate time. This gives the other side, usually a plaintiff or claimant, a sense of power and control through the choice, albeit limited, that is being provided. Thus in a matrimonial property mediation a party might be encouraged to say: I offer either 60 per cent of the asset pool based on my valuations, or 54 per cent based on your valuations.

In a mediation involving the payment of damages, the defendant might be encouraged to say: I offer $40 000 lump sum within 14 days and 24 monthly instalments of $4000, or $100 000 lump sum within 14 days and 36 monthly instalments of $1300.

Apart from the choice element that these offers provide, there can also be real value for a claimant who is not receiving what they really want from the defendant in dollar terms. They can at least opt for the scheme that is otherwise best suited to their needs, for example in relation to taxation or cash flow or what they will tell their children.

Bringing in reciprocity 7.64 Wherever possible the mediator should attempt to bring reciprocity into the bargaining process. This can be illustrated in relation to parenting disputes. A contact parent may insist on being notified immediately by the resident parent about any illness or sickness of the children, on receiving medical reports and on having access to the treating doctors. If this condition can be made applicable to both parties it is more likely to be accepted by the resident parent. This is because it is easier to commit to something if the other party is making the same commitment — it creates a nominal equality even though the arrangement is more significant for one side than it is for the other. The same principle can be applied to other common demands in parenting mediations, for example that the contact parent give written notice if they intend to take the children on holiday interstate or that the resident parent make their telephone number available to the other parent. In all these cases the request is more likely to be accepted if the obligation is made reciprocally binding on both parents. [page 228]

Linked bargaining 7.65 Linked bargaining involves the conditional coupling of one negotiation issue with another. It is sometimes called ‘conditional linked bargaining’, which highlights its two closely related elements. The first is the linking of one negotiation issue to another so that there is a package of two issues; the second is the conditional way in which

the linked issues are presented. It is best illustrated by way of example. Case illustration: Linked bargaining in a partnership dispute Consider the following mediation that is taking place between architects Samantha (called Sam) and Cathryn (called Cat) who are currently in dispute about the dissolution of their longstanding partnership. Sam, the managing partner, is claiming compensation from Cat for breach of the terms of the partnership deed. She claims that Cat has been conducting a separate business on the side and subcontracting her nephew Callum to carry out her partnership duties without seeking consent from Sam. Sam is also seeking possession of Cat’s Mercedes SLK as she claims it was purchased with partnership funds. For her part, Cat insists that Sam has terminated the partnership on unsubstantiated grounds and she accuses Sam of spreading defamatory rumours about her throughout the Perth architectural community. Cat believes that this has damaged her professional reputation and has seriously affected her professional standing and fee earning potential. She is counter-claiming and seeking compensation from Sam. The following dialogue indicates how linked bargaining could be pursued in respect of two of these issues. Mediator: ‘Cat, if you were to get a satisfactory outcome in relation to Sam’s claim for compensation, what would you be prepared to offer Sam in relation to the car?’ Cat: ‘Actually, if she was willing to drop the compensation claim against me then I might be prepared to come to some kind of arrangement with her about releasing the car to the business. I suppose that I did get it at a corporate rate after all.’ Mediator: ‘Okay, Sam, you’ve heard what Cat has to say about compensation and the car. If she is prepared to let the business use the car, is there anything that you could do about your financial claim for breach of the partnership deed?’

Sam: ‘Well I need to think about it. I suppose if she really is serious about making the car available to the business and she has it professionally serviced and valeted at her own expense, then I might be willing to reduce the compensation claim. I can’t write off all of it, but I suppose I could let go of some of it.’ [page 229] 7.66 This strategy is closely related to the ‘what … if ’ and ‘if … what’ hypothetical questions referred to above: see 6.49. Its objective is to free up some space in which either Cat or Sam might feel able to make an offer on one issue in the knowledge that it is contingent on their being satisfied on another. It is designed to open up the process without either side feeling that they are at risk. If Cat makes a constructive suggestion on the question of the car it will not constitute a unilateral concession and the mediator can then focus attention on the conditional factor, namely the compensation. Likewise if Sam concedes conditionally on the compensation issue, the mediator can focus on the car as a way of ensuring that the concession can be attained. If the conditions are not met on either side, the relevant party can withdraw their offer without being inconsistent or losing face. 7.67 This approach forces the parties to focus on a specific issue, without sliding off into other issues, as frequently happens in negotiations. For example Cat might ordinarily say, ‘I’m not prepared to talk about the car while she is still claiming compensation for something that I have not done.’ The mediator’s intervention makes her concentrate on one issue by reassuring her on the other. It also involves a key reframe by the mediator, through the use of words such as ‘reasonable’, ‘fair’ and ‘appropriate’ in the conditional term. This avoids an expectation in Cat’s mind that she will get what she wants on the compensation issue; it reduces the expectation to a ‘satisfactory outcome’. This method of bargaining involves some level of sophistication and if initiated by the mediator it can become a pattern for the deal-making phase of the negotiations.

What about unilateral concessions? 7.68 Linked bargaining is a way of avoiding ‘wasted’ concessions being made by one or both parties. Mediators often observe a party or their lawyer making an early concession on a seemingly unimportant issue (‘Yes, we’ll agree to the terms of settlement being made confidential if that is what you would like …’) without extracting a reciprocal concession for their own benefit or keeping it up their sleeve to trade with later. However, the issue is not a simple one. There are two basic approaches to dealing with multiple negotiation issues. The first is the building block approach where each issue constitutes a block in the wall being constructed and the blocks are put in place one by one. In this model each concession a party makes means good progress as another block is cemented into place. In this approach the mediator might encourage unilateral concessions. The main problem with this approach is that the final block might have to be put in place on its own without the possibility of rearranging the other blocks and this might be difficult or impossible to achieve. 7.69 The other approach is the juggling balls approach. Here the various negotiation issues are kept in the air for as long as possible so that there are always multiple issues to negotiate over, and conditional offers and linked [page 230] bargaining can lead to mutually satisfying trade-offs and packaging. In this approach the mediator would not encourage unilateral concessions. However, a problem with this model is that it may become too complicated, the parties might be discouraged, and all the balls could fall to the ground with nothing settled. As usual each approach has its strengths and shortcomings and circumstances will dictate which is used. Even if the juggling balls approach is being followed, there is one good reason why an early unilateral concession might be appropriate.

It could constitute a sign of good faith and dramatically improve the climate of the negotiations.

Accommodating future contingencies 7.70 A recurring problem in negotiations is that decisions have to be made in the face of uncertain future contingencies. The contingencies could relate to many kinds of external factors, involving other parties, the establishment of facts, or developments in the economy or the marketplace. There are many examples: a grandparent has to be asked to transport children at the beginning and the conclusion of contact; property has to be sold and distributed and the sale price, and even the likelihood of a sale, are unknown factors; a bank has to be asked to release a debtor from personal guarantees in a partnership dissolution; or an estate has to be administered and there is uncertainty as to whether all potential beneficiaries have been identified. 7.71 Where this problem arises in mediation, there are various ways in which mediators might guide the parties on dealing with future unknowns. As with other difficulties in mediation, they should first normalise the situation: in many negotiations, and other life situations, the relevant people, and often their professional helpers as well, have to make decisions in circumstances of uncertainty. In addition mediators could guide the parties to: Reach agreement on matters that can be settled, adjourn the mediation and resume it when the formerly uncertain events have become clear — the ‘short, medium and long-term’ approach, also known as the ‘wait and see’ method. Make an assumption as to what will occur, and base the settlement on this assumption, with a covenant that if the assumption proves to be incorrect the parties will revisit their agreement on which it was based — the ‘default’ method. Develop a formula, involving percentages, proportions or ratios, which can be applied to facts or figures when they eventuate — the ‘formula’ approach. Develop a process for resolving the uncertainty that involves the

parties, fact finding, external experts and the like — the ‘process’ method. Have the parties base their agreement on an average or median price or other relevant factor, using their own figures or the estimates of their advisers or experts — the ‘rough as guts’ approach. [page 231]

Taking account of parties’ perceptions 7.72 The focus in this chapter is on how the mediator can assist the parties to negotiate constructively. This requires the mediator to observe what is happening and to make some judgments and decisions on the basis of the observed phenomena. Mediators should also be alert to the factor of how the parties are subjectively experiencing the negotiations, though this is less easy for an outsider to detect and understand. However, the mediator should be conscious of several possible factors: Where Party A makes a concession ‘too easily’ and Party B feels that it has not been given in response to their demands, Party B may devalue the significance of the concession (known as ‘reactive devaluation’). This points to the need for appropriate timing in the negotiation process, a matter referred to earlier. It is repeated here because it is important for mediators to be mindful of the parties’ possible perceptions accompanying the ‘objective’ developments. Concessions made by Party A on a ‘take it or leave it’ basis, without any apparent recognition of Party B’s arguments or needs, might be rejected by Party B, even though they are objectively valuable, because they did not materialise out of a reciprocal process of give and take between the two. Offers or concessions made by the ‘wrong person’ may be rejected, for example a worker does not accept anything emanating from the Human Resources manager, or a plaintiff refuses to consider

suggestions from the other defendant’s lawyer (known as ‘negative transference’), whereas they would be receptive to the same offers from other individuals. Where Party A feels powerless and forced into making compromises (‘perceptual disempowerment’), they might become resistant and recalcitrant, even though the concessions being made by Party B are objectively valuable. Party A, who has consistently made strong positional demands, may find it possible to change their mind only where ‘legitimate’ reasons for doing so are provided and identified, for example new documents have been produced of which they were previously unaware. Some parties require a protracted sense of struggle before they will be satisfied with any outcome. In these situations a series of incremental concessions will be more ‘satisfying’ to them than a single large concession. A settlement will be easier to accept where it is perceived as a ‘gain’ and not a ‘loss’ (known as ‘loss aversion’: see 7.53 ), which might require consideration of the bigger picture surrounding the specific dispute, including such factors as legal expenses and opportunity costs. 7.73 Mediators should use the familiar formula in dealing with these dynamics. They: observe what is happening (observation); make a tentative diagnosis (diagnosis); [page 232] plan an intervention (intervention); and implement it (implementation). For example the intervention could involve normalising the situation so as to empower the parties, educating the parties about the significance of the current situation or dynamic, and using separate

meetings to discuss with them ways of dealing with it. If this intervention does not work, they re-diagnose the problem, reach into the toolbox and try another intervention.

Working with numbers 7.74 Boulle and Nesic (2010: 196) explain that a mediator who has an understanding of the psychology of numbers can help parties work creatively with numbers. Numbers can be viewed in many different ways, for example: as a percentage (‘Would you consider increasing your offer by 10 per cent to reflect their 10 per cent decrease in the claim?’); as a range (‘Would you be prepared to consider a settlement between $300 000 and $350 000?’); as beginning with a particular digit (‘Are you looking for a settlement beginning with a three or a four?’); as containing a certain number of digits (‘Are you looking for a sixfigure settlement?’); as being higher or lower than a target, and so on (‘Am I right in thinking that you are aiming to recover at least your costs?’). Flexibility with numbers can also provide momentum for the negotiations. Another useful technique is to assist the parties to move from an approach based on specific items or figures to a global approach or lump sum. This approach can change the dynamic and encourage movement between the parties.

Crossing the last gap 7.75 The last gap is a special type of deadlock that can be encountered in both positional and interest-based bargaining: see Wade (2006a: 467). 7.76 Problems with crossing the last gap can arise where parties have made decisions on all issues except one, and have reached a deadlock on that one. It usually involves an amount of money — the last 10 dollars or the last one million dollars, as the case may be. The

last gap is difficult to cross because both parties feel that they have conceded too much, and they feel that they would show weakness and lose face if they made the final concession. Even where it makes commercial sense to compromise on the last gap, these noncommercial factors make it difficult to do so. There are clearly no guaranteed strategies for dealing with the last gap. Mediations do sometimes fail to reach settlement. Mediators can, however, be mindful of the following possible approaches for dealing with it: Splitting the difference: the classical compromise arrangement in which the parties meet each other halfway. [page 233] Using random chance: spin a coin, draw straws or write out a series of figures between the last two offers (for example $2000, $3000, $4000 up to $10 000) and have one selected randomly with the agreement that it will constitute the settlement figure. Giving the benefit or value being argued over to a third party, for example to charity or to the children, or to purchase a lottery ticket. Subdividing the gap: develop sub-issues, as discussed above. Using the ‘You cut, I choose’ routine: one party divides up the chattels or other objects of value and the other party has first pick of the ‘piles’. Making last confidential offers: each party gives the mediator their best offer in private and if the gap between these last offers is less than a predetermined amount the mediation proceeds, otherwise it is discontinued. Deciding on appropriate procedural options: — Refer the liability or quantum question to an expert and continue the mediation in light of their opinion. — Change the process, for example to ‘med-arb’: see 9.48-9.52. — Refer the issue to a ‘higher authority’, such as an arbitrator, tribunal, board or court.

— Defer treatment of the last gap to a fixed time and implement the remainder of the agreement in the interim. Adjourning and getting both parties to exchange ‘final offers’ directly with each other, or through the mediator, within a specific period. Adjourning and getting one party to accept or reject the ‘final offer’ of the other party at a specified date and time. Asking the solicitors to put the same question to their clients, namely whether, if the other party moves up/down to a specified figure, they will move down/up. Shaming the parties: the mediator offers to pay himself or herself, in the hope that the parties will be embarrassed and do it themselves. (It is a risky strategy as the parties might accept the offer.) Ultimately it is best to anticipate and avoid the last gap phenomenon. Mediators should consider warning the parties early in the mediation about the potential problem and discuss ways of avoiding it, for example by keeping more than one issue to negotiate over.

A note on splitting the difference 7.77 Splitting the difference is useful, in the right circumstances. Splitting the difference is the classical form of compromise and might be the appropriate strategy in some cases, even though compromise is sometimes looked on as a simplistic ‘cop out’ in the mediation movement. Some mediators say that the problem with splitting the difference is that it rewards the bigger liar, in that the point of compromise will favour the party who made the more extreme [page 234] opening demand. Nevertheless in the right circumstances it might be highly appropriate. It can be introduced by the mediator as an

honourable option, ‘You need to give a little to get a little’, or with a small homily, ‘In my view a little give and take by each of you will settle this matter.’ 7.78 Mediators should be alert to the problem of only one party offering to come halfway to cross the last gap; the danger is that the other party will then split the remaining difference and so on. For example if there is a last gap of $10 000 and one party offers to move $5000 the other might respond with an offer of only $2500. Therefore in joint session the mediator might say, ‘Are you both prepared to meet halfway …?’ or in separate session, ‘Are you prepared to concede half the disputed amount on condition that the other side also does so …?’ Care should also be taken with language on this issue, as the term ‘compromise’ might not be appropriate in some cultural contexts where it might suggest the sacrifice of principle.

Dealing with the last-minute add-on 7.79 Reference has already been made in this chapter to the problem of the last-minute add-on. (Remember Danielle’s last-minute claim for a Titanium credit card account.) This additional claim, where settlement has been reached on all declared issues, shortens the temper of the other party (and the life expectancy of the mediator). Thus in a matrimonial property dispute where agreement had been reached on all the assets, on the debts and on the resources such as superannuation, one party raised the question of Randolph (not his real name) the budgie. It took another 90 minutes to finalise the issue of Randolph’s residence. The add-on should not be judged too quickly as it might be the result of a genuine oversight by the relevant party. It was not an oversight in the case of Randolph where it appeared to have been raised as a deliberate strategy to save face by extracting the last concession, or even to destabilise the whole settlement because the party concerned did not want to settle at all. 7.80 Thus a mediator’s first responsibility is to attempt to diagnose the significance of the add-on and to base an intervention on that provisional diagnosis. If it appears to be an oversight, then some

explanation and face-saving is required. If it is a tactical ploy then several interventions can be considered: asking the other party if they also have any additional items, re-opening earlier issues to discuss together with the additional one, resorting to separate meetings, confronting the party who raised it, or using some of the techniques discussed in relation to the last gap. Where mediators suspect in advance that the add-on problem might occur, they can inform parties about the problem in a generalised way, thereby lessening the chances of it being used as a tactical ploy. Mediators could even ask parties to agree at that point on how to deal with the problem should it arise. Another way of pre-empting the problem is by asking parties periodically whether all relevant issues have been disclosed, in an attempt to make it less easy to sabotage the process at the end. [page 235]

Dealing With Impasses A note on terminology 7.81 Terminology is crucial, as detailed here. Different words are used for the situation in which the mediating parties ‘get stuck’. Some mediators avoid the word deadlock as it implies a complete breakdown in negotiations and is too negative; the same applies to stalemate, which suggests that there can be no resolution. The term logjam suggests that with some bumping and jostling it might be possible to find a solution, although the metaphor might not be universally understood. The term impasse is rather abstract, but does not have any of the negative connotations of the others. It is the term used (mainly) here but might not be appropriate for some clients. 7.82 Impasses are situations in which one or both negotiating parties refuse to make further concessions and the negotiations are threatened with termination. Many negotiation and mediation texts

provide long lists of ‘things to do’ in the face of impasses, such as ‘move on to another issue’, ‘take an adjournment’ and ‘have a beer’. There is some value in these suggestions, but they all require concrete circumstances to indicate their appropriateness. Here the list system is also used (without the beer) in an attempt to provide a more systematic approach to the problem. 7.83 When facing an impasse, mediators would do well to remember that if they continue to do the same thing, they are likely to keep getting the same result — grand-standing, table-thumping, threatened walk-outs and other dramatic symptoms of negotiation impasses. Therefore something has to change. As with other problems in life, it is helpful to go back to basics. There are three different categories of interests that parties might have in mediation, namely substantive, procedural and emotional (see 4.12 ), and there are three different aspects of mediation that mediators might be able to change in order to overcome an impasse. In terms of change on substantive issues, mediators might seek to shift parties’ perspectives on their positional demands in a variety of ways. Alternatively, mediators might choose to introduce procedural changes to the mediation. Then again they might initiate an intervention with the aim of changing the relational dynamics in the room and participants’ feelings (emotions) about themselves, the others and the mediation itself. Of course mediators can introduce a number of changes at once across two or more categories: Alexander and Howieson (2010: 239-45). 7.84 Thus all mediator impasse interventions will involve changing something about how substantive, procedural or emotional interests are currently being addressed. What follows are some possible mediator interventions which recap many of the tactics discussed in this book. At the end of each subsection an illustration is provided from the partnership mediation involving Sam and Cat: see 7.65. [page 236] 7.85 Substance: How can mediators change the structure, substance,

perception or content of the offer on the table? Challenge the assumption that there is only a ‘fixed pie’ over which to negotiate. Refocus the parties’ attention on interests and away from their positions. Investigate the possibility of a further exchange of information and data. Shift from the substantive issues to alternative processes for dealing with the problem. Conduct brainstorming or another creative option exercise. Clarify communication and the understanding of the parties. Develop sub-issues (issue proliferation). Link negotiation issues in a packaged system. Emphasise costs and other downsides of not settling. Consider whether confidentiality undertakings might help to overcome deadlock concerns. Have one key witness give ‘evidence’ after which the parties discuss its significance.

Case illustration: Changing parties’ perspectives on the substantive aspects of the dispute If Sam and Cat are in dispute over the terms and expectations of the partners, a mediator might suggest that they revisit their partnership agreement and invite their now retired ‘mentor’, who helped them establish the partnership, to provide some information at the mediation and to be asked questions of clarification, after which Cat and Sam could resume their discussions. 7.86 Procedure: How can mediators change the way the process is being conducted? ‘Normalise’ the situation — remind the parties that it is a normal part of the mediation process to get stuck. Summarise progress in a positive way and invite the parties to

continue. Move to another agenda item. Suggest a break and reconvene at a later time or date. Reassess the effect of the venue, seating, comfort factors, visual aids and the like. Use separate meetings to ascertain why and how the process is not satisfying the parties. [page 237] Separate adviser or party meetings can provide momentum: see 5.64. Re-convene a joint meeting to encourage airing of differences, brainstorming and narrowing of issues. Explain and make transparent aspects of the mediation and negotiation processes. Use visuals/the flip chart to depict the situation more graphically. Ensure stronger enforcement of the mediation guidelines. Encourage parties to take responsibility — ‘How will you resolve this impasse?’ or ‘What can you do to make a difference?’ Encourage a concession that is easy to make for one party and valuable for another to receive. Offer to make a non-binding recommendation. Investigate the possibility of changing the mediator or terminating the mediation (as a last resort). Introduce a deadline to decision-making. If dealing with the last gap, consider the suggestions made above: see 7.75-7.76.

Case illustration: Changing aspects of how the process is conducted If Cat and Sam have reached an impasse because Sam is dominating the process and otherwise ignoring the mediation guidelines, and Cat is becoming confused and unable to make a

decision, the mediator might do the following: identify the problem, restate the guidelines, get the parties to recommit to them, take a short break to allow Cat to compose herself, and resume the process with a more forceful application of the rules than before. 7.87 Emotions: How can mediators change the relationship or interaction dynamic in the room? Consider changing the principal negotiators, or support persons. Allow some controlled venting of feelings. Acknowledge deeply experienced emotions of the parties. Deal with destructive tactics being used by one or both parties. Consider appropriateness of language, terminology and nonverbals. Consider the relevance of mutual apologies. Attempt to quantify value disputes. Identify an exception or other basis to ‘change the rules’ so that parties can save face. [page 238]

Case illustration: Changing the basis for how participants interact with each other in the room If Sam and Cat have reached an impasse because Cat cannot afford to lose face in the eyes of the architectural community and Sam is too proud to withdraw her claim, the mediator might begin by acknowledging the deeply experienced emotions of the parties and then discuss with each of them (in separate sessions) a basis for offering mutual apologies. The mediator might then consider an appropriate timing and setting for the exchange of apologies. 7.88 In the case of all impasses the mediator always has the option of

bringing ‘pressure’ to bear on the parties to settle — this topic is dealt with in Chapter 8.

Different Methods of Performing These Functions 7.89 There are many different methods that mediators can adopt for assisting the parties to accomplish the goals of good negotiation. Here are some examples of these methods: Educating: Mediators can explain to the parties before mediation about negotiation’s normal features and predictable problems. This can be done in writing, in personal or telephonic contacts or, where there are many individuals on each side, by conducting a negotiation workshop for each group. Likewise during the course of the mediation the mediator may give a ‘mini-lecture’ to the parties on a specific aspect of negotiation. Advising: Mediators may ‘advise’ both parties in a generalised way, for example that mediation works best when they are all prepared for the negotiations. They may add some specific recommendations, for example that preparation on the valuation of disputed goods can help negotiations run more smoothly. At a more ‘interventionist’ level mediators may advise one of the parties in a separate meeting that if they accept the other side’s offer with too much alacrity the offeror might feel that they have offered too much and attempt to recover some of it. Coaching: During the separate sessions mediators can coach the relevant party in appropriate ways of linking offers, presenting offers and responding to offers once the joint session resumes. The coaching can include short demonstrations and rehearsals for the real thing. Mediators need to be mindful of the neutrality issue when undertaking this role; they should not become the ‘advocates’ of either party. Modelling: Co-mediators can model appropriate negotiation styles by dealing openly with their differences and focusing on underlying interests. In more subtle ways solo mediators can model good negotiation techniques when they are ‘negotiating’ with one or both

of the parties over a procedural issue or other problem. Pre-empting: Where mediators are concerned that specific problems may materialise they may attempt to pre-empt the problems. For example where [page 239] they are suspicious about a last-minute add-on they might say, well before this can occur: ‘In my experience people sometimes think of something they want at the last moment and this can threaten all the good work that has been done. Might either of you have overlooked anything like that?’ Illustrating: Mediators can provide examples from their practical experiences, without actually suggesting them as solutions, for example: ‘In another industrial dispute in which I was involved the parties agreed to implement the wages and safety agreements immediately and to defer the training issue until they could each come up with fuller training proposals.’

Mediator Learnings 7.90 This chapter offers the following learnings for mediators: 1. Mediators have a role in all styles and strategies of negotiation to make them more productive, efficient and likely to result in wise agreements for the parties. 2. The mediator’s role requires an extensive understanding of the art and science of negotiation — he or she is the negotiation expert and specialist at the mediation table. 3. The standard mediator responsibility is to develop a hypothesis on a negotiation issue, plan an intervention, carry out the intervention, and in the light of the effectiveness of the intervention revise or refine the hypothesis.

Tasks for New Mediators

7.91 Reflect on the last time that you bought or sold a hairdryer, a horse, a house or a Holden (second-hand). What one specific insight from this chapter would cause you to negotiate differently if you were to take part in that same transaction again? What principle of negotiation did you learn in that encounter that is not referred to in this chapter? 7.92 Role-play with a partner a negotiation between a consumer and a retailer over the former’s attempt to return a vacuum cleaner on the grounds that it is defective. Each of you must use a range of relevant tactics, including lies, bluffs and threats, to ‘create doubt’ in the mind of the other. Use great poetic licence. Debrief each other on the effects of these tactics on each of you. How might a mediator have dealt with the doubt-creating tactics, and their effects, which you experienced? 7.93 You have been appointed to mediate a dispute between two factions in a voluntary organisation. They have the time and resources to allow you to have preliminary meetings with each faction at which you plan to educate them about and train them in negotiation skills. Write out a list of the five negotiation principles which you think are the most important and which you will enlighten them on in the preliminary meetings.

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CHAPTER 8

Encouraging Settlement Introduction Sources of Mediator Power and Influence Categories of Encouragement to Settle Risk Assessment Methods and Styles of Encouraging Settlement Using Power to Encourage Settlement: Some Illustrations Dangers in Encouraging Settlement To Intervene or Not to Intervene Mediator Learnings Tasks for New Mediators

Introduction 8.1 A further way in which mediators add value to parties’ negotiations and decision-making is by ‘encouraging settlement’: see 1.28. This chapter looks more closely at this mediator function. Most mediation training is based on the distinction between process and content: see 1.13. The distinction implies that mediators should conduct the mediation process and allow parties, in terms of the principle of self-determination, to come to their own decisions on matters of content. There is an assumption that, in conducting the process, mediators do not ‘coerce’, ‘pressure’ or otherwise ‘influence’ parties to reach their decisions. This assumption, however, requires some scrutiny and analysis. 8.2 This is another area in which terminology is problematic, given the

inherent flexibility of words and the different connotations that the same [page 241] terms have for different people. Here is a ‘starter kit’ glossary for present purposes, although it is by no means a definitive list of definitions: Power (n) — the ability to affect the perceptions, attitudes and behaviour of others. Influence (v) — to affect the perceptions, attitudes and behaviour of others in a subtle, acceptable or legitimate manner. Pressure (v) — to affect more strongly (or less subtly) the perceptions, attitudes and behaviour of others. Depending on the circumstances, some forms of pressure may be considered illegitimate. Coerce (v) — to impose forceful pressure on others that is difficult, or impossible, to resist. Coercion is often considered inappropriate, illegitimate or even illegal. Encourage (v) — a generic term for using power to influence, pressure or coerce. 8.3 Whether a mediator’s intervention to encourage settlement or other decision-making involves influence, pressure or coercion will depend on the nature of the intervention, on the circumstances and timing of the mediation, and on the subjective reaction of the parties concerned. The last-mentioned factor is important. Where, for example, a mediator directly or indirectly expresses pleasure or displeasure at the state of the negotiations, different parties will experience it differently. For some it might be a major source of pressure or coercion, and for others it might be of little consequence. There is therefore a significant element of subjectivity in relation to the topics discussed in this chapter. As indicated above, the term ‘encouraging settlement’ is used to refer to all interventions in which mediators use power to promote

settlement by parties. Here ways in which mediators could encourage settlement or the making of other relevant decisions will be described — a descriptive section. The evaluative question of the extent to which mediators should perform this function will be considered towards the end of the chapter — the prescriptive section.

Sources of Mediator Power and Influence 8.4 It has been suggested that while mediators have limited formal authority, for example they cannot impose binding decisions on parties, they have considerable potential ‘power’: Boulle (2011: 27880). As indicated above, power is understood here as the ability to affect the perceptions, attitudes and behaviours of others. Some of the sources of mediators’ power are as follows: Associational status — that is the power they derive from their membership of a mediation service or professional association that accredits mediators, or from a court or government agency that appoints them to mediate. In Australia two national schemes, the National Mediator Accreditation [page 242] System (NMAS) and the Family Dispute Resolution (FDR) System, offer accredited mediators a source of associational status. Expertise — that is the power that derives from their knowledge and understanding of conflict, of the mediation process, of negotiation behaviour and of other aspects of dispute resolution, and, in some situations, their substantive knowledge about the matters in dispute. Mediator expertise is addressed in the NMAS Practice Standards s 7(3) in terms of competency and a mediator’s capacity ‘to apply knowledge, skills and an ethical understanding and commitment’ in a mediation context. Control of the process — that is the power deriving from their role

as chair and manager of the mediation process, including the ability to make decisions on procedural matters, such as who speaks first, when to move the discussion from one issue to another, or when to adjourn proceedings. Personal attributes and skills — that is the power deriving from their personality, interpersonal skills, intellectual capacity, linguistic abilities and the like. Access to restricted information — that is the power which derives from knowing parties’ resistance points (see 7.9), their priorities, factors that motivate them, and other information they may disclose to the mediator on a confidential basis. Ability to transmit messages — mediators derive considerable power from their position as the sole source of communication between parties when they are in separate session or when mediation is conducted on a shuttle basis. Ability to evaluate and sanction — some mediators have structural sources of power, for example where they are required to evaluate mediation behaviour and make recommendations (which could lead to sanctions for one or both parties) to outside bodies. An example of this power can be found in the role of farm debt mediators in New South Wales. Moral pressure — mediators have power where, by virtue of their impartiality, independence or in some cases high status in the applicable industry or community, they can invoke ethical standards or moral judgments that might affect and influence parties. At least some of these sources of power exist in all mediations. The next consideration concerns how mediator power can be used to encourage settlement and the making of other relevant decisions.

Categories of Encouragement to Settle 8.5 There are many potential ways in which mediators can use their power to encourage settlement. Reference is made to five categories of encouraging settlement, namely providing information, expressing an opinion, advising parties, being judgmental, and acting as the agent of reality. The semantic problem crops up again here. For

example it is clearly not easy to be precise [page 243] about the distinction between the provision of ‘information’ and the furnishing of an ‘opinion’, or between expressing an ‘opinion’ and giving ‘advice’. Thus most of the following categories potentially overlap with one another.

By providing ‘information’ 8.6 The first way in which mediators can encourage settlement is by providing ‘information’ to the parties. Here ‘information’ is understood in terms of statements asserting the objective truth about matters, as opposed to providing an evaluation or expression of opinion. Mediators can provide information in this sense in relation to: The mediation process (‘In mediation we first define the problem before considering options for its settlement …’). Negotiation behaviour (‘Negotiations work best where there are no last-minute add-ons as this can prejudice the progress made …’). Legal rules or principles (‘There is a legislative limit on damages recoverable in this jurisdiction …’). The legal system (‘You would have to bring this kind of claim before a tribunal rather than a court …’). Aspects of human behaviour (‘Executives normally benefit from professional counselling after they have been retrenched …’). Realities of the situation (‘Don’t forget that while you are arguing over the sizes of your slices, the cake is getter smaller because of legal fees and other expenses …’). Disclosures from the other side (‘I have permission to tell you that if your claim is successful, the defendant will have to petition for insolvency. They are prepared to show you the financial information supporting this reality’).

8.7 Clearly some kinds of information will be more ‘objective’ than others. The statement that ‘In this legal system you cannot get punitive damages as you can where you come from’ will, if correct, be more objective than the statement that ‘It’s normal for depression to lift once the anxiety of a court hearing is removed’. Similarly, some kinds of information when furnished by mediators will have a greater effect in encouraging settlement than others. The NMAS Practice Standards s 10 permits mediators with the consent of the parties to provide mediation participants with ‘information that the mediator is qualified by training or experience to provide’. See also s 2(6) of the Standards in relation to the provision of expert information by mediators. These provisions are further discussed below.

By expressing an ‘opinion’ 8.8 The second way in which mediators can encourage settlement is by expressing an ‘opinion’ to the parties on a particular matter. [page 244] Here an ‘opinion’ refers to a considered view on some matter or a personal evaluation about a state of affairs, but without any firm advice or recommendation on which course of action should be pursued. Opinions can be expressed on the same matters, referred to above, as those on which information can be provided. The expression of an opinion would normally be a more ‘interventionist’ contribution by a mediator than the provision of information, and therefore more likely to encourage settlement. Some mediators distinguish between a professional opinion (for example ‘As an engineer my view is that there was probably insufficient ballast for the size of the ship …’) and a personal opinion (for example ‘My view is that if you were to offer an authentic apology, they may well reduce their financial expectations’). Some mediators feel that professional opinions are more appropriate in mediation than personal opinions.

However, mediation clients may not appreciate the subtleties of the distinction and any expression of opinion by an authoritative mediator might bring their decision-making into line with the opinion.

By ‘advising’ 8.9 The third way in which mediators can encourage settlement is by advising one or both parties on a particular issue or course of action. Here the term ‘advise’ refers to a mediator making a suggestion or recommendation based on their professional assessment of the situation or on personal experience. Advice denotes more than just an expression of opinion — it offers an attitude as well. 8.10 In a mediation, advice can relate to one or more of a number of things: Substantive advice: ‘Well, $250 000 does not sound like adequate compensation for your injuries when your medical problems could continue for many years to come.’ Procedural advice: ‘You would have difficulty getting most of that evidence admitted in court because it is hearsay, but in mediation you may be able to use it to convince the other side to settle.’ Legal advice: ‘Well, you might find that you have a problem later with provisions of the Competition and Consumer Act if you formalise that agreement.’ Advice on conflict: ‘This dispute was the result of a breakdown in your working relationship caused by poor communication and now that you have demonised each other you should examine your relationship before discussing the money.’ Negotiation advice: ‘In this negotiation it would be best for you to keep something up your sleeve, like the offer of an apology, and not to make your best offer at this stage.’ Advice on court behaviour: ‘Judges here are not very sympathetic to those kinds of arguments nowadays and you would be advised to drop the idea that you can pursue them in court.’ [page 245]

Advice on the facts: ‘Your facts about the accident are disorganised and inconsistent and will have to be presented in a comprehensive and systematic way if you are to persuade anyone on the liability question.’ 8.11 Probably one of the most discernible trends in some areas of contemporary mediation practice, particularly in that connected to courts, is that of mediators ‘advising’ parties in some way. The question of whether mediators should ever, or sometimes, give advice in one of these forms is a major issue in mediation circles. As with the other categories of encouraging settlement, it is dealt with further below: see 8.35-8.39.

By being ‘critical or judgmental’ 8.12 The fourth way in which mediators can encourage settlement is by being ‘critical or judgmental’ of one or both parties on a particular issue or proposed course of action. This category is closely connected to that of mediators advising, but implies a more critical, albeit sometimes subtle, evaluation of parties’ statements or behaviour. There are many ways in which mediators can encourage settlement by being critical or judgmental of the parties. Apart from direct judgmental or critical statements, one of the most likely ways is by asking certain categories of questions. When asked in the relevant context and with the appropriate tone, questions which are critical, suggestive or judgmental can be a significant factor in encouraging settlement by the parties. 8.13 The following are examples of such questions. Rhetorical questions: ‘Well, do you want to settle on those terms now, or do you want to spend more time and money and settle in a year’s time on the court steps for the same amount?’ Closed questions: ‘Now do you want to take either the reduced amount in cash or the larger sum of money in instalments over three years?’ Suggestive questions: ‘Would it be possible for you to agree on the amount of damages and get an expert to give you an opinion on the

liability question?’ Cross-examining questions: ‘But didn’t you say previously that you did not want to pursue that point any further?’ Probing questions: ‘You’ve said that you are strong on the liability question, but could you tell me what case law supports the defence you are raising?’

By acting as the ‘agent of reality’ 8.14 The fifth way in which mediators can encourage settlement is by acting as ‘agents of reality’. The term ‘agent of reality’ is used frequently in relation to the role of mediators. The phrase suggests that they can encourage parties to face the [page 246] realities of their situations where they are being unrealistic, uninformed or just intransigent. The purpose of reality testing is to make the relevant party reflect on a position, behaviour or attitude, to think of future consequences that they have not considered before, and to change their behaviour. The phrase is part of the jargon of mediation and is usually used in a way that denotes a sacred legitimacy to the function. (It has an almost biblical ring — ‘angel of reality’.) In negotiation terms it is a mediator’s way of ‘creating doubt’ (see 7.34): he or she is the ‘devil’s advocate’. Angels and devils create interesting metaphors here. 8.15 In fact the ‘agent of reality’ terminology is a loose and rather unhelpful description for many of the interventions referred to in this section. Thus a mediator can perform the agent of reality function by providing information, by advising one or both parties, by expressing an opinion on the matters in dispute, or by asking critical or judgmental questions. Where a mediator has asked the parties to prepare written documentation for mediation such as an issues paper (see 4.10), a mediation memo (see 4.10) or a case summary (see

4.10), this may be used for reality-testing purposes. Mediators can also use risk assessment methods to assist with reality testing. Tools for risk assessment are considered in the next section. On some of the other ways in which mediators can exercise their reality-testing function, see 7.81-7.88. Essentially mediators invite parties to see the weaknesses as well as the strengths of their respective case, the downsides as well as the upsides. As reality testing can be fairly interventionist and parties may perceive it as a form of criticism, its extent and timing should be considered carefully. For this reason reality testing is sometimes done in separate meetings.

Risk Assessment 8.16 Often parties are more concerned with the facts that they think they know and fail to look at their dispute realistically and objectively. This can lead to intransigent positions, a breakdown in mediation and further costs and headaches for all concerned. As the name suggests, risk assessments help parties to assess the risks associated with choices they may need to make in mediation. At the most basic level, a risk assessment is a list of benefits and consequences, or pros and cons, that flow from a particular course of action. Parties and their legal advisers may choose to conduct risk analyses before making decisions such as when to make or accept offers of settlement, when to start or terminate negotiations, when to file a writ or seek an injunction and when considering what strategies or arguments to pursue in front of a judge. In the context of mediation, risk assessment can form part of a mediation memo: see 4.10. However, mediators can engage the parties in separate risk assessments before and during mediation (especially during separate sessions). After completing or revisiting a risk analysis in separate sessions, parties may wish to consult their lawyers and significant others, or just have time

[page 247] to think things over before making final decisions. Time should be provided for sufficient consultation, and in some cases a mediation may need to be adjourned.

Who should conduct a risk assessment? 8.17 Where legal or other professional advisers are available, they should assist clients to analyse the opportunities and risks associated with decision-making. However, it may prove to be unwise for a mediator to rely solely on such an analysis. Wade (2004) points out that legal advisers may not always be best placed to oversee risk assessments. For example lawyers may: not be trained in how to prepare a risk assessment; not be in the habit of conducting formal risk assessments and therefore fail to document risks in a precise manner; give overly optimistic or general advice; focus solely on legal positions and risks instead of on commercial, personal and other non-legal interests; be wary of giving ‘premature’ advice before preliminary court processes such as discovery are complete. In addition some advisers may be concerned about leaking of documents damaging to the client’s case; for example a full list of risks accidentally left on the negotiation table during a break could have negative consequences. Clients’ attitudes to risk assessment may also influence an adviser’s conduct in this regard. Where, for example, a client is looking to minimise costs, preparation of a written risk assessment may be viewed as unnecessarily adding to the transaction cost of dealing with a dispute. In similar vein, there may be lawyer concern that the inherent negatives likely to be discovered in a proper risk assessment may lead a client to find another lawyer who doesn’t present so many ‘obstacles’ in relation to their case.

Another potential issue is the client with ‘selective deafness’ (see 3.8), that is one who only hears what they want to or who acts as they please, regardless of their lawyer’s advice. Here even the most thorough risk assessment by the most competent adviser may not succeed in getting the party to engage in a sober and realistic assessment of risks and opportunities associated with the dispute. For these reasons it is advisable for mediators to be involved in the preparation of written risk assessments with both parties. The extent of mediator involvement in this task will depend on their view of the needs of parties and their advisers. However, the general rule of procedural fairness applies, namely what is done for one party must also be done for the other.

Why have a written risk assessment? 8.18 A written assessment is useful for several reasons. First, it offers clarity and information power to parties. It is important for risks (and the facts on [page 248] which they are based) to be clearly and systemically defined. Failure to do so may lead parties to make poor decisions based on false assumptions. The principles of party autonomy and procedural fairness in mediation assume that parties are informed decisionmakers. The NMAS Practice Standards s 9 addresses what this means for the mediator’s role. Section 9(5) provides: To enable negotiations to proceed in a fair and orderly manner or for an agreement to be reached, if a participant needs either additional information or assistance, the mediator must ensure that participants have sufficient time and opportunity to access sources of advice or information. [Emphasis added.]

Thus mediators have a duty to facilitate, and arguably maximise, the conditions for informed decision-making by parties. The use of written risk assessment documentation can be helpful in this regard.

However, the NMAS Practice Standards go further and expressly set out a mediator’s duty to support risk assessment in relation to a proposed mediated agreement. Presumably this would extend to aspects of a proposed agreement package such as individual options and offers. The relevant provision, s 9(7), states that: It is a fundamental principle of the mediation process that competent and informed participants can reach an agreement which may differ from litigated outcomes. The mediator, however, has a duty to support the participants in assessing the feasibility and practicality of any proposed agreement in both the long and short term, in accordance with the participant’s own subjective criteria of fairness, taking cultural differences and, where appropriate, the interests of any vulnerable stakeholders into account. [Emphasis added.]

Other reasons for conducting a written risk assessment include reducing the risk of human error or misunderstanding based on a verbal (and usually more general) assessment. Clients who tend towards selective hearing (see above) and other flaws, such as insistent complaining, will find it harder to sustain these behaviours when faced with a written risk assessment document to which they themselves have contributed.

What form should a risk assessment take? 8.19 Generally risk analysis tools require parties to respond to itemised headings — sometimes in question form — relating to different areas of risk. A monetary quantification of risks is also desirable, such as in litigation matters where parties seek damages. Alternatively, parties can rank risk in terms of the level of concern they harbour about the risk or how it impacts on their life goals. In its simplest form risk assessment may comprise a list of costs attached to continuing the dispute. Such lists may also allow for assigning good day/ bad day ranges and non-quantifiable interests such as those related to saving face, emotional needs and alleviating stress, where these are important to parties. A more formal risk assessment method is to use a decision tree to analyse risk and calculate the value of a claim: see Figure 8.1. Uncertainties in fact and in law are identified and then probabilities

and expected values are [page 249] assigned to each possible outcome. Going along each ‘branch’ of the tree, one can see an average of how each decision is quantified. Decision trees are a comparatively clear and precise method of getting an estimated dollar value for all possibilities, but they also have their limitations. First, although clear and precise, decision trees require thorough work and thought for the final calculations to be worth anything. Second, decision trees only consider quantifiable risks. They can consider legal and costs-related risks but may be unable to capture business or personal risks, for which it may not be easy to assign a dollar value. For many disputing parties, such risks can be just as important if not more so than legal considerations. Figure 8.1: Simple decision tree analysis

In the above decision tree analysis a party has a choice between going to court and accepting a settlement offer at mediation. The values of the choices are calculated using the decision tree analysis with the result that the option of going to court has a higher value than

accepting settlement. This suggests that the party should proceed to court unless the offer is increased. While this decision tree analysis is fairly straightforward, many can be complex. It is not uncommon for decision tree analyses to involve multiple branches for each option to accommodate the various elements of a legal cause of action needing to be established. 8.20 Yet another form of risk assessment is called life goals analysis which can be particularly useful where non-legal interests play a significant role in a dispute. Instead of focusing on risks, this tool considers a party’s life goals as they relate to business/profession/work, finance, health, family, relationships with significant others, personal interests, lifestyle, and so on. The analysis centres on the extent to which ‘continuing the conflict’ versus the ‘offer on the table’ helps a party reach their various goals and the extent to which it takes them further away from them. [page 250] Risk assessment tools can have a powerful visual impact on parties, even more so if parties have been involved in completing the assessment themselves. To maximise the power of the visual, mediators may, in addition to a detailed written document, introduce an abbreviated version of a risk assessment on a flip chart and invite parties to mark, on a scale of 1 to 10, the extent to which the current offer meets their goals. Figure 8.2 illustrates an abbreviated life goals visual based on the following case illustration. Case illustration: Life goals analysis Siobhan, an emerging Australian art dealer based in Southern China, became acquainted with local entrepreneur, Guan-Xi. Noticing that Siobhan was struggling to make a living from dealing art in China, Guan-Xi invited Siobhan to join him in setting up an Australian wine importing and sourcing business in Southern China, called China Hills. Siobhan was inspired by Guan-Xi’s business plan and immediately began to call on her

contacts back in Australia. Within two months Siobhan had managed to forge a contact with a vineyard in Ideal Hills, Western Australia, and secured a deal to have her own brand of Shiraz produced, bottled and labelled for the Chinese market. As part of their partnership arrangement Siobhan took responsibility for overseeing the logistics, from ordering wine in Australia to the transportation and delivery of the wine to Chinese clients. For his part, Guan-Xi attended to necessary legalities for the establishment of China Hills as a new business and sourced several large clients in Southern China. China Hills was a huge success and within one year the profits soared. After their first year in business, Siobhan relocated to Australia to set up her own art gallery with profits from China Hills. Siobhan worked hard to continue the wine business for the Chinese market and the art gallery in Sydney. However, she found managing both ventures exhausting and found it near impossible to maintain a family and social life. Meanwhile Guan-Xi could not understand why Siobhan had returned to Sydney. Feeling offended by her lack of communication Guan-Xi decided to work together with his new Spanish friend, Marisa, and source Spanish Rioja for his contacts in place of Australian Shiraz. When the Chinese clients informed Siobhan that they would now be ordering Spanish Rioja instead of Australian Shiraz she was enraged and immediately travelled to China to confront Guan-Xi. Negotiations were heated and escalated out of control. In attempts to break the deadlock both Siobhan and Guan-Xi agreed to mediation. For the purposes of Figure 8.2, assume that the current offer on the table is from Guan-Xi. He proposes that Siobhan should sell her share of the partnership, which he estimates to be 35 per cent, to Marisa.

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Figure 8.2: Abbreviated life goals visual

Here the abbreviated life goals analysis shows that Guan-Xi’s offer fulfils only one of Siobhan’s goals perfectly, namely that of residing in Australia. Three other goals are met to some extent; however, four of her goals are not addressed at all. Two goals (those with a rating of 5) remain unaffected by the offer. Thus the offer needs further analysis. Siobhan’s next step would be to prioritise her goals with a view to assessing the extent to which the offer addresses her higher priorities. [page 252] For further illustrations of risk assessment tools see Wade (2004) and Senger (2006: 445).

Methods and Styles of Encouraging Settlement 8.21 As with most mediator functions there are many methods and styles of encouraging settlement.

Verbal 8.22 Mediators can encourage settlement through verbal interventions. They include questioning, reframing, summarising and wording of the list of issues. As words are the main tools of mediators, most encouragement to settle is likely to be provided in verbal form.

Non-verbal 8.23 The various non-verbal forms of communication relevant to mediation have been referred to above: see 6.20-6.31. They too can all potentially be used to encourage settlement, for example through a mediator’s sarcastic or disbelieving tone of voice, or through their shrug of the shoulders or raised eyebrow, with or without verbal accompaniment.

Another non-verbal form of pressure is the use of silence. Mediators can use silence strategically to induce one or other party to make an offer or proposal that might not otherwise have been forthcoming. Circumstances will determine whether this is an appropriate method of furthering the negotiations. It could be a manipulative strategy where one party is uncomfortable or embarrassed by silence and, in order to ‘fill the vacuum’, volunteers information that might otherwise have remained confidential or makes an offer, concession or compromise that they might not have made.

Procedural and structural 8.24 Again, there is a wide variety of procedural interventions mediators might use to encourage settlement, for example hurrying parties quickly through the list of issues, keeping them at the negotiation table for lengthy periods, imposing deadlines on them, or resorting to shuttle mediation so they can use their mediator power more forcefully. This is to acknowledge that even the standard process tasks of mediators are not always neutral and passive functions but can be experienced by parties as influencing, pressuring or even coercing them into making decisions.

Environmental 8.25 Design and manipulation of the environment can also be factors in encouraging parties to settle. This includes the choice of venue, seating arrangements, and the like. However, even where time is limited, mediators are not advised to provide parties with uncomfortable seats so they are pressured by discomfort to agree and get out of there. [page 253]

Visual

8.26 Mediators can use visual effects to make a point about proposed settlements. For example in a parenting dispute they could visually represent the days and weeks on butcher’s paper to depict graphically the overall effect, and its fairness or unfairness, of a proposed plan. Likewise in a commercial mediation they can write up lists of offers and counter-offers to show how much each party has conceded since negotiations commenced, or perform mathematical calculations which can be more easily assimilated by the parties.

Styles 8.27 Each of the different methods of encouraging settlement can vary in style and intensity. An intervention could be tentative, assertive, and so on, along a continuum of high to low intensity. The point at which it is located on this continuum will depend on the nature of the intervention, the intention of the mediator and the perception of the party or parties concerned. 8.28 Here are some points on this continuum, based on a fictitious family mediation involving a parenting dispute. They range from the strictly noninterventionist to the forcefully interventionist style. These styles overlap to some extent with the five categories of encouraging settlement referred to above, but they are provided to illustrate degrees of intensity and not the different categories as such. Non-interventionist: ‘No, I cannot advise you in any way on what you should do about moving interstate, nor on your legal rights. If you need that kind of advice we shall have to adjourn and you can approach someone who can assist with that.’ Minimal interventionist: ‘Well, I cannot give you any advice, but in my experience of these disputes there are three basic ways of dealing with the Christmas issue. Shall I tell you what they are and you can decide if you will opt for one of them?’ Mildly interventionist: ‘Of course it’s not for me to say what you should do, but as an outsider I might be inclined to drop the request for makeup contact if you can get unsupervised contact sooner.’ Moderately interventionist: ‘You know, it’s up to you to decide, but in my experience people in these situations normally have a phase-

in period of supervised contact until the child is comfortable with the parent it has not seen for a long time. This is also the likely approach of a court.’ Reluctantly interventionist: ‘Well, I won’t be recommending anything now about the residence issue, but sometimes if both parties ask me late in the day I will make a suggestion, but it would clearly not be binding on you.’ Strongly interventionist: ‘Look, the Family Court will certainly listen to the argument for unsupervised contact but frankly you have more chance of winning Gold Lotto than of getting it straight away.’ [page 254] Forcefully interventionist: ‘You’re crazy to think about it, no court would keep a child away from its father just because he belongs to a different religious denomination to the child. You need to drop that idea.’ Again, the extent to which the different styles of encouraging settlement are appropriate or inappropriate will be covered below: see 8.35-8.39.

Using Power to Encourage Settlement: Some Illustrations 8.29 Following are some further illustrations (see 8.30) of ways in which mediators (in joint or separate session) could encourage settlement through influence, pressure or other uses of mediator power, applying principles referred to in this chapter. It should be emphasised that some of these examples might be highly inappropriate in some circumstances. Mediators need to be selective in choosing from them. 8.30 The illustrations are based on a commercial dispute introduced in Chapter 1 (see 1.31) over professional advisory services and associated insurance claims brought by New Company (NC), an

emerging property development company, against Experienced Consultancy Services (ECS). As usual, poetic licence is required in relation to some illustrations. Ways in which mediators encourage settlement Congratulations, flattery: ‘Well done, Vincent and Susan, Debbie and Derek, on coming to mediation. That already puts you way ahead of all those who waste their precious time and hard-earned money in the courts …’ Setting high expectations: ‘Mediation is the preferred forum for resolving disputes. Most disputes settle and only very few ever go to formal adjudication. In mediation up to 90 per cent of cases can be settled and nothing I have heard from any of you suggests that you are in the other 10 per cent …’ Shaming: ‘You’ve been arguing for seven hours now with plenty of acrimony but very little progress. I am wondering whether any of you really want to settle this dispute? Do you think this sort of behaviour is of any real benefit to anyone here?’ Using time limits: ‘I really hate to rush you but we only have 15 minutes left to mediate. I’m afraid that after this time you won’t have an opportunity to continue with mediation. So why don’t you use the time productively to make some decisions …’ Referring to RATNA, realistic alternative to a negotiated agreement (in separate session): ‘Listen, Vincent and Susan, it’s time to get realistic. If you can’t agree with what Debbie and Derek are offering you here today this matter will go to court, a

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judge you have not chosen will make decisions about your claims, and he or she won’t have as much information about your case as I do. Would either of you want that alternative?’ Depict a limited range of options (in separate session): ‘Look, everyone here today wants to minimise their losses. Derek and Debbie, there seem to be only two options open to you: either you accept liability and we can think about the money or you find some other way of compensating Susan and Vincent, like offering reduced fee consultancy services in the future. It’s totally up to you. Which of those options should we work on?’ Becoming evaluative: ‘We are not going to make much progress if none of you can make an effort to negotiate. Vincent and Susan, you will need to think about ways of maximising profits on your other businesses so that you can absorb some of these costs. Debbie and Derek, you’re going to have to consider exploring other ways of helping Susan and Vincent recover payments from the insurance company, otherwise this claim may ruin you.’ ‘Gift-wrapping’ offers or counter-offers (during shuttle): ‘Now, Vincent and Susan, we are making good progress. Derek and Debbie are still committed to reaching an agreement and they’re now prepared to make you a higher settlement offer. However, at this point in time, they can’t quite agree on how to structure the payments and the extent to which they are able to offer you reduced rates in the future. So we’ll have to do some further work on those issues.’ Educating and coaching (in separate session): ‘Now, Vincent and Susan, in negotiations of this nature it’s usual for one side to make a concession in response to the first concession of the other side. This keeps the negotiations moving, is a sign of good faith, and can establish a pattern for the rest of

the negotiations. So, Susan and Vincent, would you like me to assist you in making a counter-offer to Derek and Debbie in a way that is most favourable to you?’ Trivialising differences: ‘Look, now you’re arguing over whether it should be four days or five days of free consultancy services that should be provided. How important do you really think that difference is in light of the bigger picture that you’ve been dealing with and have largely agreed on?’ Emphasising common objective standards: ‘Listen, it’s clear that you’re all committed to ensuring continued business relations. So, let’s focus on the details of the future consultancy option for a while, shall we?’ Creating doubt over professional advice: ‘You both have good legal advisers, but it is logically not possible for both lawyers to be right. At least one is wrong, and it may be that both are wrong. However, it is logically impossible for both to be right.’ Working with dissonance: ‘Vincent and Susan, could you tell me what you would need from Derek and Debbie in order for you to agree to their financial proposal?’

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‘Susan and Vincent, what could you offer Debbie and Derek to get them to agree to your proposal on free future consultancy services?’ ‘Derek and Debbie, if I was an adjudicator here and I was to rule that there had to be some provision of free future consultancy services as requested byVincent and Susan, but that you could

define their timing and extent, then what terms and conditions would you suggest be imposed?’ Threatening to quit: ‘Well, you’ve been arguing that point for several hours, and not only are you making no progress, but you seem to be slipping backwards. It seems that there is no real negotiability between you and my only option is to terminate the mediation … Unless of course either of you has a realistic offer to make.’ As already indicated, there are possible dangers in the use of these forms of encouraging settlement and these are referred to in the following section.

Dangers in Encouraging Settlement 8.31 There are a number of potential dangers in any situation in which a mediator uses his or her power to influence or pressure parties to enter agreements they might not otherwise have entered. Some of the dangers relate specifically to the parties and their agreement, others relate to the mediator, and yet others relate to the reputation of mediation as a whole.

Dangers relating to parties and their agreement 8.32 Some of the dangers might be: A mediator’s own interests in achieving a mediated settlement, such as his or her success rate and reputation, could take precedence over the interests of parties. A mediator’s own perceptions, values and preferences about what is appropriate might come to the fore and affect the outcome more than the parties’ views determine it. There is a possibility of greater pressure being applied to, or experienced by, a weaker party because they are more likely to be

affected by mediator power and to make concessions. A mediator’s pressure could be based on objective, normative standards (legal rules, company policies, and so on) and not on the subjective interests and needs of the parties. One or both parties might not abide by the mediated agreement because they feel they were pressured and forced to compromise in the mediation. The legal validity of the mediated agreement might be challenged on grounds of duress or undue influence. [page 257]

Case illustration: Too much encouragement In a mediation involving the distribution of a deceased estate, the parties were legally represented by both a barrister and a solicitor. The mediator was determined to maintain the momentum when the parties were making progress and continued mediating without significant breaks into the late hours of the night. In addition the mediator encouraged settlement by engaging in behaviours such as predicting court outcomes, making suggestions on settlement terms, dictating the terms of settlement and advising parties on enforceability issues. Eventually settlement was reached and all parties signed the mediated agreement. Some time later one of the parties brought legal proceedings in an attempt to have the mediated agreement set aside. The court was asked to review the contract in the light of the undue influence and duress that allegedly affected the party when the agreement was signed. The party sued her lawyers and the mediator. In relation to the mediator, the court found that the party had established these factors and refused to uphold the agreement. This case illustration is based on the case of Tapoohi v Lewenberg (No 2) [2003] VSC 2, 410.

Dangers relating to the mediator 8.33 Dangers relating to the mediator are: A mediator might lose his or her status of independence and neutrality in the eyes of parties who feel pressured into reaching settlement. Disciplinary action might be brought against a mediator for breach of relevant standards or ethical guidelines, for example under the NMAS Standards. A mediator might be sued in negligence or for breach of the Agreement to Mediate as the previous case illustration shows. The pressure experienced by parties might affect the reputation of a mediator among potential users of mediation services.

Dangers relating to the system of mediation 8.34 Some general dangers pertaining to the mediation system are: Bad experiences of inappropriate use of mediator power might adversely affect mediation’s market reputation. Significant inconsistencies could arise in the practice of mediation among different mediators and in different contexts. Users and potential users of mediation might become confused about the nature of mediation and the role of mediators. [page 258]

To Intervene or Not to Intervene 8.35 As indicated in the introduction to this chapter, the most difficult issue relating to a mediator’s role of encouraging settlement is how interventionist or non-interventionist mediators should be. On one hand, parties in mediation usually require a settlement to their

problems and that might only be forthcoming with some encouragement from the mediator: see the case illustration below. On the other hand, too much encouragement could create the problems referred to in 8.32-8.34 and fall foul of regulatory instruments such as the NMAS Practice Standards discussed in 8.37-8.38. Case illustration: Too little encouragement An experienced solicitor, Marie, recommended the choice of a particular mediator, Ethan, because he was an expert in the subject-matter of the dispute, had held a high position in the relevant law society, and was regarded as a wise eminence in the profession. Because her client was resistant to her own recommendations on a commercial settlement, Marie thought that the right signs from an impartial mediator with Ethan’s status would have the desired effect. Ethan had recently completed a mediation training course and was committed to conducting the process without using his power to encourage settlement. The mediation did not produce an agreement. In a subsequent interview Marie indicated that her client had been on the brink of coming to a commercial settlement and required just a little more encouragement from the mediator. When this was not forthcoming, the client’s resistances resurfaced and he was able to justify to himself his decision to walk away without reaching agreement. 8.36 It is not easy to talk in abstract terms about the proper balance between the parties’ right to self-determination (see NMAS Practice Standards s 10 (1)) and a mediator’s function of encouraging them to make decisions. Much will depend on context and culture. In relation to context, timing is an important factor. Thus in terms of its likely receptiveness and effectiveness in influencing parties, encouragement of settlement should not occur before trust has been established, and therefore should come later rather than sooner in the mediation process. Another dimension of context is the relevant stage of the mediation

process, which is distinct from, though related to, the timing question. Thus there will normally be more latitude for mediators to encourage settlement in the separate sessions than there will be in joint session. The attitude and circumstances of parties will also be an important contextual factor. If parties jointly ask the mediator for an opinion, it is likely to be experienced as less coercive than if they have not done so. Likewise if a party [page 259] has professional advisers or lay supporters present, he or she is less likely to experience pressure or coercion (at least from the mediator) than is a party without such support. Finally, as pointed out in the introduction to this chapter, whether a mediator intervention is one of influence, pressure or coercion will also depend on the personal disposition of a party, their educational status and emotional stability, and how as individuals they react to the various forms of encouraging settlement referred to in this chapter. It’s all in the framing John Haynes (1994) describes the importance of preserving parties’ rights to make outcome decisions, whilst assisting them with information or opinions through appropriate framing. For example the following are statements from a mediator: 1. 2. 3. 4.

‘You could sell the house.’ ‘Have you considered selling the house?’ ‘You may wish to consider selling the house.’ ‘Is selling the house one of your options?’

Haynes considers that options 1 and 2 are commands, statement 3 is information that gives the party the right to choose (although in some cases it can be received by the party as a command), and statement 4 places the option in the context of a range of options, leaving it to the party to choose, and it is preferable to

the other three.

Practice standards 8.37 Certain mediator practice standards and codes of conduct, and some regulations, attempt to provide clarity and consistency in this area. For example reg 29(d) of the Family Law (Family Dispute Resolution Practitioners) Regulations 2008 stipulates that a FDRP must not provide legal advice to any of the parties unless (i) the FDRP is a legal practitioner; or (ii) the advice is about procedural matters. However, FDRPs are obliged to provide advice on (i) the fact that a parenting order is available and desirable; and (ii) where to acquire help and assistance in establishing a parenting order. In addition they may be required to provide advice regarding the availability, viability and desirability of an equal time parenting arrangement: see s 63DA of the Family Law Amendment (Shared Parental Responsibility) Act 2006. While this scheme embodies a certain underlying philosophy, and indicates with some specificity when advice may be provided, it does not altogether resolve the definitional issues referred to in this chapter. For example in situations where non-lawyer mediators and FDRPs are not permitted to give advice, the distinctions between information, opinions and advice may not be self-evident. [page 260] The NMAS Practice Standards go further in this regard, addressing the issue of encouraging settlement in some detail and in differentiating between providing expert information, on one hand, and other sorts of encouragement, on the other. As indicated previously the Standards recognise that in some mediations, parties may seek expert information from mediators and that this will not infringe upon their self-determination. Here ss 2(6) and 10 of the Practice Standards are most relevant. In describing the

mediation process, s 2(6) of the Standards recognises that provision of expert information is consistent with mediation if the information: is couched in general and non-prescriptive terms; and is presented at a stage of the mediation that enables parties to integrate it into their decision-making. Section 2(6) provides an illustration of acceptable information, namely the provision of general information and

expert

… a referral to resources that could be used by parents in a family dispute to determine the impact of options upon children or other family members.

Sections 10(1) and (2) of the Standards permit a mediator to provide parties with expert information only if: the mediator is qualified by training or experience to do so; the mediator has the parties’ informed consent (see also 8.7 and 8.36); the expert information is couched in general terms; and the expert information is provided while the mediator is conducting the mediation. However, while expert information is acceptable in certain circumstances, the NMAS Practice Standards prohibit more interventionist forms of encouragement to settle. Section 10(3) states that mediators: … shall not explore or provide interpretations of behaviour or statements with the aim of providing assistance of a counselling nature nor should they provide legal advice.

Thus mediator interventions that move in the direction of counselling and legal advising would appear to exceed what is acceptable in mediation. Mediators may, however, wish to refer clients to other professionals such as counsellors or lawyers where they consider this appropriate: see ss 8(1) and 9(6) of the Practice Standards. Finally, in terms of procedural fairness, s 9(8) of the Standards provides that:

The primary responsibility for the resolution of a dispute rests with the participants. The mediator will not pressure participants into an agreement or make a substantive decision on behalf of any participant.

Thus under the NMAS framework, mediator interventions must fall short of pressuring parties into a settlement and mediators must be careful not to make decisions for parties on any substantive aspect of the dispute. The latter [page 261] (prohibited) intervention could, for example, occur in a separate session in relation to a party who is looking for a mediator to tell him or her what to do in relation to a concrete offer that has been made by the other side. The principles of the NMAS therefore generally promote a facilitative model of mediation. While they provide useful guidelines on what types of encouragement are not acceptable, definitional difficulties remain, for example with the interpretation of what amounts to ‘putting pressure’ on parties in s 9(8) of the Practice Standards. 8.38 Despite the facilitative focus, the NMAS recognises the realities of what is commonly referred to as evaluative mediation practice: see 1.29. To this end the Practice Standards s 2, which deals with the description of a mediation process, introduces the concept of a ‘blended process’ in paragraph (7): Some mediators may use a ‘blended process’ model whereby they provide advice. These processes are sometimes referred to as ‘advisory mediation’, ‘evaluative mediation’ or ‘conciliation’. Such processes may involve the provision of expert information and advice, provided it is given in a manner that enhances the principle of self-determination and provided that the participants request that such advice be provided. Mediators who provide expert advice are required to have appropriate expertise (see Approval Standards at Section 5(4)) and to obtain the consent of participants prior to providing any advisory process. [See also s 2(4) of the Approval Standards.]

Accordingly blended processes may involve a greater range of encouragement interventions such as giving advice, offering opinions

and being critical and judgmental of parties, all of which have been canvassed in this chapter. The reference to s 5(4) of the Approval Standards in the above-quoted NMAS provision relates to the training, education, experience and other professional requirements that NMAS accredited mediators must comply with should they wish to offer blended processes generally. These and other relevant requirements (see ss 3(4) and 4(2) of the Approval Standards) are discussed in Chapter 12: see 12.4-12.13. In addition, each time a NMAS accredited mediator wishes to conduct a blended process, he or she must obtain the consent of the parties. Section 10(5) of the Practice Standards specifies that such consent is normally obtained through an Agreement to Mediate or similar document. Through the mechanism of the blended process the NMAS Standards seek to ensure that mediation is recognised primarily as a facilitative process and that where more evaluative interventions are warranted mediators have the requisite expertise and parties are fully informed.

Creating the balance 8.39 There is little doubt that in practice some mediators are chosen because they have a reputation for being ‘assertive’ in their interventions. Likewise a particular model of mediation might have been chosen because it allows a mediator to make a greater contribution on matters of content as opposed to matters of process. [page 262] At the same time, some methods of encouraging settlement referred to in this chapter would be regarded by many as illegitimate exercises of mediator power in many circumstances. As indicated previously, the NMAS Practice Standards make strong statements in this regard and offer more evaluatively inclined mediators the option of offering their clients a blended process.

This all suggests the need for a delicate balance between assertion and oppression, between persistence and pressure, and between patience and endurance: Charlton and Dewdney (2004: 114). In some ways this is easier to understand in the context of mediation simulations, case illustrations, observation studies and other concrete mediation situations rather than from the pages of a book. For new mediators, it is recommended that they err on the side of encouraging settlement as little and as mildly as possible.

Mediator Learnings 8.40 This chapter offers the following learnings for new mediators. 1. Care needs to be taken in the use of key terms relevant to the topic of encouraging settlement because of the flexibility of language and the different connotations words have for different people. 2. There is a spectrum of skills and techniques that mediators can use to encourage settlement which can be differentiated according to levels of intervention. These include providing expert process and substantive information, offering opinions, advising, reality testing, asking critical, judgmental and suggestive questions, assisting with risk assessment, and using the mediator’s power in other ways to move parties towards settlement. 3. The wisdom of any attempt to encourage settlement has to be assessed in the context of the concrete circumstances of a mediation, including the stage it has reached, timing, party expectations, support and resources available to the parties, and the potential dangers of this type of mediator intervention. 4. While the intention and style of a mediator is a factor in evaluating the wisdom of these interventions, it will also depend on parties’ subjective reactions to them as to whether or not they are appropriate and effective. 5. Practice Standards and legislation provide initial guidelines relating to appropriate and inappropriate ways that mediators can encourage settlement.

Tasks for New Mediators 8.41 All professionals have different sources of power in the practice of their particular professions. (A doctor’s power is different in nature to that of a teacher.) What is there inherent in the nature and process of mediation that [page 263] gives particular powers to mediators? What are some of the dangers created by these powers? 8.42 Refer to the practical illustrations of ways in which mediators can encourage settlement referred to above at 8.29-8.30. Which of these interventions do you personally think are legitimate and which are illegitimate? Now consider the NMAS Practice Standards (reproduced in Appendix 6A). Which of the interventions do you think are permitted and which are not permitted according to the Standards? 8.43 Observe a DVD of a simulated or real mediation and make notes of the different ways in which the mediator encourages settlement as described in this chapter. Are there any ways in which he or she encourages settlement that are different to those referred to here?

[page 264]

CHAPTER 9

Variations in the Mediation Process Introduction Multiple Meetings Shuttle Mediation Using More Than One Mediator Mediation by Telephone Conference Online Mediation Blended Processes — Multiple Roles for Mediators Other Variations in the Mediation Process Mediator Learnings Tasks for New Mediators

Introduction 9.1 There are many possible variations that can be made to the ‘standard’ mediation process described in Chapter 5, as mediation is adapted and modified to suit the circumstances in which it is being used. The variations could be required or dictated by a variety of circumstances: the needs of parties, the nature of a dispute, the resources on hand, the amount of time available, the strategic judgments of mediators, and so on. Generally it will be mediators who make discretionary decisions in relation to most of these variations but they may also be required by the circumstances of a mediation or be requested by parties and their advisers. As explained in 4.35 NMAS accredited mediators are required to provide

[page 265] parties with an ‘opportunity to reach agreement about the way in which the [mediation] process is to be conducted’: s 3(2). This chapter deals with a few of the many variations that can be made to the standard mediation process.

Multiple Meetings 9.2 The dominant training and practice model in Australia envisages a single ongoing mediation session, subject to breaks and possible adjournments. However, there are variations to this practice and it is important to bear these in mind when custom designing a mediation process. Mediations can be held over two or more separate sessions conducted on different days, weeks and months. Generally speaking mediators can, in their discretion, call adjournments after consultation with parties. They can also call for breaks and postponements in the process in response to reasonable requests from parties or their advisers for the same. There are many reasons for convening adjournments. Some relate to the subjective requirements of one or both parties, such as their need for some respite from intense emotions or the requirement for external assistance and advice. Others relate to the demands of the circumstances of a particular case, such as the need for further information, planning and deliberation, or a fresh mandate from constituents. 9.3 In some mediation programs there is a policy of having multiple meetings as standard practice. This is the case, for example, in parenting disputes provided by some services. Many workplace mediators also adopt this practice. Here parties might meet for two hours per week over a period of one or more months, the length of mediation sessions and their frequency varying according to parties’ needs. In between sessions parties are able to consider progress made, to reflect on, or even try out, provisional agreements, to acquire

information, or to make arrangements for the subsequent mediation meeting. The adjournments also serve to prevent either party feeling pressured into making hasty decisions. In some practice areas, such as commercial mediation, adjournments are held with some reluctance for fear that the momentum of negotiations may be lost and parties might drift further apart during the period of interruption. That said, the multiple meeting approach is useful where there is likely to be an ongoing relationship of some sort between parties as it helps build the relationship incrementally and enhance the sustainability of mediated outcomes. Further, where parties are dealing with communication and relational issues they are able to use the time between sessions to acquire and practise new skills. For example in workplace mediations parties may engage in communication or leadership coaching between sessions. In this way a mediation can continue to build upon what is happening for each of [page 266] the parties in the ‘real world’. In single session mediations, by comparison, there may be a greater disconnect between the safety of the mediation space and parties’ outside realities. While the multiple session approach is less suitable where parties urgently require outcomes, it may be feasible to follow a single session mediation which results in a substantive agreement between the parties with a series of sessions to deal with ongoing relational issues. 9.4 Where multiple meetings are held it is advisable to commence each new session with a review of developments since the last meeting. This allows both parties to indicate where they currently stand on important issues, what changes have occurred since the last meeting, and what new information has been obtained. It also provides the opportunity to reconsider provisional agreements and here it is sometimes discovered that the ‘temporary has become the permanent’: see the case illustration.

Case illustration: Making the temporary permanent One of the advantages of multiple meetings is that they can use the time dimension to secure agreements that would otherwise be problematic to achieve. In a mediation scheduled to run over several sessions, the parties agreed to an interim arrangement for the four-week period between the two first meetings. This agreement was acceded to with some reluctance by both parties, and only because it did not involve a permanent commitment by them. When the second mediation session was held the interim arrangement was reviewed, and both parties agreed to commit to it permanently and they moved on to discuss other issues. The parties had felt safe in committing to it in its temporary form and then, having satisfactorily ‘road-tested’ the arrangement, were able to commit to its continuation on a permanent basis. 9.5 Unfortunately the converse can also occur and after an adjournment there can be some ‘slippage’. This is where one or both parties resiles from previous agreements or raises unexpected new issues for the negotiations. While this is not easy to avoid, some mediators attempt to prevent it by having personal contact with each party during the adjournment and discussing with them the possible consequences of any slippage for which they might be responsible. 9.6 Yet another risk with multiple sessions is that over time one of the parties may become ‘addicted’ to the mediation process. While this may be flattering to the mediator, it is essential to know when to bring the process to a close and ‘quit while you’re ahead’. The following case illustration demonstrates the point. [page 267]

Case illustration: Quit while you’re ahead

In a workplace scenario involving three parties working together in a professional practice, the parties agreed to meet weekly for two hours at a time. Initially the parties committed to three mediation sessions. At the third session they agreed to another three sessions, this time at fortnightly intervals. As the mediation progressed, interim agreements about a number of workplace issues were reached and two of the parties had agreed to undertake various types of communication coaching (funded by the practice) between mediation sessions. Each week a review was conducted in relation to the interim agreements and the progress of the coaching; refinements to the agreements were made and new issues addressed. At the sixth session, the mediator congratulated the parties on their commitment and their progress, indicating that they now appeared to be better equipped with skills to deal with conflictual workplace issues themselves. ‘What do you mean?’ interrupted one of the parties. ‘You will come again, won’t you? We all look forward to these sessions now!’ After some serious reality testing by the mediator, the parties agreed to end the mediation, continue the coaching, and schedule a follow-up two months down the track.

Shuttle Mediation 9.7 Reference was made in Chapter 5 to the concept of ‘shuttle mediation’. This involves parties being based in different physical locations, whether rooms or countries, with the mediator moving continuously between them, shuttling messages back and forth as their sole means of communication. The system is named after the ‘shuttle diplomacy’ that sometimes occurs in international disputes involving nation states and political groupings. It was pointed out previously that shuttle mediation should be distinguished from a mediation in which there is a series of separate meetings (see 5.68), as there are practical and qualitative differences between the two. The NMAS Practice Standards s 7(3)(b)(viii) identifies use of shuttle mediation as an area in which a competent mediator must be able to demonstrate skills.

Differences in shuttle mediation 9.8 Shuttle mediation differs from a series of separate mediation meetings in the following ways: There are reasons for the parties being based in separate rooms or venues, and it is understood that the full mediation will be conducted in this way, unless the parties make a conscious decision to come together. All the communications are conveyed through the mediator, which gives the mediator enhanced potential control and power. The usual confidentiality principle is modified to allow the mediator to convey messages between parties. [page 268] 9.9 Because of these differences, it is important that mediators not transform a conventional mediation into shuttle mediation by default, that is by lapsing into a prolonged series of separate sessions. There should always be a specific reason for shuttle mediation, and where a mediation does not begin in this mode parties should be made aware of any conversion into shuttle and of its implications for their communications and the confidentiality principle. In this regard the NMAS Practice Standards s 6(4) states that: If the mediator holds separate sessions with a participant, the obligations of confidentiality concerning those sessions should be discussed and agreed upon before the sessions.

When to use shuttle mediation 9.10 Mediators might consider the use of shuttle mediation in the following circumstances: see the NMAS Practice Standards s 4(2)(c). There are legal or safety reasons why parties cannot be together,

for example the existence of domestic violence orders. One of the parties feels intimidated or afraid or there are other high emotions which would be exacerbated by meeting in each other’s presence. There is a gross imbalance of bargaining power because of differences in verbal ability, the sizes of groups, numbers of advisers, and the like. There would be very poor communication in joint sessions because of linguistic or cultural factors. Parties cannot afford to be seen together, for example in international disputes or high-profile domestic disputes involving political parties or ethnic groups. 9.11 In these circumstances it could be the case that there will either be shuttle mediation or no mediation at all. Some commentators, however, argue that shuttle is not true mediation in that parties do not work collaboratively on the problem, they do not learn how to negotiate with one another, and they do not have opportunities to improve their relationship for the future. From this perspective, shuttle mediation should be used as rarely as possible.

Practical considerations 9.12 Mediators need to attend to a number of practical matters in relation to shuttle mediation. Here is a list of such considerations for shuttle mediators, with examples of the kind of language they might use in dealing with them: Explain to parties the ground rules and the practicalities of the process: ‘Because this is shuttle mediation, I shall be transmitting all messages between you and the others. Please be patient when I am not with you as this kind of mediation can take some time. However, when I leave you to see the others, I shall suggest matters on which you can do some homework while I am away. You will also have plenty of time for your coffee fix …’

[page 269] Establish a clear basis for what can be disclosed and what is to remain confidential: ‘You should indicate clearly what you would like me to say to the others and what should remain confidential. This includes not only facts and figures, but also reasons and explanations both for your proposals and for your responses to their proposals. Only if I know what is confidential can I avoid unwanted disclosures.’ Be alert to parties’ sensitivities over the amount of time spent with the other side: ‘I shall now convey your proposals to the other side and I expect to spend about 15 minutes with them. However, in shuttle mediation it is difficult to predict exactly how much time I will spend with either of you. If I am going to be longer than expected, I shall come back and let you know.’ Avoid losing impartiality by becoming the advocate of one or both parties: ‘Now I can tell them why you are not accepting their offer, convey your counter-proposal to them, and provide the explanation and reasoning which you have just given me. However, I cannot become your advocate and persuade them to accept your proposal, just as I cannot do that to you with their proposals.’ Take precautions against making mistakes in conveying parties’ messages to each another: ‘Now your offer is quite a complex one, so I would like to write down the various dollar amounts and schedule of payments that you are proposing, and then go over with you the justification for your proposal which you would like me to present to them.’

Some potential drawbacks and dangers in shuttle mediation 9.13 There are a number of potential drawbacks and dangers in shuttle mediation. The process itself has transaction costs not encountered in non-shuttle mediation, for example it could take considerably more time and it is susceptible to mistakes and

misunderstandings. Communication is liable to be distorted and to focus more on substantive and less on relational content. From the point of view of the parties, shuttle mediation can create dynamics not usually found in ‘joint session’ mediation. Because they are each located in their own ‘locker rooms’, there is a danger that parties will engage in bravado, fighting talk and team ‘war cries’, and even that they will backtrack without shame in the absence of the other side. This is because it can be easier to engage in positional bargaining, threats, bluster and other negotiation tricks when not facing the other mediating party. Shuttle mediation can also result in parties attempting to persuade the mediator instead of each other, and in unconsciously using the mediator as their agent to advocate their case to the other side. 9.14 Shuttle mediation also creates the potential danger of an abuse of mediator power deriving from his or her position as the sole conduit of [page 270] information between parties. This point can be illustrated by reference to the range of options which a shuttle mediator has when asked to convey an offer from one party to the other. Case illustration: The power of conveying offers Assume that there is a shuttle mediation in a testator’s family maintenance dispute relating to a deceased father-husband’s will. The parties involved are the executor of the estate, the deceased’s widow and his two sons. There is agreement between the relatives that reasonable provision should be made for all of them and the executor has agreed to go along with any satisfactory proposal to which they can commit. The widow wishes to make a monetary offer to her two sons through the shuttle mediator. Here the mediator has several options. He can convey:

1. The cold factual offer without anything else: ‘Your mother is offering you each $50 000 and one-quarter of the proceeds of the family farm when it is sold in 10 years’ time.’ 2. The monetary offer with other information, which could be general or highly selective, explaining and justifying the offer: ‘Your mother is offering you each $50 000 because that will allow you to finish your education abroad and one-quarter of the proceeds of the family farm in 10 years’ time because she would like to retain it and bring to fruition your father’s vision of a 20 000 tree olive orchard producing oil for export.’ 3. The monetary offer together with the emotional dimensions surrounding it: ‘Your mother is offering you each $50 000 and one-quarter of the proceeds of the family farm when it is sold in 10 years’ time. She feels very upset at the strain this dispute has placed on the family, she is sad about the fact that some of your father’s wishes might not be carried out, and she is concerned that the value of the estate is diminishing while you quarrel over it. She feels that her proposal will put all this behind you and improve family relations.’ 4. The monetary offer enclosed in ‘giftwrapping’ to make it more palatable to the others: ‘Now your mother is committed to coming to an agreement today, she wants that to be fair and reasonable to both of you as well as to her, and she would like to talk about family reconciliation once this is settled. She would also like you to be consulted on the development of the olive project. Now her offer at the moment is $50 000 …’ 5. The offer plus the mediator’s intimation as to whether there might be a further offer: ‘Well at this point in time your mother would like to make an offer. This is based on the various discussions we have had so far. It might be that with further information and negotiation her view will change. However, at the moment her offer is $50 000 …’

Each of these approaches has advantages and disadvantages and mediators have to make tactical judgments as to which is appropriate

at different stages of the mediation proceedings. [page 271] 9.15 Mediators also have considerable power in relation to the timing of offers, to ‘coaching’ parties about negotiation, to getting them to anticipate possible responses to their offers, and to other features of the negotiation process referred to in this book. It is conceivable, for example, that a mediator might be tempted to refuse to convey certain offers and accompanying sentiments because, in his or her judgment, it would be unwise to do so. He or she might ‘misrepresent’ an offer, for example indicate to one side that they will get $x when the mediator knows that the other side is in fact offering the greater amount of $x + y, so that the ‘excess’ of $y can be disclosed later when, in the mediator’s discretion, the timing is ‘ripe’ to do so. 9.16 These possibilities are referred to here without any approval, but to highlight the extensive power which mediators derive from shuttle mediation. In fact the above strategies have considerable potential dangers if the mediator is caught out or the strategy backfires and parties lose both trust in the mediator and faith in the process. There could also be disciplinary or legal action taken against the mediator.

Ways of improving shuttle mediation 9.17 Despite the drawbacks and dangers, shuttle mediation is a fact of life in many situations where mediation would not take place in any other form. Here mediators should be transparent with parties about some of the potential problems and about ways in which they might be kept in check. They should also attend to practical matters, like keeping written notes of offers and counter-offers, or getting parties to write these out for transmission to each other. Where shuttle mediation is an option but is not obligatory, mediators could explain to parties the advantages of not using it unless necessary. In relation to the power of mediators and the temptations it brings, there is sometimes an option of having co-mediators conduct the shuttle

process so that they keep each other honest: discussed at 9.19 below.

Using More Than One Mediator 9.18 The NMAS Practice Standards s 1(4) expressly recognises that mediators may practise as solo or co-mediators. In co-mediation there are two or more mediators. The co-mediation process is essentially the same as that in solo mediation: mediators’ functions are similar, and the same skills and techniques are required. What is different is that there are additional techniques, skills and behaviours that require co-mediators’ attention, and the preparation requirements are even more important to the effective conduct of the process.

When to adopt co-mediation 9.19 The following are situations in which it might be appropriate to have more than one mediator: Where additional mediator resources are needed — the ‘two heads are better than one’ principle — for example in a lengthy mediation [page 272] over policies in a large organisation which would require considerable mediator energy, patience and persistence; in multiparty mediations where people management plays a major role; in mediations involving considerable complexity of a legal, financial, cultural or other nature: see the NMAS Practice Standards s 3(3)(a) in relation to co-mediation and cultural factors. Where balancing and matching are needed in respect of the gender, race, age or other attributes of parties and mediators — for example some individuals might feel uncomfortable where the mediator, other party and all the advisers are of the gender other than their own. Where a specific professional background or experience is needed

for a particular dispute, for example an engineer in a construction dispute or a social worker in a parenting dispute, with one mediator being a mediation process specialist and the other a specialist in the relevant substantive field. Where there is a need to stabilise the interpersonal dynamics because there might be attempts at manipulation or ‘triangulation’, four people being a more stable number than three. Where there is a need to provide experience and continuing training for new mediators, and additional work for the mediation profession. Where, as referred to in the previous section, there is a need to provide greater accountability, with co-mediators able to keep each other honest in their confidential and sometimes powerful roles. In addition co-mediation is only a feasible prospect where circumstances and resources allow for both the additional expense of an extra mediator and the prospect of the mediation taking a longer time.

Creating a favourable environment in comediation Planning and organisation 9.20 In co-mediation the presence of an additional person requires attention to seating arrangements. Usually co-mediators will sit next to each other and apart from the parties to symbolise their ‘partnership’ in a mediator team. Seating arrangements should suggest neither that one comediator is the advocate or champion of a particular party nor that one co-mediator is hierarchically superior to the other (although other factors may suggest different levels of mediator experience). With a round table or circular seating arrangement all those at mediation can be seated equidistant from one another without detracting from the co-mediators’ leadership position and their status as partners in the mediator team. Subject to the qualifications

mentioned in the previous section, consideration can also be given in the mediation planning stages to ‘creating balance’ in co-mediation teams along lines of professional qualifications, gender, age or ethnicity. In addition co-mediators should give consideration to all the pre-mediation preparation responsibilities referred to in previous chapters. They should pay particular attention to how they will conduct the process together. [page 273]

Conduct of the process 9.21 The process and stages of co-mediation are the same as those for solo mediation. However, co-mediation requires common understandings as to the different roles and functions of the comediators and the division of labour between them. This is usually more important during early stages of a mediation when there can be a clear division of roles in the mediator’s opening statement (MOS), in note-taking, in attending and following during party statements, in developing the list of issues, and in using the whiteboard. Later in mediation there tends to be no clear division of labour between comediators. 9.22 Teamwork and common understandings are important ingredients of successful co-mediation and these are greatly assisted by mediators having attended the same training program where ways of dividing and sharing the tasks can be discussed and role-played.

The division and sharing of labour for comediators 9.23 Here is one system for dividing the mediation tasks: Meeting, greeting, seating: shared by mediators on an informal

basis. Mediator’s opening (MOS): clearly divided between mediators, each presenting different parts of the MOS in alternating roles. Party presentations: one mediator (M1) attends and follows and the second (M2) takes notes; these roles can be alternated for the second speaker. Summaries: given by mediator who took notes (M2). Identification of common ground and listing of issues: lead taken by first mediator (M1), with open collaboration between mediators and with parties. Writing up of issues and prioritisation: managed by second mediator (M2), with input from the first (M1). Separate meetings: mediators stay together when meeting with each party. Drafting: either co-mediator can be principally involved with drafting, the other checking the agreement against the agenda and ensuring matters of detail are accurately recorded.

Using each mediator’s expertise 9.24 Where co-mediators have been chosen for their complementary expertise, each may be more active than the other at different stages of a mediation. For example an engineer co-mediator in a construction dispute would be expected to have a more active involvement in discussion of technical matters, while a co-mediator skilled in the mediation process would be expected to be more active in the early stages with active listening and issue identification. There is no objection to these shifts in the relative primacy of each. [page 274] The ‘non-active’ mediator can still be performing a useful function in observing parties’ reactions, taking notes, considering options, and otherwise observing and analysing the negotiations. These activities can provide the basis for an appropriate contribution at later stages in

the process. In separate meetings there might also be unequal contributions because of mediators’ respective strengths, experiences or personal attributes. Thus it might be appropriate for a male comediator in a family mediation to speak more in the separate meeting with the husband. Co-mediators can still model respect and equality even though they are contributing in differing ways and to different degrees. However, they should not model to the parties, whose collaborative endeavours they are attempting to facilitate, a hierarchical relationship between themselves.

Avoiding bias and partiality 9.25 Where co-mediators are selected to reflect the age, gender, class or ethnic attributes of different parties, they should be conscious of the possibility that a particular party might perceive them as their representative or champion. Where they suspect that this is happening they should be attentive to their own body language, be observant of the other party’s reactions to the proceedings, reemphasise at appropriate points their impartial role in the mediation procedure, and confer with one another on this issue when there is opportunity to do so.

Staying together 9.26 Co-mediation is a team effort in which co-mediators should at all times operate together and not separately. They should meet and greet parties together, be present together throughout joint sessions, and remain together during separate sessions as opposed to each meeting with a different party. Co-mediators may call an adjournment so that they can meet on their own to jointly discuss progress in the mediation, to review differences in their approaches, or just to deal with their individual problems such as emotional fatigue. There is no reason not to be transparent to parties about the reasons for calling such an adjournment wherever this is possible.

Improving the communications in co-

mediation 9.27 Co-mediators both have a responsibility to improve parties’ communication in the various ways referred to in Chapter 6. They also need to model effective communication between themselves for the benefit of the participants. This includes not interrupting one another, listening actively to what each other is saying, asking clarifying questions of each other where appropriate, and reframing each other’s statements. It is also useful for ‘active’ mediators to ask their co-mediators if they have anything to add before moving on to the next stage of a mediation. This simple technique helps comediators build rapport with each other and move forward as a team with opportunity for input from both of them at each stage of the process. Importantly, this technique minimises the risk of tension arising [page 275] between co-mediators where one of them, unbeknown to the other, wishes to pursue a particular topic or line of discussion. In all these ways co-mediators are modelling for the parties the constructive communication techniques required for problem-solving. Appropriate body language provides a subtle way in which comediators can communicate with each other, but it can also be helpful for comediators to be transparent to parties about communication differences between themselves. The communication techniques referred to in this book have relevance to the way in which comediators communicate between themselves.

Facilitating negotiations in co-mediation 9.28 Co-mediators have a responsibility to facilitate the negotiations of the parties in the various ways referred to in Chapter 7. They also need to model effective negotiation skills between themselves for the

participants’ benefit. This is particularly relevant where co-mediators have differences between themselves about the process or about the form of their interventions. Here interest-based negotiation is the appropriate behaviour that parties need to see their skilled helpers demonstrate. Needless to say co-mediators may need to adjourn from time to time to discuss ways of overcoming past negotiation difficulties and avoiding them in the following sessions. However, as indicated above, it is often possible and desirable for co-mediators to negotiate between themselves without any interruption of the process. 9.29 The following dialogue illustrates how co-mediators might negotiate in an interest-based way over an assumed difference between them. The comediators are Nicole and Keith and the parties are Charlene and Albert. Case illustration: Co-mediators negotiating Nicole: Now Charlene has asked for a separate meeting with us. Shall we consider that request now? Keith: Yes, as I understand it Charlene would like some time out to consult her lawyer and to get some advice on Albert’s offer. Nicole: Yes, and it appears that Albert is interested in getting to a more advanced stage in the discussions so that these consultations will not have to be repeated. He is also concerned about the overall time question. Keith: Well, we do have some time limitations. We also agreed at the beginning that Albert and Charlene could obtain outside advice when that was necessary for them. What if we continue for about 15 minutes to keep up the momentum and then adjourn for a short period so that both Charlene and Albert can obtain professional advice? Nicole: Yes, that might meet the various interests. Charlene and Albert, how would that arrangement suit your needs?

[page 276]

Avoiding traps in co-mediation 9.30 Traps are preventable problems caused by mediators themselves or by the predictable difficulties inherent in negotiation dynamics. Some of the general traps for mediators are referred to in Chapter 11 of this book. Other traps derive from the situation of having more than one mediator at the head of the table.

Good cop-bad cop routine 9.31 This involves a ‘bad cop’ co-mediator using his or her power forcefully and coercively, and a ‘good cop’ co-mediator being more empathic as a device to draw out a reticent party who perceives the ‘good cop’ as having a sympathetic ear. This problematic behaviour is caused by mediators watching too much bad television. Co-mediators should avoid any impression of playing this routine as they could jeopardise the neutrality of one or both of them and be seen as manipulative and coercive (which the routine undoubtedly is).

Modelling inequality or lack of teamwork 9.32 As already indicated above, co-mediators should not model any sense of hierarchy or inequality between themselves. This requires particular attention where they have different levels of experience or expertise, and where societal inequalities based on class, gender or race are reflected in the mediator team. They should also be mindful not to inadvertently model a lack of teamwork when their objective is to move parties towards collaborative problem-solving themselves.

Appointing incompatible personalities 9.33 Co-mediators should not be appointed where there are serious

incompatibilities in their personalities. As discussed previously, mediation provides the opportunity for mediators to model constructive problem-solving between themselves. This benefit of co-mediation is likely to be seriously jeopardised with incompatible teams of comediators. While this does not have to involve personality testing for co-mediators (nor character references), it does require some selectivity and openness in their appointments.

The patron syndrome 9.34 Where co-mediators have been selected to match the attributes of parties, they should ensure they are not perceived as the patron or champion of ‘their’ respective party. This problem has been referred to above: see 9.25.

Preparation for co-mediation 9.35 The following questions are important for mediators to consider in their joint preparation for a co-mediation: How can we ensure appropriate ‘balance’ in the mediation team? Where it is not possible to match gender, age and other attributes, how can we reassure and encourage the mediating party who is not [page 277] ‘matched’ (for example a teenager where both the mediators and other party are middle-aged)? How should we divide our functions during the early part of the mediation? How should we deal with differences of opinion or strategy between ourselves during mediation? How can we model equality, effective communication and constructive problem-solving between ourselves for the parties’

benefit? How should we alert each other to problems that we think the other is causing? How should we signal to each other, for example where one of us wishes to pursue a particular topic or line of discussion? How can we make constructive use of each other in post-mediation debriefing?

Debriefing by co-mediators 9.36 The form and functions of mediator debriefing have been referred to previously in 5.85-5.86. Debriefing as between mediators in a comediation context is recognised by the NMAS Practice Standards s 7(1). There are two major objectives of debriefing between comediators. The first is to deal with any emotional discomfort or trauma which either of them is experiencing, and the second is to reflect on the skills and techniques which each mediator has demonstrated, or failed to demonstrate. In relation to the second objective, co-mediation provides at least two potential advantages when compared to solo mediation. The first is that it allows for immediate debriefing between mediators; it can be undertaken directly after mediation has concluded where it can be more accurate and undistorted than if undertaken later with outside mentors. The second is that it can provide an ‘objective’ evaluation of each mediator’s performance by someone who has observed it himself or herself — it does not rely solely on selfassessment, though this can be part of the debriefing process. Unfortunately, despite this great potential, our experience is that comediators are not always candid and open about each other’s performance. They may require an honest broker to facilitate the debriefing process.

Mediation by Telephone Conference 9.37 A mediation might be conducted by telephone conference in the following circumstances: where parties are geographically distant from

each other; where there is great urgency to resolve a matter; where resources do not allow for parties to come together in the same location; where there is concern over the safety and wellbeing of one party; or where there is a protection order in place which prevents the parties from being in each [page 278] other’s company. (In the latter cases it might still be preferable to arrange a shuttle mediation: see 9.7-9.17.) 9.38 Where there is a choice between having face-to-face mediation and telephone mediation, it should be borne in mind that the latter has several potential disadvantages: It is more difficult for mediators to establish rapport and trust with parties through telephonic conversations only. Mediators cannot observe and react to the non-verbal communications of participants, such as their body language. Separate telephonic meetings with each side lack immediacy and personal touch. It can be challenging to work with emotional issues on the telephone. One or more participants may feel uncomfortable or even intimidated by the use of the telephone for resolving their conflict. It is easier to tell fibs on the telephone than face to face in the presence of a mediator. Visual aids cannot be used to focus parties’ attention on an agenda, diagrams, facts and figures, and so on. There is less scope for parties to learn conflict management skills. Technology often follows Murphy’s law and goes wrong when it is most needed: see the case illustration below. 9.39 Where a telephone mediation is necessary or is chosen it would normally operate as follows. Pre-mediation activities are the same as for face-to-face mediations.

A date, venues for the participants and contact numbers are arranged for the mediation meeting. Confidentiality issues should be discussed with the parties, for example if they will call in from work or home and how confidential the discussions will be. The possibility of interruptions should also be canvassed, for example if a colleague were to walk in during a conference or, in the case of a party calling in from home, if children are there or the doorbell rings. (Celebrity clients might be concerned about reporters hacking in.) Mediators will usually have a number of telephone conversations with parties and their lawyers to discuss and arrange preliminary matters. Joint preliminary conferences are also possible using telephonic technology. A conference line is set up with the carrier, with a separate line for each party and for each adviser who is not at the same location as their client (to further complicate matters). It is advisable to use speaker-phones so hands are free for taking notes or retrieving documents, and this is a necessary arrangement where there are several persons at the same venue, for example a client, an adviser and a witness. Alternatively, internet technology such as [page 279] Skype can be used to arrange conference meetings: see 9.41-9.56 below on online mediation. Mediators follow the standard stages of mediation. Parties should be asked to identify themselves each time they speak as there can be damaging confusion over who says what — for example Party A may think that a ‘suggestion’ from the mediator is an offer or concession from Party B. Confidentiality requires particular diligence. In relation to separate meetings, telephone technology allows mediators to talk with one or a select number of participants only, while the conference connection is maintained. When this technology is used correctly, it can be a highly convenient method for conducting separate and confidential sessions. However, the safest arrangement is to disconnect the conference line

and make individual contact with each party in turn, before returning to the conference call. Where one party indicates they are leaving the room for a consultation, it is dangerous to speak with the other party confidentially as it may not be apparent when the former party returns. When it comes to finalising the agreement it is advisable to use faxes or email to circulate drafts while all parties are still present and not to ‘leave the finalisation until later’. 9.40 Here are some additional guidelines for tele-mediations, all based on harsh lessons of experience: Prior to the conference call, mediators should attend to practical matters such as confirming the time zones of participants, ensuring the Agreement to Mediate is signed (and the relevant participants have a copy of it), and checking the telephone connection. Mediators should have a brief discussion with each party shortly before the conference link-up. Mediators should direct that the discussions not be recorded by parties, or at least develop a common policy on this issue with the parties. Mediators should ask each party to disclose who is physically present with them during the mediation so that this does not complicate the situation later. Needless to say there is no guarantee that others will not also be present. Because of the possibility of misunderstanding and confusion, mediators need to listen harder, and ask clarifying questions and summarise more frequently. Mediators should be particularly diligent about noting and recording the concessions and agreements of the parties so there is no misunderstanding in this regard. Where a mediator is in the same building as one of the parties they should allow the client to leave the premises first so there is no post-mediation contact with that party alone. [page 280]

Case illustration: Murphy’s law comes to mediation In a testator’s family maintenance mediation conducted by telephone conference the following applications of Murphy’s law provided some ‘lessons learned’: 1. There were four separate lines, one for the two co-mediators and one for each of the three parties and their advisers. During the exploration stage one party and their adviser seemed to be silent for an extended period. Upon investigation it transpired that they had been accidentally disconnected and had missed at least eight minutes of the discussions. 2. At one point a co-mediator made a settlement ‘suggestion’ without prior identification of who was speaking. One of the parties seized on this proposal, thinking it was that of another party of the same sex as the co-mediator. It took some time to convince them that this was not so. 3. Late in the mediation it became obvious that there were frantic discussions taking place at the venue of one of the parties, resulting in a significant slowdown of the process. It transpired that the party had invited four other family members into the room to confer on the impending settlement, and this incident almost caused one of the other parties to abort the mediation. 4. As the co-mediators left their room after the mediation they were accosted by a party who had been in the same building with the request that they witness their faxed copy of the agreement to ‘give it more weight’.

Online Mediation 9.41 Mediation forms part of the growing field of online dispute resolution, referred to by its acronym ODR. ODR is also referred to as online-ADR, e-ADR, eDR, cyber-ADR and automated ADR. The last term refers to processes which are fully automated and use computer

programs or other forms of artificial intelligence, such as blind-bidding and decision-making trees: see Katsh and Rifkin (2001: 61). The terms ‘online-’, ‘e-’ and ‘cyber-ADR’ all denote the fact that online dispute resolution has grown out of the application of information and communication technology (ICT) to alternative dispute resolution processes. Here a distinction can be made between traditional offline ADR, on one hand, and online-, e- and cyber-ADR, representing a new generation of ADR processes, on the other. The terms online- and cyber-ADR highlight the use of internet-based applications in ADR, while e-ADR and eDR are broader terms referring to electronic applications of ADR. Electronic applications extend beyond online applications to include the use of videoconferencing, (mobile) telephony, radio and other forms of electronic technology. [page 281] Australian courts, tribunals and private dispute resolution agencies continue to embrace new technology and to be innovative with the old. Computers, DVDs, scanners, faxes, telephones and internet applications are all used to some extent in these bodies for a range of different dispute resolution functions. Parts of this section on online mediation are drawn from Alexander (2010: Ch 10).

What technology is used for online mediation? 9.42 In the world of online mediation the technology is referred to as ‘the fourth party’. The term ‘fourth party’ describes technology as more than a means of delivering a dispute resolution service through the use of information and communication technology. The concept suggests that technology changes the dynamics of the conflict resolution process, opening up new and imaginative ways to resolve disputes as well as introducing risks for online mediation users. This point is explored further below: see 9.49. Technology can be applied to conflict resolution processes in

different ways. Many practitioners utilise conventional forms of information technology such as email and telecommunications to accompany face-toface dispute resolution processes. For example mediators frequently use email or the telephone to organise the logistics of a mediation and to hold preliminary discussions. In some social contexts there is a high level of user familiarity and trust with these conventional technologies. Less conventional but increasingly popular for resolving single-issue money disputes are automated ODR services such as blind-bidding. These platforms offer positional negotiation and a formula for calculating settlements without human third party intervention. Yet other forms of technology that have relevance to ODR applications and contexts include email, web forums, instant messaging, chat rooms, video-conferencing, e-room technology, mobile and smartphone technology (including SMS and MMS), artificial legal intelligence, blogs, VoIP (Voice over Internet Protocol), social networking sites, wikis, web maps (for example Google Maps) and geo-location services (such as Google Latitude). These technologies are changing the way in which we communicate and interact with one another, and will inevitably change the way we resolve conflicts. Readers unfamiliar with any of the aforementioned technologies are advised to engage in internet surfing and ask Google for enlightenment.

What are the main forms of online mediation? 9.43 The main forms of online mediation will now be described. Facilitated negotiation involves the provision of secure websites such as virtual collaborative workspaces or e-rooms for parties to exchange messages, share documents and engage in synchronous or asynchronous negotiations. Here facilitation is offered by the technology itself and the process rules established by the e-room provider, rather than a human mediator. Alternatively, a mediator might encourage parties to make use

[page 282] of e-rooms or the like as part of a mediation that also involves facetoface elements. This is a basic ODR service and is offered by a number of providers such as the Mediation Room and eBay’s Dispute Resolution Centre as part of their service portfolio. Automated negotiation uses software systems such as blind-bidding procedures. Automated negotiation is mainly used for monetary claims where only quantum is disputed. Participants can make consecutive bids that are independent settlement offers, without knowing the bids of the other party. Most providers offer three consecutive rounds of bidding in which claimants and respondents enter bids into a secure online website, unaware of the offers made by the other party. If the offers fall within a predetermined range — for example 20 per cent to 30 per cent of each other — automatic settlement ensues and the difference between the offers is split. No human intervention is required. Again the technology is said to be the facilitator. If the offers do not come within the settlement range, some providers recommend the parties to mediation or another form of ODR; others simply end the procedure. In automated negotiation, the so-called ‘fourth party’ technology facilitates a settlement of the dispute and effectively replaces a third party mediator. Automated negotiation has become popular in the United States for insurance claims arising from car accidents and personal injury claims. There have been some attempts to introduce blind-bidding platforms into Australian dispute resolution culture, but parties and lawyers continue to view such applications with some scepticism. The Mediation Room

and SettleOnline are examples of blind-bidding providers. Negotiation support systems allow the manipulation of negotiation variables for participants so they can consider a range of options and alternatives, and can provide an overview of negotiation stages (in mediation) and expert advice on strategies and outcomes. Mediators are able to use this type of technology to assist parties in their negotiations. Family Winner and IMODRE are two examples of this

development in Australia. Family Winner is a software package that assists people going through divorce to create rational options for trade-offs of assets and compensation. This can occur provided that: the issues can be described; the issues remain static; and points can be allocated to issues. The inventors, Bellucci and Zeleznikow, concede that this bargaining-type negotiation support system has its limitations as it does not consider all relevant parameters in family dispute resolution. For example where disputants’ preferences conflict with the interests of children and notions of justice the negotiated outcome is unlikely to be approved by a court. This is where it is useful to have the input of a human mediator and another platform, Family Mediator, offers a variation with the assistance of an [page 283] experienced (human) family mediator. Yet another family ODR platform is Asset Divider, which unlike Family Winner, allows users to input negative values as well as positive ones and recommends a percentage property split: see Abrahams and Zeleznikow (2010). Building on these family dispute resolution systems, a new development named IMODRE uses several web-based intelligent agents with knowledge of Australian family law and interest-based bargaining to advise parties on their BATNA, recommend a percentage split of marital property and facilitate an interest-based bargaining process including trade-offs: see Abrahams, Bellucci and Zeleznikow (2010). The system is said to add greater fairness to family property negotiations. It has an educative function in that it helps parties prepare for negotiations and can also assist mediators draft settlement agreements. It is not always clear where online negotiation stops and online mediation begins, as in the examples of Family Winner and Family

Mediator discussed above. However, online mediation generally involves the services of a homo sapiens mediator to facilitate negotiations between the parties. Services promoted as online mediation often feature communication handled mostly online via email, e-rooms or workspaces. Mediators are either independent professionals who hire e-room services to ‘meet’ with their clients or are selected from a panel provided by the mediation platform provider. Online mediation websites feature different spaces that allow for private sessions between the mediator and one party or between parties and their legal representatives. Shared spaces contain messages that are available to all parties and documents that parties have exchanged. Communication is mostly via written text, but some online services such as Online Family Mediation also use telephone and videoconferencing. In Australia the Mediation Room offers online mediation for a variety of disputing categories and it has collaborated with the Law Council of Australia to increase awareness and accessibility of ODR among Australian lawyers. The Mediation Room allows for the creation and protection of case files, anonymous brainstorming, audio-visual teleconferencing and desktop sharing. The platform also provides personality profiling and discourse analysis that is said to help ‘fill the gap’ when in-person mediation is not available. Generally mediators manage participants’ access in terms of who sees what and who talks to whom at any given time. In a move indicative of the increasingly ambiguous lines between virtual and real worlds, The Mediation Room now offers dispute resolution services in the virtual world of Second Life.

Online mediation: Opportunities and risks 9.44 When technology combines with dispute resolution, a new paradigm for conflict engagement emerges. In this paradigm questions arise about the extent to which the values and principles of online mediation are compatible with those of face-to-face mediation. For example: What is

[page 284] the impact of artificial legal intelligence on party autonomy? How does automation technology influence the flexibility of the process? What are the implications of digital transcripts of mediation for confidentiality? The sophistication and diversity of technology does more than affect the geography of conflict resolution. Factors such as the nature of asynchronous and synchronous communication, the creation of a digital record, the reduction in non-verbal communication, minimisation of travel and face-toface meetings all have an impact on dispute resolution dynamics. In addition new issues of identity, authenticity, confidentiality, security, accessibility and suitability arise. 9.45 Online mediation offers a new kind of accessibility in relation to geography, resources and literacy. In terms of geography, online mediation can provide virtual meeting spaces for computer and mobile users and can connect people regardless of their physical locations. For example parties in Alice Springs are able to access a mediator of choice in Sydney, Johannesburg or Hong Kong. In terms of resource accessibility, online mediation dispenses with travel and accommodation costs associated with face-to-face mediation. For consumers it may provide a cost-effective and practical way to handle low-value disputes arising from online purchases of goods (for example through eBay) where travel costs could exceed the value of the goods. Accessibility also refers to computer literacy and access to ODR technology. An important aspect of the online mediator’s role is to help parties adjust to the online medium and instruct them in how to engage with the technology most effectively. This may, for example, involve monitoring the computer literacy of parties and intervening to maintain a technological balance between them, so that the less literate party is not unduly disadvantaged. 9.46 ODR platforms can be either asynchronous (such as email) or synchronous (such as instant messaging). Much online mediation uses the asynchronous technology of email, which boasts two primary advantages. First, time zones and scheduling problems do not impact on asynchronous dispute resolution processes and participants can

send messages at their convenience. Second, the time delay between party communications associated with asynchronicity can act as a communication filter and, from a mediator’s perspective, allow more time to formulate reframes, questions and other interventions. 9.47 In the online world power imbalance can arise through differences in parties’ digital literacy, articulacy, negotiation skills and resources, or it can be reflected in the histories of personal violence between parties. ODR’s suitability in these types of circumstances will depend on the nature of the power imbalance. By way of example, computer illiteracy on the part of one party may be power-neutral in a face-to-face context but create enormous disparity in an online forum. Conversely, where psychological or physical violence has been an issue between parties, use of technology can remove them from the physicality and geography of conflict and may contribute to reductions in emotional tension, fear and feelings of intimidation. In a [page 285] consumer context ODR may be empowering for consumers purchasing goods online from distant vendors. Power imbalances can also be an issue where parties do not have compatible technological standards in terms of hardware, software, memory capacity and bandwidth. For example when one party can observe the other’s body language clearly but the other presents as a small fuzzy image, then the information flow clearly benefits the user with access to more sophisticated technology. 9.48 The internet changes the nature of communication in mediation and offers new opportunities for effective communication not present in face-to-face situations. Face-to-face mediation affords parties opportunities to observe each other and glean information from nonverbal messages such as body language and voice intonation. It offers opportunities for instant verbal and non-verbal feedback and clarification. At the same time, face-toface encounters may also exacerbate social barriers and power disparities. They tend to favour physically attractive, articulate, well-educated people or members of

dominant ethnic, racial or gender groups. Conversely, online text-based communications may favour those who prefer to reflect on their responses before communicating them and who may be less likely to engage in face-to-face group meetings than they would in online discussions. Personality types who avoid conflict at all costs, and who may be nervous or reserved, can feel empowered, lose their inhibitions and become more assertive in online mediation. Some people will feel more secure and confident expressing themselves on certain topics through texting and symbols such as emoticons (to express feelings) rather than faceto-face communication: see Larson (2006). Thus email and other text-based communications have the ability to encourage trust, develop rapport and achieve high levels of intensity and intimacy. Online mediation (especially the asynchronous kind such as email) may also be a good fit for disputants with a history of negative interactions and unequal power and status as it accommodates physical separation and gives people time to consider responses before replying. In addition it frees disputants from hostile body language, high emotions and interruptions, thus facilitating problemsolving. Online negotiators who take the time to form a relationship via computer-mediated communication have been found to use cooperative styles more often than those who participate in negotiations for a short time only: see Tan, Kennedy and Bretherton (2005). 9.49 Online mediation can utilise fourth party communication techniques such as ‘pre-framing’ and ‘concurrent caucusing’ to manage conflict: see Raines (2005). Rather than reframe immediately after a statement has been made by one party to another, pre-framing in email-based mediation provides opportunities for messages to be directed through technology to a mediator before being transmitted to the other party. This process feature enables mediators to coach parties with respect to the further framing of their communications and prevent destructive statements from reaching the other side. Concurrent caucusing refers to the online technique of [page 286]

conducting separate sessions with more than one party at the same time and without interrupting the joint session. Thus separate sessions can occur as continuous contextual interventions throughout the entire process, without interrupting its flow. Finally one of the most important facets of the fourth party is the screen. It can add authority, quality and trust to the online mediation experience. Products that use the screen well add value to the expertise of mediators, enhance convenience, build trust and raise expectations of the process. 9.50 Text-based dispute resolution processes create documents and written records that can be stored and accessed later. Effectively this means that: emails remain in the inbox of email software unless moved or deleted; most instant messaging programs give the option of saving records of conversations for later use; and e-rooms make it possible for participants to exchange virtual copies of documents regardless of their location. These features can be beneficial in allowing parties to recall previous proposals and to structure and link discussions. They are also sources of learning material for students of mediation studying the dynamics and evolution of the mediation process. However, a major drawback here is the possible psychological and behavioural impact on parties of knowing that everything said in text will be recorded, which may inhibit them from negotiating freely. Another risk relates to security, which is considered next. 9.51 If unauthorised outsiders intrude into the security system of an ODR platform, participants are at risk of records being disclosed to an infinite number of internet users. Hackers may extract sensitive information and provide or sell it to the other party, or other interested stakeholders. However, security risks also exist in the physical world where most documentation relating to a mediation would be kept in eform by mediators, lawyers or parties themselves. Paper documentation is easily scanned before posting on the internet. Thus privacy and security issues are relevant to both offline and online

processes, although they manifest themselves differently and require different responses from service-providers. 9.52 A related issue is that of authenticity. How can the participants’ identities be validated? How can you be sure who is clicking on the mouse at the other end? Perhaps another person is ‘ghost writing’ for the distant party? Even if passwords are used to log into a secure ODR website, there is no guarantee that the party with whom you negotiate online is the person you think he or she is. A nosey hacker or cyber sticky-beak could even be playing the role of one party without their, or the other’s, knowledge. ‘Registered’ electronic signatures, security certificates and tokens, and developments in electronic finger-printing could relieve some anxiety on this point. Video-conferencing also appears more secure in this respect since participants can see each other in real-time, although it may not be apparent who else is in the room. [page 287]

Case illustration: Online mediation and authenticity The Online Ombuds Office is one of a number of organisations providing online dispute resolution services. The service published a full transcript of a dispute which was successfully mediated online; it reveals some of the opportunities and challenges of this kind of service, which have been canvassed in this chapter. Ironically the dispute was over a copyright issue arising out of the use of the internet. The dispute resolution service was contacted by an internet enthusiast who had begun summarising local news and events and publishing the summaries on a website. He had been contacted by the local newspaper which claimed that he was in violation of their copyright and that they would institute court proceedings if he did not stop immediately. He discontinued his project and sought assistance from the dispute resolution service.

Over the next month a series of communications took place by way of email, fax and phone. These were all directed through the dispute resolution service and there was no further direct contact between the disputing parties. (It was effectively a form of shuttle mediation.) As with many mediations, much of the time was spent getting the ‘other party’ to the table (keyboard?) and once this had been achieved the mediation progressed quickly. An interesting escalation in the conflict occurred when the internet service provider (ISP), which was coincidentally used by both the newspaper and the individual, sent a document entitled Ten Big Myths About Copyright Explained to the individual. He thought it was instigated by the newspaper as a warning that what he was doing was wrong. It is not the first time that a party in conflict has interpreted an event in the way most detrimental to the other side. In reality the document was merely a reminder from the ISP to all its clients about the rules of copyright, which had also been sent to the newspaper. Clarification of this misunderstanding was an important factor in the ultimate resolution of the dispute.

Deciding whether or not to ‘go online’ 9.53 The decision on whether or not online mediation is suitable for particular disputes will need to be considered on a case-by-case basis. The following factors may be relevant to the choice of whether to ‘go online’ or not. Accessibility: Are parties able to access and participate online and what challenges may be involved in arranging a face-to-face meeting? Affordability: How cost and time efficient is online mediation for parties? Literacy: What levels of computer literacy do parties have and what are their comfort levels with online forums? Trust in technology: To what extent do parties feel confident with using the technology? In this context, themes of fair procedure,

privacy, security and authenticity may arise. [page 288] Record: To what extent is a written, audio, digital or visual record of what occurs in the online mediation process desirable? Cultural fluency: Have the parties considered the cultural fluency of the selected ODR platform and its scope for flexibility? For example some platforms take parties through a strictly facilitative process with no scope for process deviation. Competence: What sort of expertise and competencies do parties seek in their conflict resolution practitioner? Is such a person available locally, and if not might he or she be available online or electronically? Would an automated process carry the necessary competencies required to support conflict resolution? The required competence of online mediators extends to technological fluency and the ability to help parties get the most out of the online medium. Technical support: Is skilled, effective and efficient technical support available, and if so, is it available 24/7? Timing and timetabling: What timing is suitable for the parties? In so far as there are scheduling issues, asynchronous online mediation processes may be suitable, provided ground rules regarding frequency of contact are set. Repeat players: For repeat players, does online mediation offer a streamlined process that stores previously entered data relevant to the current dispute and that allows quick and easy initiation of online mediation at any time? Relationship: How do the relationship dynamics between the parties influence the choice of process and ‘venue’? For example where there is a history of intimidation, violence, high interruption or hostility in faceto-face engagements, asynchronous online processes may be helpful. Power: Can the online element act as an equaliser in cases of unequal power or status? Alternatively, is it more likely to exacerbate power differences?

Future developments 9.54 Despite the increasing sophistication of technology, ODR usage occurs mainly at a low technology level. Many mediators seem satisfied to integrate email into their face-to-face practice, particularly in the gaps between meetings, although the extent to which they are harnessing the communication possibilities of the ‘fourth party’, such as pre-framing, is unclear. At the same time dedicated ODR platforms are increasingly being offered in Australia as the previous examples demonstrate. 9.55 The future of online mediation will depend largely on market acceptance of the use of technology in mediation generally and of specific ODR platforms. While there is still some scepticism about the ability of technology to facilitate solutions, build relationships and maintain trust in the process, an increasing number of mediation practitioners and [page 289] users appear open to the idea of using technology to help them resolve disputes. In a survey of service-providers and users, more than 70 per cent of respondents indicated a willingness to consider ODR for online and offline disputes: see Tyler, Bretherton and Bastian (2003). Consistent with these findings, another Australian study of family mediation practitioners showed widespread interest in an online mediation model described as ‘an integrated online platform including voice, internet relay chat, videoconferencing in an interactive virtual mediation room supported by a range of resources’. Here the ODR platform went a long way towards replicating a physical mediation setting, a factor which appealed to the surveyed mediators: see Wilson-Evered, Casey and Aldridge (2010). The research also highlighted the importance of the following factors to ODR uptake: trust in the technology; user-friendliness of the technology (here the screen plays a

significant role); trust in the organisation offering the ODR service; and innovation in web use. These studies reveal a significant interest in a relatively underdeveloped sector and bode well for the future of ODR as an additional service offered by traditional mediation providers to enhance user accessibility. 9.56 Here are three technologies to watch out for in dispute resolution. Avatars are said to create the real-life intensity of emotional and social connections and have already been introduced to some dispute resolution contexts: see . Research relating to people’s heart rates, brain activity and emotional involvement when controlling avatars have led to suggestions that the real people behind avatars are actually intensely engaged in the social interaction of their avatars: see Reeves and Read (2010). Then there is a technology that can read emotions from the way people talk. Imagine an e-mediator who can reframe your feelings and overall mood based on your speech patterns as you speak into an ODR program. Finally Hattotuwa (2008) asks dispute resolution practitioners to consider the following scenario. What if your user identity was remotely and securely managed and you could log into, and try, different ODR products with a single username/ password, allowing each system to access your case details as you see fit and seeing which one gives the best solution? No data/user lock in, no giving out personal information to dozens of sites each with varying privacy regulations and security architectures. Simple, effective, neat.

This is open source technology and it has the ability to function as a user-based screening to assist parties to determine the suitability of a variety of ODR platforms to handle their disputes. The future is here and it is knocking on the mediation door. [page 290]

Blended Processes — Multiple Roles for Mediators 9.57 In describing the mediation process and its variations, the NMAS Practice Standards refer to ‘blended processes’, also known as ‘advisory mediation’, ‘evaluative mediation’ or ‘conciliation’, in which mediators offer parties expert information or advice: s 2(7). Blended processes are recognised by the Standards, provided the following three conditions are met: 1. the participants request that such advice be provided; 2. the advice is provided in a way that enhances the principle of selfdetermination; and 3. a mediator who provides expert advice has the appropriate expertise: see Approval Standards at s 5(4) discussed in 12.412.13. The requirement for informed consent from all parties before a blended process can be commenced is a strong theme in the Practice Standards. For example lawyer-mediators must inform parties at the start of mediation that they are unable to provide advice except within a blended process and then only with their clear consent: s 3(4)(g). Further it would seem to be best practice that parties’ consent for a blended process be obtained in the Agreement to Mediate: s 10(4). 9.58 Blended processes vary in many respects, including in their level of formality. In less formal processes a mediator might assume an advisory role in the late stages of a mediation. Others are more structured and formally designate more than one role for the mediator. To illustrate the latter kind of arrangement reference is made to one of the statutory schemes in which mediators are formally required to perform more than one role. 9.59 Under the statutory workers’ compensation scheme in Victoria, conciliation is mandatory for those appealing decisions made by an employer and insurer arising from a work-related injury claim. Conciliation services are provided by the Accident Compensation Conciliation Service, an independent statutory authority within the

Victorian scheme. Conciliators conduct multi-party conferences lasting about 1-2 hours, involving workers and their advisers, employers and sometimes their consultants, and insurers. Conciliators have multiple roles to bring closure to disputes and prevent escalation into the courts, including powers to: Explore and critically analyse insurer decisions on the basis of provided documentation against established principles of sound and proper decision-making. Facilitate or mediate disputes through discussion of the issues in order to reach agreement. [page 291] Make formal recommendations that, in the statutory context, protect those accepting such recommendations from admissions of liability. Suspend or adjourn matters, and request further information to be provided. Formally request information to be supplied, and if it is not supplied prevent it from being used in subsequent legal proceedings. Refer medical questions in dispute to a medical panel for a binding decision. Conclude conciliation by a decision that agreement is not achievable, and then decide whether or not the employer-insurer has an arguable case for the denial of liability. If there is an arguable case, decide whether the claimant has taken all reasonable steps to settle the dispute, and, if not, prevent the party from proceeding to court until such steps are undertaken. If there is not an arguable case, issue a direction that weekly payments be made or continue to be made for up to 36 weeks, or that medical and like services up to $2000 be paid, without a party so directed being held liable for the claim. 9.60 This shows the broad range of functions which can be vested in a single conciliator. While the emphasis is on mediated decisionmaking, the conciliator can move beyond this function and can provide

recommendations and even make binding determinations. Susan Cibau (2009: 34) comments: Conciliators … have the objectives of the law and the system to consider, and the responsibility to consider the repercussions of unresolved conflict. Conciliators have multiple roles, possess distinctive content knowledge and are able to move from facilitation to a decision-making role.

In practice, about 66 per cent of cases are settled either by mutual agreement or agreement with a recommendation. Directions are issued in only 1 per cent of cases: Cibau (2009: 33). 9.61 Bryson (1999 and 2001) points to some potential risks where multiple roles are allocated to a single individual. One is that conciliators could approach their tasks and discretions very differently from one another. Another is that conciliators might rely more on diagnostic and interpretive activities than on problem-solving and facilitative ones, leaving the impression that they are following a predetermined script. Thus the method by which conciliators manage their multiple roles is an important factor in their operation. As their role becomes more ‘interventionist’, questions are raised as to what are the acceptable limits of their use of pressure and power. The actual exercise of the most extreme power of direction is rare, but the existence of this reserve power could subtly overshadow the management of a conciliation conference and the perceptions of parties. This creates a need for conciliators to indicate to [page 292] parties up-front what roles they have, and to signal clearly any changes in role during the course of conciliation. Such an approach is consistent with the spirit and provisions of the NMAS Practice Standards referred to previously and is illustrated below.

Changing dispute resolver hats: the importance of signalling

9.62 Bryson (1999) explains the guidelines which conciliators follow to manage their changing functions: The importance of the opening conciliator statement The opening statement, complementing any written or visual material sent to parties prior to a conference, should clearly explain the different roles of conciliators and indicate a willingness to clarify roles during the process. Signalling transitions during process During a conciliation meeting points of transition between roles should be clearly signalled, for example, ‘My sense of the meeting so far is that we are not likely to reach agreement through discussion. As foreshadowed in my opening introduction, I now wish to move to a recommendation role …’ Transition when exercising a formal recommendation role If agreement cannot be reached through consensus, a conciliator signals the change of role to recommendation and gives conditions of acceptance or refusal of any recommendation proposed. A justification for the recommendation is provided. For example, if the dispute is over a fundamental threshold issue of acceptance or rejection of a statutory entitlement, the recommendation is usually for the payment of compensation without admission of liability. If the issues in dispute do not concern a breach of entitlement, then it could take the form of a compromise on a practical or commercial basis. Transition when exercising a decision-making role If agreement cannot be reached through consensus, and perhaps after attempts to get agreement by recommendation, a conciliator signals his or her intention to move towards deciding whether the dispute cannot be taken any further through conciliation. If the conciliator decides there is an arguable case concerning the liability of an employer or insurer to make payments (‘genuine dispute’), and decides that the claimant has taken all reasonable steps to settle the dispute, the conciliator can close the conciliation process. Comments are invited from all parties and discussed prior to a decision being made. Transition when exercising a direction role If a conciliator decides there may be no arguable case (‘no genuine dispute’) he or she signals the wish to move into the role of issuing a direction. A more formal procedure ensues. A summary of the arguments in relation to the no genuine dispute issue is given from both sides. The meaning and consequences of a direction are explained carefully and questions are invited. Comments are invited from parties on whether the

[page 293] conciliator should or should not direct, with the option of a temporary adjournment at this stage. The use of private meetings is cautioned against at this point because discussion between a party and a conciliator may alter the final decision to direct without opportunity for the other party to challenge. A conciliator’s decision may be conveyed to the parties at the conciliation meeting together with reasons, or may be sent in written

form.

Collaborative law 9.63 Collaborative law, also referred to as collaborative practice (CP), is a process whereby lawyers and their clients agree in writing to reach a settlement without court involvement. While CP is not mediation, it draws on many of the same principles as mediation and clients sometimes confuse the two processes. In CP experts such as accountants, coaches, counsellors and child specialists may be enlisted as part of the dispute resolution ‘team’. If a resolution cannot be achieved through collaborative endeavours, the clients instruct other lawyers to proceed to court. The following extract from Boulle (2011: 173-7) explains how CP works. In collaborative practice parties and their advisers sign a Participation Agreement which regulates the operation of the system and the functions of all signatories; they are required to act in good faith and to avoid conduct antithetical to the process, such as threatening litigation, taking advantage of the other side’s tactical mistakes or engaging in negotiation gamesmanship. A key aspect of CP is the limited professional retainer agreement which precludes lawyers from acting for their clients in litigation proceedings subsequent to settlement failure. This framework limits the system’s potential to serve as a ‘fishing expedition’, and restricts attempts to circumnavigate the confidentiality principle in subsequent litigation and other forms of process abuse which have been apparent in some mediations. Lawyers, moreover, are contractually obligated to negotiate in good faith, to make information available and to operate in a respectful problem-solving way. There is also scope for inter-disciplinary involvement by other professionals such as psychologists, accountants and social workers. In these respects CP is an element in larger changes in law and legal structures which promote values such as humanism, feelings and relationships. In the practical operation of CP between four and seven meetings are typically held among parties and their advisers, with structured reviews taking place between sessions. The meetings are [generally] unmediated but are bound by strict protocols, as indicated above. They are conducted at all times with parties and advisers present in face-toface sessions, providing what is often referred to as six potential lines of direct communication. Whereas in many forms of mediation lawyers can dominate the communication process this is not countenanced in collaborative law and practice.

On CP see also Wolski (2009: 654-64). [page 294]

Other Variations in the Mediation Process 9.64 There are many additional ways to vary the mediation process. Some of these include: selecting different venues for different mediation sessions (see 4.41); variations in separate meetings (see 5.64); involvement of support persons (see 4.19); and consultation with outside parties before ratifying agreements: see 5.68.

Alternating venues 9.65 Occasionally mediators, in consultation with parties, might select different venues for mediation meetings. There are three reasons for doing this. The first is to demonstrate fairness and even-handedness to both parties, for example by using the premises of each party, or their lawyers, in turn. The second is because a particular need can be served by changing the venue; for example in an industrial dispute it might assist all concerned to have part of a mediation on the factory floor where the safety-related disputes actually arise, or in a retail shop leases dispute it might clarify matters if options are considered at the shopping centre where the retailer is a tenant. The third is because it is just more convenient for all concerned to change the venue, for example in a major land use mediation which takes place over a long time period and involves multiple parties and advisers.

Variations in separate meetings 9.66 Normally legal advisers will be present at separate meetings held with their clients, but on occasions mediators may meet separately with each party alone without their adviser (side meetings), or with all parties together without their lawyers (party meetings) or with all lawyers without parties (adviser meetings). In addition mediators could meet separately with experts from both sides. In each case mediators

make a discretionary judgment with some degree of consultation with the parties. Sometimes it is necessary to meet with advisers to educate them about their appropriate roles in mediation or to challenge their obstruction of a mediator. In all cases mediators’ judgments should be explained and parties reassured. Thus mediators should be sensitive about meetings between professionals alone being regarded with suspicion by parties. Where mediators meet with parties alone, the latter should be reassured that they will be able to consult their advisers before agreeing to any settlement.

Involving support persons 9.67 The flexibility of the process allows the involvement and participation of a wide range of ‘support persons’ in mediation. The disputing parties can [page 295] bring friends, family members, work colleagues and other relevant individuals to assist them in the process by providing advice, reassurance or merely making up the numbers. In some cases it may be necessary for supporters to remain outside the mediation room, because there is insufficient space or because not all parties agree to their presence. In these situations there might have to be agreed protocols for keeping support persons informed of developments. In other cases they may be in the meeting room for all or part of a mediation. Here they might be allowed to participate in all stages of the mediation, have a limited involvement or be silent observers. Mediators are required to exercise some discretionary judgments in relation to these options and to consult with parties as appropriate. They will want both to allow for constructive contributions from ‘outsiders’ and to avoid the ‘cheer squad’ syndrome. All support persons should be required to sign a confidentiality undertaking before being admitted to the mediation room.

Consultation with outside parties before ratifying agreements 9.68 Here the mediation process is adapted to allow clients to confer with outside managers, boards or committees whose formal approval is required to make provisional agreements final. As this approval is an issue for both parties it can be discussed openly with them in the mediation meeting. With the approval of parties, mediators may offer their services to contact the ratifying body and convey to them the dynamics of the mediation not apparent from the drafted agreement. A case illustration of this variation is provided in 5.82.

‘Tag’ mediations 9.69 Mediations do not always have the neat boundaries and identifiable participants as suggested in this book. For example mediations involving traditional societies might have an ‘open door’ policy with different parties participating at different times. This serves the needs of consultative decision-making in which involvement and participation for all interested parties is allowed and encouraged. As acknowledged by the NMAS Practice Standards s 3(3)(a), mediators might have to adapt the process to these realities even when the involvement sought is unconventional, as shown here. Case illustration: The sewerage fight mediation A local authority had to decide whether to introduce water-borne sewerage and replace septic tanks in their area and arranged for a mediation involving a carefully considered set of participants: three state

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government departments, the local government, the progress association, and representatives from the communities likely to be most affected, together with two co-mediators. The mediation was held in the community hall. After an hour of mediation a group of residents burst through the doors and announced that they wished to be involved in the mediation as their interests were not sufficiently represented. The mediating group deliberated hastily and decided to allow them to observe the proceedings and to participate through one nominated spokesperson. This protocol was followed for about an hour, with minimal participation from the spokesperson, until the group departed the hall as suddenly as they had entered it. The mediation then proceeded without them. At the end of the mediation the original participants drafted a joint statement for release to the broader community.

Mediator Learnings 9.70 This chapter offers mediators the following learning points: 1. While there are some core procedures which should apply to all mediations, there are also many variations in the standard process which can be used to respond to peculiar circumstances and conditions. 2. New forms of technology provide innovative opportunities for the development and use of mediation, particularly where parties are separated by space or time zones and different participants, such as advisers and experts, are in different localities. 3. All variations in the standard mediation process introduce some benefits and advantages, but they also involve some potential drawbacks and risks which mediators need to consider before modifying the standard process. 4. Blended systems combine mediation with other dispute resolution processes and potentially offer clients greater choice to suit their needs. NMAS accredited mediators must be mindful to comply with the additional requirements for mediators who wish to offer a blended process.

Tasks for New Mediators 9.71 You are about to represent a client in a mediation to be conducted on a shuttle basis. Write up a list of precautions which you feel should be taken to ensure: that parties do not lose trust in the mediation process when mediators are absent from them; that mediators are accurate in conveying messages back and forth; and [page 297] that mediators do not abuse the vast power they will derive from being the sole source of communication between the parties. 9.72 In a co-mediation it is useful if the co-mediators can avoid any personality conflicts between themselves. Write out some of your personality traits. Then form a pair with another person who has done the same. Compare your lists and discuss the factors you think would tend to make the two of you compatible as mediators, and which would make you incompatible. 9.73 You wish to develop a business that conducts online mediation. Investigate and describe ways in which information and communication technology could be used to maximise the advantages of this kind of mediation and to minimise any drawbacks.

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CHAPTER 10

Special Issues in Mediation Introduction Dealing With the Power Issue Dealing With Violence Using Interpreters in Mediation Dealing With Proposed Settlements ‘Outside the Range’ Dealing With Absent Parties Involving Children in Mediation Dealing With Experts in Mediation Dealing With Professional Advisers Dealing With Complex Multi-party Disputes Terminating Mediation Without Agreement Mediator Learnings Tasks for New Mediators

Introduction 10.1 This chapter deals with some of the special issues that can arise in mediation. Here the term ‘special’ denotes something out of the ordinary encountered in exceptional circumstances in mediation and not in everyday routine. The term does not imply that these issues are more important than others already dealt with in this book. Each issue considered can have important implications not only for the success of individual mediations and the reputation of individual mediators but also for mediation and mediators in general, as well as for broader

[page 299] societal interests. While there are no unifying themes among the array of identified issues, a number of them touch on the question of power in mediation. 10.2 There are many special issues that can arise and those dealt with here are based on relevant literature, stories and cases about actual mediations, and the authors’ experiences and reflections. Consistent with the approach taken throughout this book, these issues are raised with a view to considering the skills and techniques that mediators could use in dealing with them and not with the purpose of providing specific solutions.

Dealing With the Power Issue 10.3 There is much debate over the appropriate role and responsibilities of mediators where one party is ‘more powerful’ than another in mediation: see Boulle (2011: 196-205). Reference has been made to the concept and nature of power in Chapter 8, with particular reference to how mediators can use their power. Here the focus is on power relations between mediating parties. 10.4 There are two principal sources of concern in respect of power relations between mediating parties. The first is whether mediation is appropriate where there is an ‘imbalance of power’ between them. This has been referred to earlier in the book: see 2.13. The second relates to the proper role of mediators where mediation takes place in circumstances of a ‘power imbalance’ and is dealt with in this chapter.

Some assumptions about power 10.5 As it is not possible in this book to enter theoretical debates on this topic, it is appropriate to state some basic assumptions upon which this section is based: There are almost always power disparities in the resolution of disputes: they were not invented to bedevil mediation alone and

mediators should not assume too much responsibility in relation to power inequalities in society or between parties outside the mediation room. There are many different contexts in which there might be disparities of power between parties. Some of these are selfevident: the large employer and the individual worker; the large trade union and the small employer; the professionally advised insurer and the self-represented claimant; the personally articulate party and the poorly educated party. Other power disparities may not be self-evident, especially to outsiders such as mediators who might never understand the real power dynamics at play between parties. Power is a complex phenomenon and all negotiating parties have some sources of power, though they may sometimes be slight. Power can derive from many sources, besides the obvious source of money: it could come from knowledge and understanding (legal, financial, [page 300] emotional); from ability to damage or reward; from access to authority and the media; from rules, standards and principles and their precedent power; from the simple morality of the situation; from reputational needs; and from attractive alternatives to negotiating a settlement for one or other party (their BATNA, RATNA and PATNA: see 4.25). Table 10.1 identifies different categories of power that mediating parties are known to source. Sometimes in dispute resolution the perception of power is more important than the objective conditions of power. Thus a party will, within limits, be at an advantage when they perceive themselves to be powerful, and will be at a disadvantage when they perceive the other party to be more powerful than them. In some situations both parties will have the same perception, namely that they are powerless or considerably less powerful than the other party. Experienced mediators know that power is a relative, constantly

shifting concept that cannot be taken at face value. There is also significant power in mediators themselves (see 8.4) which they can use (and abuse) in different ways and for different purposes.

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The extent of mediators’ responsibilities 10.6 The extent of a mediator’s responsibilities in relation to the power question is a major policy issue. It is referred to briefly here with reference to the NMAS Practice Standards. On one hand, it is contended that a mediator’s sole responsibility is to conduct the mediation process in a fair and impartial manner and not to assume responsibility for redressing power imbalances which derive from circumstances external to the mediation. Such power problems are better resolved through the use of professional advisers and support persons, through resorting to litigation and government agencies, through delay and counselling, and through other initiatives outside the mediation meeting — strikes, sabotage, sanctions and other non-mediatory actions. On the other hand, it is said that mediators do have some responsibilities in relation to certain power imbalances and that if they do nothing about them one party may be severely disadvantaged, the agreement

[page 302] may not last, the mediator may be sued and the reputation of mediation may be adversely affected. For some writers an important function of the mediation process is the ‘empowerment’ of weaker parties so that stronger parties do not prevail through might alone: see Tillett and French (2010: 149). However, the extent of this empowerment function is not always clear. 10.7 The approach taken here is a middle of the road one. This is that mediators do have some responsibilities over the power issue but that these should revolve mainly around their control over the mediation process. Mediators are not the advocates of the less powerful party, nor the champions of the poor and oppressed. This is consistent with the focus of the NMAS on procedure, the introduction to s 4 of the Practice Standards stating: Mediators shall have completed training that assists them to recognise power imbalance and issues relating to control and intimidation and take appropriate steps to manage the mediation process accordingly.

Here the focus is on practical ways in which mediators can deal with power issues through their control of procedure.

Ways in which mediators can work with power 10.8 Many aspects of the mediation process, referred to in detail in other sections of the book, have as one of their objectives the adjustment or moderation of power relations between parties. These include: Intake and screening procedures. Preliminary conferences. The neutrality and impartiality of mediators. Appropriate enforcement of the mediation guidelines. Control over the lines of communication. Appropriate physical, environmental and timing arrangements.

Supervision of the exchange of and access to information. Appropriate involvement of representatives, advocates and advisers. Separate meetings with each party. Adjournments and cooling-off periods for agreements reached at the mediation meeting. 10.9 Thus the mediation process itself can indirectly moderate some power differences between the parties. Beyond this, there can also be direct interventions on power issues, aimed at either the stronger party or the weaker party. Some possible approaches are summarised in Table 10.2. Additional specific examples of dealing with the power issue are provided in the following sections. [page 303]

Risks in dealing with the power balance 10.10 There are potential risks for mediators if they become too involved in increasing the power of the weaker party and decreasing that of the stronger: Mediators might become advocates for and protectors of weaker parties rather than helping them obtain support from advisers, support groups, government agencies and other outside bodies. Mediators might lose their impartiality because they are perceived as taking sides with the weaker party and against the more powerful party.

[page 304] Mediators might be inclined to impose their own standards and values in substitution for those of the parties. Mediators may be in breach of the Agreement to Mediate or applicable mediation guidelines and this might bring adverse consequences.

Dealing With Violence 10.11 A special form of the power problem arises where there has been a history of personal violence between the parties or there is ongoing violence between them. This is pertinent in relation to domestic violence between spouses or partners, but is also relevant in other situations, for example personal violence in the workplace or within schools. The same skills and techniques relating to power imbalances have applicability here, and there are additional policy and practical considerations.

The policy issues 10.12 The literature and policy guidelines deal extensively with the issue of when mediation should be regarded as inappropriate because of the violence factor: see also 2.12. It is argued that the fear, apprehension and intimidation experienced by the abused party render them incapable of negotiating and making decisions in mediation and their problems should be dealt with in another forum. Whatever precautions are taken in mediation, the argument goes, it will still be a fundamentally unfair process for a victim, and possibly even a dangerous one. 10.13 Despite these policy arguments, practising mediators are involved in many cases in which there has, in the past, been some domestic violence, ranging from serious to moderate, and in which protection orders are in place at the time of mediation. These mediations tend to occur in the context of scarce resources, limited

dispute resolution options, and some measure of pressure to participate in mediation. In these settings, mediators seldom get to understand the true realities of the violence, nor do they obtain followup in regard to mediated agreements. Here mediation is hardly an ideal option, but it might be the only one. 10.14 The approach taken in this book is that while it is never ideal to mediate where there is a history of violence, it may be the only realistic option for parties with scarce resources who need to make practical arrangements over children and property. The focus is therefore on ways in which this reality can be best dealt with by adapting the mediation process. Fortunately mediation agencies have policies and codes which guide mediators in approaching this difficult task. The Family Law Regulations also provide guidance on this matter, as discussed below.

Screening for violence 10.15 Pre-mediation screening for evidence of violence is an important precaution in this context and has been referred to previously: see 2.11 [page 305] and 2.13. Screening is designed to provide hard information on matters of violence and to create opportunities for clients to disclose their feelings and concerns about the issue. It allows a person conducting the screening to assess a victim’s capacity to participate effectively in mediation and to assess a perpetrator’s capacity to function appropriately. 10.16 Pre-mediation screening can have two significant outcomes. First it allows for the identification of situations unsuitable for mediation, which can then be referred to another form of skilled help. This can be governed by codes of conduct or applicable legislation as illustrated here. Regulation 25 of the Family Law (Family Dispute Resolution

Practitioners) Regulations 2008 provides: Before providing mediation under the Act, the community mediator or private mediator to whom a dispute is referred must conduct an assessment of the parties to the dispute to determine whether mediation is appropriate. In determining whether mediation is appropriate, the mediator must consider whether the ability of any party to negotiate freely in the dispute is affected by any of the following matters: a history of family violence (if any) within the meaning of s 4 of the Act, among the parties; the likely safety of the parties; the equality of bargaining power among the parties (for example, whether a party is economically or linguistically disadvantaged in comparison with another party); the risk that a child may suffer abuse; the emotional, psychological and physical health of the parties; any other matter the mediator considers relevant to the proposed mediation. If, after considering the matters set out [above], the mediator decides that mediation is appropriate then, subject to regulations 28 and 30, the mediator may provide mediation. If, after considering the matters set out [above], the mediator decides that mediation is inappropriate, the mediator must not provide mediation. The Family Law Act 1975 (Cth) defines family violence as: … conduct, whether actual or threatened, by a person towards, or towards the property of, a member of the person’s family that causes that or any other member of the person’s family to fear for, or to be apprehensive about, his or her personal well-being or safety.

The NMAS Practice Standards are more general in their treatment of this issue, s 3(3)(a) providing that the objectives of an intake process may include: Determining whether mediation is appropriate and whether variations are required (for example using an interpreter or a co-mediation model in culturally and linguistically diverse communities or varying arrangements where violence is an issue).

[page 306] In addition s 4(1) of the Standards provides: Some disputes may not be appropriate for mediation processes because of power imbalance, safety, control and/or intimidation issues.

10.17 The second outcome of pre-mediation screening is that it allows for adequate preparation by mediators where mediation is to go ahead despite a history of violence. In some settings mediators are directly involved in the screening function and in others it is performed by designated staff with specialised training in the area. In both contexts mediators can plan strategies and interventions for dealing with the violence factor. However, as screening is not infallible and might only be available in a rudimentary form, mediators need to be generally prepared in all cases where there might have been a history of personal violence.

Mediator interventions in relation to violence issues 10.18 Before planning their interventions, mediators need to be able to understand and read the indicators of violence. To this end mediators involved in family mediations would benefit from education and training on the nature of domestic violence and its consequences for both victim and perpetrator. This is an accreditation requirement for family dispute resolution practitioners under the Family Law (Family Dispute Resolution Practitioners) Regulations. One of the advantages of training is that it can assist mediators recognise indicators that one of the parties has been abused. On the part of the victim this might include continually waiting for the other to speak, glancing timidly at the perpetrator, or always trying to smooth over points of conflict; on the part of the perpetrator, it might include dominating the airways, aggressive body language, impatience or threatening tone of voice. Of course these are only indicators and mediators would need more information in order to understand situations fully. 10.19 In the light of their acquired understanding about the power dynamics between parties, mediators are able to adapt and modify the process to suit the circumstances. Practical things mediators might do in situations involving a history of violence include: Investigating the possibility of the victim taking out a protection

order before mediation. Organising separate arrival times and supervised waiting rooms for the parties. Having relatively short sessions, and more than one session, so the victim party can have time out and seek counsel and support. Always, as a matter of inflexible policy, conducting separate sessions and holding these more than once where circumstances require it. Making strict arrangements for the victim party’s safety during mediation meetings. [page 307] Making use of written details of tasks parties are required to perform between various mediation sessions. Considering safety aspects of contact visits and other postmediation meetings between the parties (with reference to neutral public venues, supervision and so on). Assessing the victim party’s comfort levels throughout the process. Undertaking any termination of mediation in a way that it does not antagonise the offender towards the victim. Ensuring the victim party is able to leave the mediation precinct first and has sufficient time to get away before the perpetrator departs. Discussing with the victim party beforehand ways of dealing with problems in the mediation meeting: see case illustration below.

Case illustration: Dealing with violence symptoms in mediation In the preparatory stages of a voluntary mediation the mediator, aware of a history of personal violence between the parties, conducted personal interviews with each. The victim, who was legally represented, was willing to take part in the mediation process jointly with the perpetrator provided her lawyer was present. However, she was concerned that she would become

intimidated and quiet if the perpetrator raised his voice and became threatening. She indicated that she would also feel nervous about asking for a separate meeting with the mediator or an adjournment to speak with her lawyer. The mediator discussed with her options for dealing with this predicament. They agreed that as soon as she felt intimidated she would give the mediator a secret hand signal, and this would cause him to suggest an adjournment a few minutes later. This occurred twice in the mediation, after which the victim had developed enough confidence in the process, and in her abilities, to be able to continue through to agreement, despite continuing threats from the perpetrator. 10.20 Mediators have some important responsibilities on the violence issue but they alone cannot guarantee the safety of victims. In relation to the responsibilities they do have, there is comprehensive advice available from many mediation service-providers and agencies operating in this area.

Using Interpreters in Mediation 10.21 The need for and use of interpreters in mediation is another aspect of the power dynamic, this time created by linguistic disadvantage. Normally it is clear as to whether an interpreter should be used in mediation, namely if one or more participants are unable to understand the language in which [page 308] it is conducted. However, mediators should not be too gullible on the issue. It is not unknown for parties to ask for interpreters despite being conversant with the language of the mediation. The use of an interpreter is then a device allowing the relevant party time to think, and it provides the presence of a ‘professional friend’ in the mediation process.

10.22 Where an interpreter is necessary for the effective conduct of mediation, the following guidelines are appropriate for mediators: It is preferable to use professionals as interpreters and not friends, the mediator, or a mediation participant. Clear role definitions are important for the interpreter and also for the party for whose benefit they are present. Where an interpreter is used for the first time, even if they are professionally qualified, they should be fully briefed on the nature of the mediation process and on their role in it. Interpreters are subject to various duties including those of disclosure, neutrality, good faith, confidentiality, competency and accuracy. Mediators should explicitly direct an interpreter to avoid adopting a quasi-mediator role or giving advice or evaluation. Mediators should explain the interpreter’s role to the parties and their advisers when all are present, as part of their opening statement. Mediators should get interpreters to sign confidentiality undertakings before mediation commences. The mode of interpretation should be specified and understood — usually consecutive as opposed to simultaneous. As regards seating, the interpreter should be next to the mediator, to symbolise neutrality as between the parties and the obligations of the interpreter to the process as opposed to an individual client. This also serves to maintain focus on the mediator, as opposed to another professional present. Normally mediators should communicate in direct speech with the interpreter translating, but may occasionally lapse into indirect speech, for example, ‘Interpreter, please tell X that I am going to summarise now …’. Mediators should intervene as soon as a dialogue ensues between the interpreter and the party for whose benefit he or she is present and get them back on track. 10.23 Where interpreters are used mediators are advised to prepare for a lengthier mediation to accommodate the additional person, longer air time, and inevitable difficulties arising from the role. As

regards the quality of interpreters’ work, this is difficult for mediators to monitor and requires them to be observant in relation to parties’ reactions to see if one or both seem concerned at what is being said. However, even active listening and body language will be more challenging, with inevitable cultural differences in these situations. [page 309]

Dealing With Proposed Settlements ‘Outside the Range’ 10.24 What should a mediator do where parties are about to settle on something which is ‘outside the range’ of usual settlements for a particular kind of dispute? The ‘range’ denotes the formal, conventional or usual ways in which such disputes ‘normally come out’. It could be based on court decisions, on industry norms, on community standards or on simple common sense (‘one party should not be getting everything and the other nothing …’). It is, however, seldom a matter of scientific measurement, hence the use of the term ‘range’. Here are some examples of ‘outside the range’ situations: A self-represented plaintiff in a personal injury mediation is about to settle for less than she might obtain in court because she has overlooked claiming damages for pain and suffering. A sexual harassment complainant is about to settle only for an apology in circumstances where she would usually be awarded monetary compensation. A husband is entering a matrimonial property settlement in which no account is taken of his wife’s superannuation entitlements. 10.25 The ‘outside the range’ problem extends to other situations in which one party is at a disadvantage, through ignorance, emotional stress, lack of advice or other considerations, which places them in weaker situations than the other side. The question arises as to what

techniques mediators can use in the face of imminent settlements ‘outside the range’. 10.26 It is useful to start from first principles. A mediator’s role is primarily to assist parties come to their own decisions and not to protect the interests of weaker parties. Moreover, mediators should be aware of non-pecuniary interests, both procedural and emotional, which parties might have in settling for less than might otherwise be obtained. They may not wish to come within the ‘range’. Thus plaintiffs and claimants might settle for fewer dollars than they are ‘entitled’ to in order to achieve finality in the dispute, to avoid the uncertainty and stress of litigation, to get a lesser amount now rather than a greater amount sometime in the future, or in order to turn a corner and get on with their lives. Defendants and respondents might also agree to commercial settlements to avoid bad publicity or to save further legal costs, despite the fact that there is virtually no prospect of their being found liable in a legal forum. It is consistent with the mediation principle of party autonomy to allow parties to give their informed consent to settlements, despite the fact that they are ‘outside the range’. 10.27 These principles suggest that one possible response is for mediators to do nothing and allow parties to settle on their intended terms — the sign them up approach. This is an extreme noninterventionist approach which might be suitable for some clients in some situations. [page 310] In other circumstances, however, the sign them up approach could have serious long-term consequences for one party, in particular where their ‘consent’ is not informed. It could also damage the reputational image of mediation as a dispute resolution process. Therefore another possible response is for mediators to adopt a strong interventionist approach of assisting such a party by advising them directly about the matter which they have overlooked or forgone — the let me tell you approach. However, this could also have

problems in that the non-assisted party is likely to lose trust in the mediation process and it could lead to confusion in the marketplace about the nature of mediation. 10.28 Between the two extremes of the sign them up and let me tell you approaches are various intermediate responses, each of which has some advantages and some shortcomings. Here reference will be made to the personal injury scenario referred to above, where the unrepresented plaintiff is Sarah and Felix is representing the defendant. A mediator could: Work systematically through the proposed agreement, checking it against the list of issues to verify that parties are consenting to each detail: ‘Sarah and Felix, now that we have agreement in principle on these matters let me take you through them one by one to ensure you are entirely clear on each of them.’ Ask the parties in joint session whether there are additional matters they would like dealt with in the mediation: ‘Sarah and Felix, now that we have agreement in principle on these matters, let me check whether there are additional matters or issues you would like dealt with today.’ Query the parties in joint session as to whether they would like to obtain advice before making final decisions: ‘Felix and Sarah, before we go further, would either of you like an adjournment to consult other people about the settlement we are about to reach today?’ Adjourn mediation on the pretext that this is ‘normal practice’, in expectation that the disadvantaged party will use the opportunity to reconsider the settlement or seek advice: ‘Well, we have nearly reached settlement, and it is my normal practice to have an adjournment at this stage, for about an hour, so that both of you can reconsider what you have agreed to and obtain advice on any matter on which you are uncertain or unclear.’ In a separate meeting with the weaker party, the plaintiff, act as agent of reality in relation to the extent to which the proposed agreement is in their best interests: ‘Sarah, you are entitled to make your own decisions here but this needs to be in your long-term interests. Once you agree to this settlement you will have no further

opportunity to claim damages. I should also indicate that this is a technical legal area and many in your position seek advice before agreeing to terms.’ In a separate meeting with the stronger party, the defendant, point out potential legal, ethical or reputational consequences of agreeing to a settlement that disadvantages the weaker party: ‘Now, Felix, you are [page 311] about to sign off on a settlement which you know is considerably less than Sarah would obtain in court. What if Sarah finds out later and seeks to review it? How might that affect your company and for that matter your professional reputation?’ Raise the prospect of including a ‘cooling-off ’ clause in the mediated agreement: ‘Felix and Sarah, in cases like this where one party is in the position of a consumer and the other is a big organisation, it is not uncommon to have a three-day cooling-off period to allow either of you to get out of the agreement. Is that something which might be used here?’ Withdraw from mediation after explaining that the mediator is not willing to continue mediating where parties propose to settle ‘outside the range’: ‘I’m in a difficult position here, Sarah and Felix. While my role is not that of judge or jury, I have to be able to live with the outcome you agree on. If you insist on going ahead with an agreement which is, in my judgment, not within the bounds of reasonableness, I shall have no choice other than to terminate the mediation.’ These options become increasingly more ‘interventionist’ as far as the mediator is concerned. Which of them is appropriate will be a matter of judgment for mediators in the particular circumstances of a mediation. Mediator standards and regulations do not provide guidance on this issue.

Dealing With Absent Parties 10.29 Reference has been made to the question of how mediators might deal with the need for formal ratification of mediated agreements by company boards, chief executives, government ministers and other outside ratifying parties: see 5.82 and 9.68. In many mediations there are also significant absent parties, that is individuals not present at mediation but who, without being required formally to ratify a mediated agreement, may have considerable influence over one or other party. In some cases the existence of an absent party may be obvious to mediators from the facts and circumstances of the case or from an admission to this effect by a party. In other cases a mediator might suspect the influence of an absent party from the reticence of one party or the intransigence of another. 10.30 The following are some illustrations of absent parties with whom we have had to deal as mediators: New partners of former spouses in matrimonial property mediations, who are strong influences on the mediating parties and will themselves be affected by the mediation outcome. Grandparents of children in parenting mediations who have their own interests in seeing the children and might be used for supervised contact, as go-betweens for the parents or to help establish positive [page 312] and supportive familial relationships generally. (Australian legislation recognises grandparents’ roles in disputes between former spouses involving children: s 60CC(3) of the Family Law Act 1975.) Support persons, whether religious, spiritual or emotional, who hold a powerful sway over the parties and their view of what is right or

wrong. External advisers, corporate representatives and influential insiders who can affect the nature or durability of any agreement reached at mediation. Members of boards, committees, social networks, clubs and associations to whom mediating parties will ‘report back’ and who may criticise, ridicule or otherwise undermine their commitment to the mediated outcome. Outsiders who are funding one of the parties and who have high expectations of the process and its outcome. 10.31 Where mediators suspect the existence of a significant absent party, or are informed about such person in separate session, they should work in private with the relevant party on options for dealing with the situation. Here the mediatory method is used to identify interests, priorities, options and choices. Assume, for example, that there is a mediation between Dom and Paula, both employees of a church school, involving sexual harassment. It becomes evident that Paula, the complainant, is concerned about how her fellow employees will react to any compromise she reaches. The mediator might say in separate session: ‘Paula, you have raised this fear about your colleagues’ reactions. How important is that to you, and what ways do you have for dealing with it?’ 10.32 If both parties are aware of the potential influence of an absent party, it may be appropriate for a mediator to address the problem in joint session by explaining that dealing with the outside person is a common problem for them both. In mediation terms, another issue goes up on the board. In the above example it might be, ‘How can the church community’s anticipated criticism of a settlement be dealt with?’ or ‘How can we prevent the church community from interfering with the mediated agreement?’ The mediator can then ask Paula and Dom for ideas on dealing with the joint problem. 10.33 In dealing with the ‘external ratifier’ (see 5.82 above), reference was made to the opportunity for mediators to make contact with that person and present to them an authentic ‘blood, sweat and tears’ version of the mediation. This mediator intervention will not be possible where an ‘absent party’ is also a ‘hidden’ party, known only to

one participant (such as a new partner), and it may still not be easy where he or she is known. However, the same principles apply and parties might agree to a mediator having a major role in this regard. In practice we have also found that some elaboration in the drafting of the mediated agreement, to include reasons and explanations, makes the relevant party more confident in dealing with their ‘absent party’. [page 313]

Involving Children in Mediation 10.34 Reference has been made to the importance of involving in mediation those who, while not themselves direct parties to a dispute, are sufficiently important to warrant some inclusion in the process: see 4.18-4.19. Examples are senior executives in commercial mediations where middle managers were responsible for the original problem, and vehicle drivers and employers in personal injury mediations although insurers are the parties currently involved in managing the dispute. Children in family mediations constitute a different category of those who might be involved in that it is their interests which are directly and intimately affected by decisions taken. While there may be separate legal representatives to uphold children’s rights in some mediations, the focus here is on the direct involvement of children themselves. 10.35 There are four primary approaches to the involvement of children in mediations dealing with disputes between their mothers and fathers over parenting issues: 1. No involvement at all for children, with the parents responsible for any communications to them about the process and its outcome. 2. Involvement of children after mediation has concluded, with the mediator, with or without assistance from the parents, informing them about the outcome and its practical implications for them. 3. Partial involvement of the children, either before the mediation proper, or in joint or separate sessions during mediation, but

without their having any role in the final decision-making. 4. Full involvement of the children in all stages and aspects of the mediation, from start to finish. 10.36 The fourth option is rare in practice and could only operate with older children of significant maturity, with the full consent of parents, and with the mediator’s approval. The first remains common in Australian mediation practice. In the past it has been justified where children of tender years are involved or where there is likely to be major confrontation between their parents. It is supported on policy grounds by those who claim that children should not be involved in the drama of family disputation or feel the burden of choice and decisionmaking. However, this approach is giving way to a more child-focused approach, reflected in options 2 and 3, and increasingly supported by family law policy. 10.37 In certain circumstances it might be entirely appropriate for mediators to inform and educate children about the parenting agreement and its practical implications, for example how it might be amended in the future to take account of their changing needs. This is likely to be a more independent and objective version of the settlement and its practical consequences than either of the parents might provide. [page 314] Alternatively, children may be consulted about how they experience their parents’ separation before mediation begins in a separate session led by a child consultant. Here the children do not join the mediation with their parents and the mediator, but their voice finds its way into the meeting via the consultant: see case illustration below. Another variation may entail direct child involvement in certain parts of mediation. Where children are at an age where they can be consulted about their preferences they could be involved in relevant parts of mediation, subject to safeguards and protections. Given the fact that adolescents can cause the breakdown of a carefully crafted

parenting regime even before it has commenced, there are good practical reasons to involve them in some way in making the arrangements. For example children might act as an ‘advisory panel’ to reality test a proposed parenting arrangement. Here the mediator and parents seek children’s reactions before a final agreement is signed by the parents. 10.38 As with other special issues, there are ultimately many ways in which mediators can adapt the process to deal with children’s needs and interests. An example of child-inclusive mediation is offered here. Case illustration: Child-inclusive mediation Child-inclusive (also called child-informed) practice models give children a voice in mediation through the engagement of a child consultant before mediation starts. The consultant conducts one or more sessions with each child to explore their experience of their parents’ separation. To this end consultants use a range of creative tools including drawing, story-telling, the use of cards depicting emotions and figurines to represent family members: see Hewlett (2007). In a separate meeting before mediation the consultant provides feedback from the session(s) to the parents and mediator. Mediation then proceeds in ‘the normal way’ with the mediator, parents and advisers, if any. Where parents have been willing to listen to children’s separation experience through a child consultant, the children’s voices can be influential in focusing discussions on their interests and needs. The parents may also wish to clarify or follow up on certain points with the consultant at a later stage of mediation. In this model of child-inclusive mediation, children do not face their parents in the mediation room. Their involvement, while direct, takes place in the safety-net of a separate session with a skilled child specialist. Importantly, children are not asked what sort of parenting arrangements they would prefer or other questions relating to possible outcomes; the focus is on their experiences of separation. Children over five years of age are considered capable of participating in child-inclusive mediation in this way.

There is a cautionary note on any child involvement in mediation: children should never have adult responsibilities imposed on them and should not feel that they are choosing between their parents. [page 315]

Dealing With Experts in Mediation 10.39 A common feature of litigation is the involvement of competing experts, one or more presenting evidence for each side. A problem in the legal system is that because their views often differ fundamentally from one another, dual experts become duelling experts with a nonexpert, the judge, having to decide between them. The duelling experts syndrome is a product of the adversarial nature of the litigation process. Adversarialism entails that parties themselves are responsible for conducting the investigation, preparation and presentation of their respective cases. A judge’s traditional role is limited to that of adjudicating on the merits of the two presentations and it does not conventionally extend to establishing the truth through investigation, fact-finding and the calling of independent experts. In many cases the available remedies require judges to give an either/or verdict based on the evidence and arguments presented by parties. 10.40 The adversarial system encourages each side to make its best possible case, to be as extreme in its presentation as possible and to use tactics and arguments to weaken the other side’s case. Each side engages its own expert who presents reports and evidence in favour of their case and in contradiction of the other’s. There are three reasons as to why experts give contrasting evidence: 1. There may be genuine differences in their observations, evaluations and opinions as occurs in many technical areas, from the causes of industrial accidents to the long-term effects of physical injuries. 2. Experts’ views may be based on different versions of the facts or

partisan perceptions of events; for example accountants may have different valuations of a business because they received access to different financial records. 3. Experts may be retained because they have established reputations in their areas of expertise and can be expected to behave more as advocates than as experts, for example ‘plaintiff’ and ‘defendant’ doctors in personal injury disputes. 10.41 There are different ways in which ADR processes can avoid the syndrome of duelling experts: see Wade (2006b). Some processes are themselves ‘expert’ based, for example in case appraisal experts give indicative opinions based on limited presentations of the case by each side and their experts. Although this opinion is ‘non-binding’ there can be cost penalties for parties who do not do as well at a subsequent trial as indicated in the opinion. In this model, the case appraisers act as a third independent expert who renders their opinion in the knowledge of the views of the parties’ experts. 10.42 In mediation the flexibility of the process can be deployed to avoid the duelling experts syndrome. Mediators need to diagnose the reason for the differences between experts, in light of the three possibilities referred to above, and then adapt the process in light of this diagnosis (which is always tentative). This is illustrated through three case studies in which different approaches are taken to the problem: see Table 10.3 below. [page 316]

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[page 318] 10.43 Here are other possible ways in which the problem of competing experts can be dealt with in the mediation process. A number of these approaches are reflective of the increasing use of concurrent evidence (or hot-tubbing) in courts and tribunals around Australia, in which expert witnesses present their evidence concurrently and are subject

to questions from one another and from the judge. By requesting experts to identify the common ground between them and provide joint statements of reasons for their differences, particularly where valuations are in dispute. By suggesting the appointment of a single joint expert in addition to the competing experts. A third expert can have a number of roles including asking questions of both duelling experts with a view to clarifying issues for the parties, listening to the duelling experts and then making a recommendation, or making a binding expert decision based on submissions from the party-appointed experts. By conducting a ‘mini-moot’ in which experts make presentations and act as ‘witnesses’ for a short period of time so that each side, and their advisers, can hear the best case of the other. Here protocols are required to allow some questioning of experts, without it deteriorating into cross-examination or interrogation. Allowing experts to question each other for a set period of time during a joint mediation session, or requiring experts to respond in writing to questions from both parties. In so far as the experts’ views relate to the liability question, by attempting to circumvent liability altogether by making a commercial decision on damages and other aspects of the dispute. By allowing the mediator to give a decision on the point of expertise, thereby converting mediation into a blended process with a determinative element, with all the advantages and shortcomings of that system: see 9.57-9.62.

Dealing With Professional Advisers A note on terminology 10.44 Professional advisers such as lawyers are commonly referred to as parties’‘representatives’. In a North American context the term ‘mediation advocate’ is also used. Terminology is important in mediation and the terms ‘representative’, ‘representation’, ‘advocate’ and ‘advocacy’ are not used here as they have the connotation of a

professional standing in the shoes of the client, taking their place, as it were, at the negotiation table. This notion is not in keeping with the spirit of mediation at which parties themselves are able to play a direct and active role in the process. Terms such as ‘advisers’, ‘supporters’, ‘assistants’, ‘skilled helpers’ and others are preferable. Nevertheless it probably does no harm to refer to ‘representative’ or ‘advocate’ in some [page 319] mediation contexts. While it must be acknowledged that language is important, mediators should not become obsessive-compulsives. The issues for professional advisers 10.45 Some references have been made earlier in the book to the roles of lawyers in relation to preliminary conferences, party statements, separate meetings and the drafting of agreements. Here the subject of professional advisers is looked at from the mediator’s side of the fence, and not from the side of lawyers or other professionals assisting clients in mediation: see the scenario at 10.49. Generally speaking clients and their advisers are responsible for their own participation and behaviour in mediation. However, mediators can have both pro-active and reactive roles in this regard. They can, for example, educate all participants beforehand about their appropriate roles and they can intervene reactively where advisers transgress the mediation guidelines and play inappropriate roles. The range of roles that legal professionals can play in mediation is addressed below at 10.52. 10.46 Having advisers present at mediation increases the system’s transaction costs because an agent’s interests are never identical with those of the principal and there are more needs to accommodate. Thus professionals have interests in maintaining satisfied clients, in being seen to perform their role in front of other professionals (including the mediator), in maintaining their desired reputation, and in not being sued by their own clients. There are also many factors deriving from the complexities of the human condition which affect

advisers as much as their clients: personal fears and anxieties, past (and future) relationships with other advisers, the nature of the dynamics with their client, demands from colleagues and supervisors and time pressures. This makes for a complex mediation situation. 10.47 This is not, however, to suggest that mediation involving professional advisers is Mission Impossible. On the contrary, in our experience many mediations would not have succeeded without the appropriate professional involvement of lawyers and other advisers. The real questions are, what can mediators do to shape and mould the participation of professionals, and how should they go about doing it. 10.48 To take the how question first, the preliminary conference (see 2.20) provides an early opportunity for mediators to inform and explain to advisers what is expected of them in mediation. This can be reinforced with written information for advisers, distributed at the preliminary conference or sent out in advance of mediation: see Appendix 2. Some mediators request advisers to sign these codes as a way of reinforcing their commitment to them. More formal still are occasional attempts to incorporate into Agreements to Mediate protocols on professional behaviour and have advisers, as well as their clients, sign this agreement. However, in this department there is much to be said for the less formal approach, namely that of educating, explaining and guiding advisers through informal means. [page 320] 10.49 As regards the what question, mediators need to educate, explain to and guide advisers on the philosophy and objectives of mediation, on the central participatory role of their clients, on survey findings that clients appreciate mediation because it allows them to speak and be heard, on the importance of focusing on interests as opposed to legal rights, and on other principles and values of the mediation process. As regards their roles, it should be emphasised that advisers function best when they work as supporters not advocates and with less emphasis on legal rights and more on

personal and commercial interests. The assumption here is that advisers who understand the nature of mediation will be less defensive about their own roles, and the less defensive they are the more likely they will allow the mediator to conduct the process appropriately. However, this is also a somewhat optimistic approach and the ego, personality and tactics of advisers have been known to disrupt the process, notwithstanding their full understanding of mediation. Inexperienced or youthful mediators can also anticipate attempts by older, more worldly professionals to dominate them and subvert the system. Case illustration: The controlling sports agent The senior agent of an international sports agency, Gerald McChoir (known simply as McChoir), was representing Jim Ward, a famous cricket star who was suing his personal counsellor, Liz Bishop, for trade secret misappropriation. It was alleged that Liz had stolen and sold Jim’s confidential personal training schedules and daily diet plans to other cricketers around the world. McChoir flew into Melbourne for the mediation and during pre-mediation discussions indicated that his client could not tolerate being in the same room as Liz and that mediation could only proceed if conducted on a shuttle basis. Jim ‘confirmed’ this, in the presence of McChoir, and the mediation commenced with the parties in separate rooms. After two futile hours of ferrying messages, the mediator confronted McChoir and insisted on a face-to-face meeting. The agent eventually relented and his client, Jim, ‘acquiesced’. The discussions began in a surprisingly civilised manner with Liz apologising to Jim. This was followed by a long discussion between the parties and Jim was able to explain how disappointed he was that Liz had breached his trust and had betrayed him. The formerly controlling sports agent, McChoir, began to assume a more passive, but still significant, role in the mediation process. After one hour the mediator began to assist the parties to generate options and commence negotiations. This led, seven

hours later, to a full agreement in terms of a compensation package, personal acknowledgments and public communications on the matter, driven in the main by the parties themselves.

[page 321] 10.50 Table 10.4 sets out possible advantages and disadvantages of lawyer participation in mediation. While the table focuses on lawyers, the principles are generally also applicable to advisers from other professions. It is adapted from Hardy and Rundle (2010: Ch 5). 10.51 Table 10.4 identifies potential opportunities and risks associated with using professional advisers in mediation, but the advisers’ roles and contributions can vary considerably. For this reason it is important to consider what kinds of involvement by lawyers and advisers are appropriate and what kinds are inappropriate in different categories of mediation: on this topic see also Wade (2000) and Abramson (2010).

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Degrees of involvement by advisers 10.52 Hardy and Rundle (2010) identify five different roles for professional advisers in mediation. The following diagram and descriptions are drawn from Chapter 5 of their work. The five roles are ‘absent adviser’, ‘adviser observer’, ‘expert contributor’, ‘supportive professional participant’ and ‘spokesperson’, with each successive role entailing more active involvement as shown in Figure 10.1 below.

Figure 10.1: Professional adviser roles in mediation

Each of these five roles has their own advantages and disadvantages, which are discussed below. 1. Absent advisers Absent advisers are exactly that: absent. Professional advisers in this least interventionist role are tasked with ensuring that their clients can effectively and efficiently participate in the mediation process, but they do not attend actual mediation sessions. This means providing legal, technical and strategic advice before, during (by phone, SMS) and after mediation, as well as teaching them how to participate in the mediation itself. Absent advisers are most commonly (un)seen in family and interpersonal mediations. Here direct client participation in the mediation allows for a focus on relationships and individual needs without the imposition of legal or technical jargon. Absent advisers are most suitable where parties have the capacity and willingness to participate actively and effectively in the process. They may be an attractive alternative where clients cannot afford the costs of adviser observers. 2. Adviser observer Adviser observers perform the same tasks as absent advisers, and they attend at the mediation. As the word observer suggests, professionals in this role do not participate actively in mediation and do not interact with the mediator, any other party or any other adviser; they only observe and offer legal or other professional advice to their client when needed. Adviser observers are suitable for more complex mediations where parties still wish to speak for themselves during the mediation but wish

to be supported by the presence of an adviser. In this role, professional advisers can assist clients in keeping track of the complexities of issues at hand and [page 323] they can offer advice based on new information heard first-hand during mediation. This prevents confusion that could arise in communicating with absent advisers, but it comes at increased cost to clients. 3. Expert contributor Expert contributors perform the same tasks as adviser observers, but instead of being silent observers, they participate directly in the process by sharing their professional opinions with the mediator, the other party and the other party’s professional adviser. Here an exchange of professional opinions is undertaken as a form of reality testing, in hope of narrowing the issues in question so that settlement can be reached sooner. However, expert contributors are still observers to the extent that they do not negotiate on behalf of their clients — as with absent advisers and adviser observers, clients must be prepared and able to conduct negotiations on their own. Professional advisers acting as expert contributors are suited to disputes where legal or technical issues are serious or complex enough to warrant the active presence and accompanying expense of an adviser. 4. Supportive professional participant Supportive professional participants perform the same tasks as expert contributors, but instead of being limited to sharing professional opinions, they work collaboratively with clients as a team. This role maximises the advantages of bringing advisers to mediation because there are no restrictions on their participation. The precise division of roles between adviser and client varies and depends on their respective abilities and skills, the mediation circumstances, and the strategy of the adviser-client team. For example lawyers adopting the

role of supportive professional participant could provide legal advice, assist with problem-solving and reality testing, and drafta mediated agreement. Their clients could offer their own views on what should be discussed at mediation, articulate their priorities, interests and concerns, generate initial options, and make final decisions after consulting with the adviser. The supportive professional participant role works best when both advisers and clients are well-prepared, work positively together and have similar views on desired outcomes. 5. Spokesperson Professional advisers take on the most interventionist role of spokesperson when they speak on behalf of their clients throughout mediation. In a way, this role is the inverse of the adviser observer role. In that role professional advisers only speak to their clients; with a spokesperson, clients only speak to their advisers to provide instructions as needed. The use of spokespersons should be reserved for mediations where clients do not have the capacity to participate actively. A party’s capacity can be affected by psychological disorders, mental disabilities and power imbalances between parties. Where the spokesperson role cannot overcome capacity issues, it should not be adopted. In such cases it may be appropriate to manage the dispute through other dispute resolution methods. [page 324] 10.53 The five professional adviser roles identified by Hardy and Rundle demonstrate the spectrum of adviser involvement in mediation. However, as a matter of practice, advisers may vary the nature of their involvement at different mediation stages. The following case illustration offers specific examples of adviser roles in practice. Case illustration: Law advises Head in mediation In his capacity as CEO of Pharma-Products, Dr Head is to attend

mediation in relation to allegations of false advertising and misrepresentation in relation to a suntan lotion product. He consults in-house counsel, Ms Law. Ms Law could: coach Dr Head on how to represent himself in mediation and have no further involvement herself; or attend at the preliminary conference and leave her client to participate in mediation meetings on his own; or be physically absent from mediation but be accessible by phone or email; or be present at the mediation but have restricted participation (for example observing for the first two hours and offering only legal advice to Dr Head; from the option generation stage onwards engaging directly with all participants in relation to legal points only); or be present during the mediation and participate fully and collaboratively with Dr Head throughout the process; or be Dr Head’s ‘voice’ for the entire mediation; or join the mediation only after her client and the other party have reached agreement in principle, in order to advise Dr Head legally and undertake drafting of the settlement. All these variations are encountered in Australian mediation practice. Good lawyers are comfortable about considering such options, together with their clients and the mediator, so as to suit the needs, circumstances and resources of the relevant dispute.

Meetings with and without professional advisers 10.54 Within the mediation process there is sufficient flexibility to allow for various meeting constellations involving, or excluding, professional advisers (see 5.64):

Mediators might see the advisers together without the clients (adviser meetings). Mediators might see the clients together without the advisers (party meetings). Mediators might ask to see an individual client without his or her adviser (party side meeting). [page 325] Mediators might ask to see an individual adviser without their client (adviser side meeting): see the case of the controlling sports agent above. Mediators might get the advisers to meet together on their own, with a specific brief aimed at assisting the settlement process (advisers only meeting).

Asking to see prior advice 10.55 One of the major functions of lawyers in mediation is to provide their clients legal advice. This is their area of expertise. Some mediators ask to see written letters of advice from the lawyers to their clients before the mediation commences. In the above scenario, the mediator might contact Ms Law by phone and ask for the letter to be sent to him or her. A mediator could require the letter to conform in style and content with the mediator’s stipulations, such as a mediation memo. Ms Law could be required to refer to both the strengths and weaknesses of her client’s case, to the worst-case outcome should it proceed to trial as well as the best-case outcome, to the costs of various specified stages of the litigation process should the matter not settle at mediation, and to a list of issues for mediation: see 4.10. This arrangement not only imposes discipline on professional advisers, it also prevents clients like Dr Head who do not have advisers present from making extravagant claims to mediators about the nature of advice given them. One of the great advantages of

lawyers in mediation is that they know a bad case when they see it and having this expressed in black and white prevents the client from countermanding the advice. Mediators would have to keep such letters confidential.

Seating of advisers 10.56 There is a Great Seating Debate in mediation (see Chapter 4) and one of the reasons mediators need to control the physical environment (and arrive early) is so that they can take charge of seating arrangements. Many professional advisers such as Ms Law like to be seated near the mediator in a hierarchical arrangement where they are the experts ‘representing’ their lay clients. It is preferable for mediators themselves to make the seating decisions. It is in keeping with the spirit of the mediation process and client selfdetermination for Dr Head and the other party to be seated in places of precedence near the mediator, with professionals further away in their supportive and advisory roles. However, as in all other aspects of the process, mediators need to develop hypotheses on appropriate adviser placement prior to mediation and might have good reasons for indicating other seating arrangements.

Documentation 10.57 Lawyers have expertise in developing and systematising relevant documentation for dispute resolution processes. Mediators can attempt to manage lawyers’ documentation functions in relation to the specific needs [page 326] of a mediation. In some court-referred mediations mediators have delegated authority to order production of documents and other materials. In these situations it is not unusual for lawyers to have much of the documentation necessary for litigation available at

mediation. How essential or relevant this is, depends on circumstances. A mediator we know makes a show of having a file in front of him containing court documents, correspondence, reports and other papers sent him by lawyers. He picks up the file, deposits it on the floor and announces to the meeting, ‘Ladies and gentlemen, we may get back to this, but let’s see if we can solve the problem first without it.’This is a dramatic way of emphasising that in mediation clients’ personal and commercial interests are of more importance than their legal rights, indicating that the craftsmanship of their lawyers in providing documentary support for their legal rights might have only limited significance in mediation.

Party statements 10.58 Reference has been made to the desirability of parties themselves making the initial statements and for professional advisers then to expand on these where necessary: see 5.17-5.18. Again this principle might need modification, but mediators, and not professional advisers, should assume control over this aspect of the process. This may require some quiet mediator assertion, but diplomacy and tact are not incompatible with control. Here it may be useful for mediators to be educative and to normalise, for example by saying: ‘Ms Law, in my experience mediation works best where the client makes the opening statement and the adviser is then given an opportunity to expand on it. This would allow Dr Head to indicate what his personal concerns are here today. This is also how I normally conduct mediations. So, Dr Head, would you like to begin …?’

Accommodating the need to be involved 10.59 One of the needs of professional advisers is to be seen to be involved and there is danger in having advisers present when they do not feel fully engaged in a mediation. It can lead to problems ranging from overt hijacking of the process to subtle forms of sabotage. To avoid these consequences, mediators should ensure that there

is scope for the appropriate involvement of all advisers. Thus lawyers might be asked to exchange views on legal and evidential issues, without making submissions, and to ask clarifying questions of the ‘opposing’ party, without resorting to cross-examination. Legal advisers also have significant roles at the drafting stage, and this involvement can be foreshadowed by mediators from the earliest stages. Thus a mediator might say: ‘Although mediation is essentially an opportunity for you, the clients, to sort things out yourselves, you can always call on your lawyers for advice and support. I would also anticipate the lawyers drafting the settlement agreement and perhaps that is something they could have in mind as we move along.’ [page 327]

‘Taking instructions’ 10.60 In mediation lawyers often say to a mediator, ‘I’d just like to take instructions from my client on this matter’. If the mediation is in joint session this would entail a short adjournment, if it is in separate session mediators would leave a lawyer alone with his or her client. When lawyers use this time-honoured phrase in mediation it could have one or more of the following meanings: ‘I need to ask my client what they think about an offer, counteroffer, and so on, and about what they would like me to do’ — the expression means what it says. ‘I need to advise my client on the current offer and where the negotiations might be heading’ — the lawyer needs to take control. ‘I am not sure what to do next and need some time to reflect and consider options’ — the lawyer is in trouble and needs time out. ‘I need to ask my client about important new information which has come up for the first time’ — the lawyer is surprised by developments and needs to reconsider strategies. ‘I need a break and a cup of coffee’ — the lawyer needs the amenities and a fix.

As shown in Chapter 6 (see 6.14), every message has four meanings and with lawyers there may be even more. It is a mediator’s role to examine language in its context and respond appropriately. 10.61 In most of the scenarios listed above, the lawyer is ‘taking instructions’ with the goal of advising their client or there will be an opportunity to provide advice. Mediators should therefore inquire of a lawyer who has expressed the need to ‘take instructions’ what they will be advising their client: ‘Now, Ms Law, you have said that you wish to take instructions from Dr Head, but my experience is that in complex situations like this clients want advice from their lawyer. Perhaps you can indicate to me what you will be recommending to Dr Head about the offer …’. This cannot be done in open session, and even if asked privately in the corridor a lawyer may not be forthcoming. However, it accords with the realities of client-adviser relationships, namely that under the guise of ‘giving instructions’ clients often ask the professional what they should do. Where mediators take this pro-active step, it gives them an opportunity to act as reality agent if the adviser is about to give extremely unrealistic or unhelpful advice.

Assisting advisers to modify their advice 10.62 Sometimes professional advisers have given a clear statement of advice to their client, often incorporating a monetary figure, and this has been reinforced publicly in front of the other party and their adviser. [page 328] For example Ms Law may have said before mediation and again in the joint sessions, ‘There is no basis in law for holding Pharma-Products liable and the most the claimant could recover is the dollar cost of the lotion purchased.’ This public statement creates difficulties where the lawyer is required to back off the advice, as it is difficult for them to do so

without losing face. Mediators can make the situation easier for advisers by providing a pretext for them to change their advice. For example a mediator might say ‘Ms Law, now that you have heard the other side’s version of the incident, and read the new documents that have come to light, how do you see Pharma-Product’s position?’, or ‘Ms Law, now that you have seen the documentation on medical expenses, how would you suggest we deal with the damages question?’ By giving this opening to the adviser, the mediator is attempting to allow them to change prior recommendations without losing face.

A final word on the role of lawyers in mediation 10.63 The facts of life are that lawyers will be involved in many mediations, particularly where they are a result of court referral. This is becoming a specialised form of legal practice, along the lines of representing clients before commissions of inquiry, in litigation or in tribunal proceedings. It is noteworthy that in some Australian jurisdictions there are specific obligations on lawyers in terms of statutes or rules of court, for example in deciding whether to oppose a proposed court referral to mediation, or whether to make representations for a different form of dispute resolution such as case appraisal or neutral evaluation. At the federal level the Civil Dispute Resolution Act 2011 requires lawyers to advise clients of the requirement to file a genuine steps statement (to the effect that they have taken genuine pre-litigation steps to resolve their dispute) and to assist clients in doing so: see 2.9. See further on the regulation of lawyers in mediation Boulle (2011: 289-303). Other forms of pre-mediation assistance that lawyers can offer relate to the question of appropriate timing and venue, the identity of the mediator, the relevant model of mediation, and the pre-mediation exchange of information: see 2.12 and 4.4-4.10. 10.64 In the final result, mediation-friendly advisers can be an extremely valuable resource in mediation. They can serve as quasimediators in many ways: in managing their clients’ expectations, in

keeping lines of communication open, in acting as constructive negotiators and in serving as reality agents when they know their client is being unrealistic. It is wise mediation practice to use this potential resource to the greatest extent possible. Professionals can be either deal-makers or deal-breakers and mediators have the responsibility to aim for the former. [page 329]

Dealing With Complex Multi-party Disputes 10.65 Some mediations are complicated by the wide range of issues involved, the diversity of subject-matters and the large numbers of participants. There are many examples: native title disputes, corporate mergers, and long-standing conflicts within communities. Sometimes these mediations also involve broad issues of public policy, for example in relation to town planning matters, provision of infrastructure such as mobile phone towers, and location of facilities such as prisons and airports. These mediations are characterised by high degrees of intensity, the need for significant resources such as time, information and money, the complexity of polycentric decisionmaking, and potential problems in the performance and enforcement of settlement agreements. 10.66 Some relevant issues have been raised in the prior discussion of team negotiations: see 2.26. It is important to bear in mind that in these situations the core principles of mediation are still relevant, they just need to be applied in a modified framework. There are particular challenges in dealing with multi-party cases: Alexander and Howieson (2010: 248-61). These include: As the number of parties increase, so does the likelihood that coalitions will form, making decision-making difficult. Members of coalitions cooperate with one another in competition with other coalitions, but they also compete against one another in terms of the allocation of benefits obtained by the coalition.

Principled negotiation becomes problematic as groups tend to rely on common positions for their unity, making movement from positions to interests more difficult. Negotiation tends to be simplified through majority or unanimous decision-making rules. Majority rule fails to recognise the strength of individual preferences, whereas the unanimity rule does not encourage creativity. It may also be difficult for group members to agree upon a method of voting. Each group (or each member of a group) considers that the others are taking extreme, or unreasonable, positions (the ‘lone moderate effect’). Taking the above points into account, some matters requiring particular attention in multi-party mediation include: Identification of key stakeholders before the mediation meeting. Appropriate qualifications of mediator, or mediators, as regards personal attributes or professional background. Extensive pre-mediation preparation with different groups so as to manage expectations, secure commitment and agree on decisionmaking protocols: see 2.20. [page 330] Consideration of important procedural matters such as mediation guidelines, speaking time, use of separate meetings and ‘shuttle diplomacy’. Reducing complexity through use of questionnaires to collect views, group brainstorming, evaluation techniques, and the one-text procedure: after parties have explored interests and generated options, a draftagreement is prepared and continuously circulated to all parties for comment and critique until agreement is reached. Finding ways of preventing and dealing with anticipated difficulties over resources, mandates, timing, ratification and finalisation of formal agreements. The need to drafta customised Agreement to Mediate. Consideration of who not to involve in the round table discussions,

such as those with long-term bitterness, and ways of preventing sabotage attempts by those excluded. Establishment of a ‘process control group’ with representatives from each set of stakeholders, to advise on progress in the conduct of mediation. Development of a report-back system to keep external groups informed, involving mediators where necessary. Balancing privacy and confidentiality, on one hand, with publicity and media statements, on the other. Ongoing monitoring of complicated agreements with continuing obligations for the parties. 10.67 The following case illustration highlights a number of features of multi-party mediations. Case illustration: Complex multi-party mediation A state-run public transport system was being modernised in a major city for the benefit of commuters, to reduce congestion on the roads and to ensure long-term reductions in government transportation budgets. It involved options for involvement by private operators in conjunction with continued local government involvement. As with any modernisation process the changes promised benefits for some and threats to the livelihoods of others. There had been intense and acrimonious discussions for several years but no settlements had been reached. It was agreed by all parties to conduct a mediation over two days, to be funded by a state authority. Participants Four entities participated in the mediation: the local government and three private transport associations. Other important stakeholders were government departments and political officeholders, individual members of the three associations, commuters and other road users. Two co-mediators were appointed to facilitate the discussions.

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Pre-mediation Separate meetings were held between the co-mediators and each of the groups to prepare all participants for mediation, secure commitment to the process and introduce some theories of conflict and negotiation. Operational issues were also discussed at these meetings, conducted on a confidential basis, and each group committed to customised mediation guidelines. After discussing authority and mandates it was, importantly, agreed that final agreement to a proposal would be based on twothirds approval within each group so that it would be less easy to jeopardise settlement. Each group committed unanimously to this decision-making system. There were also extensive preparations by the co-mediators together in the light of disclosures made by the parties. It was agreed that an ‘interventionist’ mediator style was warranted, given the numbers involved and the tensions among groups. Organisational matters The mediation was held on a residential basis at an isolated conference resort which had meeting, eating and sleeping facilities. A large room was used to accommodate 60 participants in plenary session and all present at these meetings were required to sign attendance registers each morning and afternoon. All groups had their own individual meeting rooms. Mediation commencement To alleviate the tension and group stereotypes, participants were invited as individuals to gather in different parts of the room beneath an animal motif — dog, rhino, eagle, lion and so on. Beneath each motif there were self-selected participants from two or more groups. Each group was invited to identify the characteristics of the animal concerned, why they identified with it and what dispute resolution attributes it might have. The exercise broke the ice, eased tension in the room and led to some short-

term alliances, before the individuals returned to their groups of origin. Process feedback group Each group was invited to nominate two members to a process control group which met with the co-mediators during adjournments to discuss procedural, but not substantive, issues which ranged from access to amenities to increased translation services. Agenda-setting Given the size of the meeting the mediators presented a preprepared agenda based on their preliminary meetings. Hard copies were distributed to all participants and it was also displayed on a screen. After brief discussions the groups adjourned into separate meetings and returned for feedback and suggestions. Within about 30 minutes the four groups and 60 participants had agreed on a mediation agenda. Joint discussions Discussions on each agenda item were commenced by one of the three nominated spokespersons for each group. Thereafter discussion was open to the full meeting, controlled by the comediators through access to two roving microphones. Key ‘concession points’ were noted by one of the mediators in dot point format. Approximately every 15 minutes a strong summary was made by one of the co-mediators, after which the other made a ‘suggestion lite’ for the next phase of discussions. In these discussions attempts were made to reach agreements at high levels of principle.

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Separate meetings

As is common in such mediations there were extensive differences within each group and most of the first afternoon was spent in separate meetings so that group policy and priorities could be coordinated. The mediators moved among the groups and, unusually, split up occasionally so there would be greater mediator presence within them. Task team On the second day four task teams were constituted to deal, respectively, with financing, time-tabling, management and transitional issues. Teams comprised approximately equal numbers from each group and the mediators elected to allow them to work without supervision, before reporting back to the plenary session through a nominated spokesperson. Final bargaining Given the number of groups and participants, final bargaining took place at a relatively high level of principle and the plenary session mandated a drafting group to finalise the settlement. Drafting and approval A group of eight representatives and the co-mediators were involved in the agreement drafting process. Once drafted, the agreement was discussed in separate sessions by each group with the mediators circulating among them, after which a second, more pedantic, drafting session was conducted. Approval was given in each group in terms of the decision-making process agreed to previously. Ratification The representatives of one group contended that they did not have a mandate to finalise the settlement agreement without reporting to their constituents. In order to secure their signatures on paper, the agreement was redrafted to make it subject to approval by the particular association within a period of seven days. The mediators, by agreement, convened this meeting and reported to the other groups on minor textual amendments requested as a result of the meeting. Implementation began two months later.

Terminating Mediation Without Agreement 10.68 Generally mediators may terminate a mediation in the absence of an agreement where they form a view that: one or more parties or their advisers are seeking to misuse the process, for example to delay proceedings; one or more parties or advisers are acting in bad faith; it is necessary to ensure the safety of one of the participants; the agreement being reached by the parties is unconscionable or illegal; [page 333] the usefulness of the process has been exhausted; or there is no reasonable prospect of the parties reaching agreement. These matters are dealt with by the NMAS Practice Standards, primarily by s 11, and s 4 on the safety aspect. Parties, of course, retain the right to terminate mediation at any time: s 3(4)(d). 10.69 Where parties are unable to reach agreement there are several principles which should guide mediators in terminating. These are in addition to the principles outlined in 5.80 in relation to termination when agreement has been reached. The main guiding principles are that, whatever the level of frustration or disappointment, mediators should terminate on as positive a note as possible and provide a basis for future settlement. They should attempt to generate lists of matters on which there is agreement and on which agreement is still required. This provides some sense of achievement and mediators can highlight other achievements, such as sharing of information, which have occurred in the process and have left the dispute in better shape than when mediation started. It is also appropriate to normalise the inability to

settle to reduce parties’ sense of failure. Mediators might advise them to take their time before deciding on the next course of action, particularly if they are in a state of agitation over the current impasse. It may be useful to discuss alternative process options, such as arbitration or case appraisal, with parties and advisers. Finally mediators can remind parties of the option of returning to mediation should circumstances change at any time. 10.70 This is a possible mediator presentation for these situations: Mediator: In some cases mediations do not achieve settlement for a range of reasons, and this seems to be one of those situations. However, you have made some real progress today and I have written up a list of issues on which there is agreement. Hopefully you will not have to re-open these issues again. It may also help you to have a common list of those issues on which you have yet to reach agreement so that you can work in the future from the same list. Statistically it is unlikely that this matter will reach a court hearing and you should each feel free to approach me about resuming the mediation at any time. Let me reassure you about the confidentiality of what has occurred here today and I would like to wish you both well in dealing with this in the future.

Dealing with the walk-out 10.71 A party sometimes moves beyond idle threats and starts to walk out of a mediation. Here mediators need to think and act quickly. They may try to head the walking party off before they reach the door and encourage them to stay or suggest a separate meeting. Where a party has already left, the mediator might make mobile phone contact once they have had a chance to cool down. Ultimately a party’s right to terminate should be respected, but some mediator persistence is compatible with this principle. There is always the prospect that a walk-out is a power play designed to force concessions from the other side. These possibilities are illustrated below: [page 334] The genuine walk-out :An unrepresented party had been giving warning signals and suddenly walked out of a mediation joint session, with the parting shot that he would see the other side in

court. Four hours later there was a call to the mediator from a lawyer. The client had gone straight for legal advice, and it was recommended that he accept the latest proposal on offer. The matter was settled on this basis. The strategic walk-out : A legally represented couple who were business partners walked out of mediation while the mediator was with the other side. Their lawyer suggested that mediation continue and that if there was significant progress he would contact them on their mobile phone. The other side, also represented, immediately made a major concession. After further negotiations, the couple was contacted and returned to sign the settlement.

Mediator Learnings 10.72 This chapter raises the following points of significance for mediators: 1. As experts in conflict management and dispute resolution, mediators need to be aware of those special issues which, although they might not be relevant in routine matters, could occur in certain situations; many of these contingencies have to do with issues of power. 2. Mediators should initially try to diagnose the special situation before developing an appropriate response; the diagnosis is always tentative and, if the intervention is not appropriate, will have to be modified. 3. The roles of professional advisers may vary from one mediation to the next. Mediators should discuss and clarify with all participants the nature and parameters of each adviser’s role. 4. All special situations require some modification or adaptation of mediation procedure, with mediators taking the initiative but attempting to consult parties and advisers and secure their agreement to the changes.

Tasks for New Mediators 10.73 Interview two legal advisers with considerable mediation

experience. Ask each to explain their roles in mediation with a view to ascertaining the adviser model (see 10.52) with which each is most aligned. Compare your findings for each adviser. To what extent are their styles similar and how do they differ? 10.74 Interview an experienced mediator or mediators about ‘special issue’ situations they have encountered. Drafta list of such issues, ways in which mediators dealt with them in practice, and other ways in which you think they might have been dealt with. [page 335] 10.75 Assume you are a mediator in a case where an employee who has been unlawfully dismissed is about to settle for a fraction of the monetary compensation to which she would be legally entitled. With reference to ways of dealing with these situations referred to in the chapter, draw up a list of ways you consider most appropriate for dealing with this scenario. 10.76 Think about a group process in which you were recently involved — it need not have involved a conflict. What interventions or techniques did the facilitator use to reduce complexity and structure communication and decision-making? Make a list of these and consider how these might be useful in a multi-party mediation.

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CHAPTER 11

Avoiding Mediator Traps Introduction Unrealistic Expectations Losing Impartiality Dominating the Process Losing Control of the Process Ignoring Emotions Moving to Solutions Too Quickly Pushing the Parties Assuming a Differing Professional Role Being Unprepared Allowing Agreements to be Left Undocumented Ignoring External Parties Mediator Learnings Tasks for New Mediators

Introduction 11.1 Dispute resolution is a complex phenomenon and there are potential dangers in the mediation process. Parties are responsible for some of the dangers and there is little that even a well-prepared mediator can do to avoid them, for example a sudden walk-out, a physical attack or a client dismissing their lawyer. Others are caused by external circumstances, for example media representatives bursting into a mediation room or the lights failing. In these abnormal situations presence of mind is more important for mediators than

preparation or planning. [page 337] 11.2 There are also, however, potential dangers in mediation that are at least to some degree created by mediators, in the sense that they are the result of practices or interventions, or the lack of practices or interventions, which are attributable to mediators and not to the parties or external factors. These risks can be mitigated through planning and preparation, though presence of mind is also useful when they do eventuate. They are referred to here as mediator traps. 11.3 What follows is a description of some of the traps that can be created by mediators themselves, together with potential strategies for avoiding them. As usual there is no single strategy that will guarantee that a trap does not eventuate and frustrate a mediation and all those participating in it. There are, as ever, only options and choices. Observant readers will notice that this chapter draws on material from previous chapters, albeit from a different perspective. The same readers will be pleased that extensive cross-referencing has been avoided. Similarly, references to the NMAS Practice Standards have been included elsewhere in the book and are not duplicated here. Unless otherwise indicated, the following fact scenario will be used to illustrate issues raised in this chapter. Case illustration: The Kookaburra Retreat and Papadopoulos mediation The parties Party A: George and Maria Papadopoulos Solicitor: Not present at mediation Party B: Dayal Sharma Solicitor: Carl Billigham The dispute George and Maria Papadopoulos live on a property adjoining The

Kookaburra Meditation and Yoga Retreat of which Guru Dayal Sharma is the manager. Now in retirement and expecting grandchildren, George and Maria undertake a major landscaping and pool construction project on their land for which they require access through the Retreat grounds for an extended period of time. The Retreat grants access upon payment of a $60 000 bond, which is to be returned with interest once the grounds are restored to their original condition. After completion of the work, the Papadopouloses request repayment of the bond. Guru Dayal Sharma returns $15 000 and retains the balance for kookaburra-friendly tree planting and drainage works required ‘to restore the grounds to their original peaceful condition’. The Papadopouloses write to the corporate owner of Kookaburra Retreats Australia, which confirms the manager’s decision. The Papadopouloses retain a lawyer who writes a letter of demand to the Retreat, which in response retains its own lawyer. The Papadopouloses begin bad-mouthing the Retreat publicly and seek support

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from the local Greek community and neighbours who have had their own problems with the Retreat in the past. The mediation George and Maria Papadopoulos contact a local mediation service, which obtains the Retreat’s agreement to participate in mediation on the proviso that their lawyer can be present. Comediators are appointed. The Papadopouloses elect not to have a legal adviser present at mediation.

Unrealistic Expectations

The trap 11.4 One of the themes of this book is that mediators are managers of client expectations (the M and E in MEdiation). The trap occurs where mediators fail to manage client expectations from the very beginning of a mediation process, or where a mediator inadvertently increases the unrealistic expectations of parties through word, action or omission. Clearly mediators are not responsible for all unrealistic expectations encountered in mediation, but there are some which they should manage — or at least not exacerbate. An unrealistic expectation can relate to the process of mediation (George and Maria Papadopoulos think, ‘The mediator will listen to our case and find in our favour’) and to the anticipated outcomes of the process (‘We’ll get back our $45 000 plus interest immediately’).

Avoidance strategies 11.5 Informing and educating parties is the best way to deal with unrealistic expectations. This can be done in relation to both the mediation process (‘George and Maria, mediation is not a miracle pill but it can assist to deal with this problem in a constructive way if you are both committed to settling …’) and to the problem itself (‘In my experience, George and Maria, claimants who have difficulty with their facts and evidence usually have to compromise to some extent in cases such as this …’). It will always be a matter of judgment as to when and how the informing and educating should take place. The sooner it occurs in relation to the process and nature of mediation the better. In relation to the outcome of a dispute, this will depend on when an expectation first comes to a mediator’s attention, how unrealistic it is, and the influence of professional advisers in creating it. This is illustrated below. Case illustration: The trap of unrealistic expectations In a personal injury mediation a young plaintiff injured in a motor vehicle accident had an expectation of receiving $825 000 in

damages. The ‘normal’ range for this kind of injury was $270 000$450 000 only. The unrealistic expectation had been generated by her barrister who was present in the mediation and persisted with the unfounded stance on quantum.

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In the negotiations the barrister operated in aggregate terms of damages on the basis of his ‘extensive experience’ and refused to justify and quantify specific heads of damages. During the separate sessions the mediator attempted to influence the barrister and there was some success, but the client whose expectations had been raised seemed committed to the barrister’s initial figures and was heavily reliant on them. There was no settlement despite the fact that the insurer was offering $445 000. With hindsight it would have been helpful for the mediator to have anticipated this problem, to have had prior contact with the barrister and to have acted as agent of reality on the issue of quantum. This would not necessarily have solved the problem but it would have been the appropriate route to take in attempting to change the client’s expectations.

Losing Impartiality The trap 11.6 There are many ways in which mediators can forfeit their impartiality or appearance of impartiality. It is important to recognise that partiality is as much a matter of perception as it is of observable behaviour, a factor which makes it more difficult for mediators to manage and control. Irrespective of the reason for it, loss of

impartiality can lead to the collapse of one or both parties’ trust and the failure of the mediation process. Some of the ways in which the perception of partiality can arise are through mediators: Not being even-handed in conducting the process (for example consistently giving more attention to Guru Dayal Sharma and his lawyer than to George and Maria Papadopoulos). Arguing with one of the parties and appearing to oppose their viewpoints. Acting as advocate for one of the parties and representing their arguments to the other, which can happen unwittingly with unrepresented parties like the Papadopouloses. Interrogating and cross-examining the parties, for example Guru Dayal Sharma over the nature of the remedial work required. Inappropriately disclosing their evaluation of and opinion on what a party is saying or their assessment of the merits of a case. The trap can also occur where mediators are not conscious of their own biases, which might be detected by one or both parties — mediators are not automatons and take their strong views into the mediation room with them.

Avoidance strategies 11.7 Some avoidance strategies that might be effective are: Mediators should be ‘eternally vigilant’ on the impartiality issue, particularly where they are experts in the subject-matter of a dispute, for example a barrister in personal injury mediations. [page 340] Mediators should be aware of their own biases where important value issues are at stake, for example allegations of environmental degradation or victimisation in the workplace, on which they may have strong personal views.

Mediators need to treat parties comparably, for example in summarising both the Papadopouloses’ and Guru Dayal Sharma’s opening statements and not only that of one party, or in devoting approximately the same time to each side in separate sessions. Mediators could invite parties to comment on any perceived deviation from their impartiality in either joint or separate sessions — ‘Now, Dayal, George and Maria, as indicated earlier I will be impartial here today but if any of you think that this is not the case, then please let me know’. Where there are co-mediators, as in the Kookaburra Retreat and Papadopoulos mediation, they could provide feedback on impartiality concerns to each other. As with all the other avoidance strategies, it is important for mediators to be aware of the interpersonal dynamics at play. Sometimes the loss of impartiality may be a result of a conscious or unconscious strategy by one party, as shown below.

Losing impartiality — the triangulation problem 11.8 Many mediating parties attempt to win mediators over to their side. They try to befriend their mediator in the hope that he or she will reciprocate and befriend them. Haynes (1983: 39) uses the term triangulation to refer to this phenomenon: Triangulation is an attempt by a negotiator to put the mediator in a position of supporting him or her. Every triangulation strategy is dangerous to the mediator. If the mediator responds in the terms the negotiator is looking for, the mediator will alienate the other negotiator. If the mediator tries to check the triangulator, the mediator is likely to alienate him or her. I usually use a reframing strategy to change the meaning or direction of the triangulation attempt.

Dominating the Process The trap 11.9 Survey studies have shown that one of the aspects of mediation

evaluated favourably by clients is the direct participation it allows them in the process of resolving their dispute and the control they experience in respect of the outcome of that process. These benefits are derived from a faithful adherence, to the extent that this is possible, to the different stages and elements of the mediation process. Mediators can fall into the trap of undermining these potential benefits by: Talking too often and for too long, and generally dominating the conversation. [page 341] Interrupting parties too much, particularly in the early stages of the process. Cross-examining parties and pointing out inconsistencies in what they have said. Not allowing parties to tell their own story in their own time and manner, thereby preventing important information from being disclosed. Using closed, leading and interrogatory questions to constrict parties’ contributions. Assuming a narrow notion of what is relevant in a mediation, for example by restricting discussion to matters covered by the pleadings.

Avoidance strategies 11.10 Here are some strategies that mediators might consider in order to avoid dominating the process: Using open and clarifying questions, particularly in the early stages of the process: ‘Dayal, how did you understand the original agreement and the responsibilities of each side?’ Practising active listening as a major ingredient in successful

mediation: ‘So, Maria, it sounds as though you were angered and stressed by the Kookaburra Retreat’s attitude?’ Inviting parties to indicate if they feel they are unable to speak their minds and are not being heard: ‘Now do you all feel you have had your say and been heard on the drainage question?’ Checking with parties in separate sessions about how they are experiencing the process: ‘Maria and George, how do you feel the negotiations are progressing for you?’ Using language and terminology that allows parties to understand and ‘own’ the mediation process and avoiding overly technical and arcane terms: see examples below.

Avoiding technical language 11.11 An indirect way of dominating the process is for mediators to use technical language or jargon that is not understood by one or more parties. This is tempting in cases where technical issues are in question, such as in medical negligence, building or technology disputes (‘intermittent claudication’ and ‘paroxysmal nocturnal dyspnoea’, or ‘RSJs’ and ‘costplus contract’, or ‘apps’ and ‘wikis’, ‘smartphone technology’ and ‘ISPs’ — simple and self-evident to insiders, mumbo-jumbo to outsiders). Likewise professional jargon (‘taking it on spec’ or ‘party and party costs’) or trade usage (‘an ambit claim’ or ‘a conjunctional sale’) is problematic when parties external to the relevant occupation or trade are present. Mediation has its own jargon, first instilled in initiates during their training courses. This is best left to seminars and learned papers unless it [page 342] can be easily explained for the uninitiated. Thus terms such as ‘caucus’ (for separate meeting), ‘conditional-linked bargaining’ and ‘reframing to interests’ should best be avoided — unless mediating between two mediators.

11.12 Mediator domination through use of this kind of terminology could lead to loss of face for a party where they have to make inquiries and a loss of understanding for them when they don’t. Rather than mediators being the cause of this problem, it is incumbent on them to resolve it when it arises through the technique of ‘mediator vulnerability’. Thus where, in the Kookaburra Retreat and Papadopoulos mediation, Carl Billigham uses a legal technical term that is not understood by the Papadopouloses, the mediator should ask for clarification on behalf of himself or herself so that George and Maria (and perhaps even Guru Dayal) can benefit from it without having to appear ignorant themselves.

Losing Control of the Process The trap 11.13 This is the converse of the previous trap. Mediators must provide a reasonable measure of structure and control for mediating parties. While they may share some control with their clients, for example over whether there should be an adjournment or whether advisers can be present, they should still retain ultimate control over the process, particularly on important procedural issues. Control is lost where mediators allow: Parties to break the ground rules consistently without the mediator attempting to intervene in any way — Dayal talks over George whenever he speaks. Professional advisers to subvert the process and revert to their accustomed ‘comfort zone’ of operation: see 11.15. A party to manipulate the process, for example by imposing unilateral time limits or causing disruptions, having multiple adjournments and the like — Maria insists on taking mobile phone calls to check on her pregnant daughter-in-law during the mediation. Unrepresentative outsiders to be present and to become involved in the mediation in a fashion that is not constructive for the progress

of negotiations — George invites a large group from the Greek community to come into the mediation room to support his case.

Avoidance strategies 11.14 As with the other avoidance strategies, sound common sense suggests that mediators should be attentive to the control factor from the earliest stages. This involves a balancing act between appropriate control, on one hand, and inappropriate authoritarianism, on the other. Accordingly each of the following strategies requires some basic judgment and diplomacy in its execution: [page 343] Prior education of parties about the importance of structure in effective dispute resolution: ‘Now, Dayal, Maria and George, it is important to deal with these issues in an orderly way and I can offer you that structure during mediation.’ Early assertion of a mediator’s authoritative role on questions of process: ‘Now you’ve all asked me to act as mediator for you so I would suggest that you follow the guidelines as regards speaking in order.’ Positive reinforcement of compliance with a mediator’s requests and directions: ‘Thank you for being patient and not interrupting, Dayal, while the Papadopouloses were speaking. Now would you like to give me your opening statement?’ Appropriate enforcement by a mediator of the mediation guidelines: ‘Now we did agree at the beginning that there should be no denigration of one another, which there has been, and I would like to suggest that you all recommit to that agreement.’ Using the separate meetings to reassert control and warn about the consequences of continued lack of orderliness: ‘Maria and George, you have had difficulty in listening to Dayal’s case and have interrupted him frequently. If this continues there is a possibility that he and Carl will walk out. Can we reduce the likelihood of a walk-

out which will be in no one’s interests?’ Securing renewed commitment to the guidelines where they have been consistently breached: ‘Now you have all had difficulty in keeping to the speaking guidelines, so I am going to restate them now and ask you to give your commitment to them for the next phase of mediation.’

The trap of allowing professional advisers to dominate the process 11.15 In some mediations professional advisers play an indispensable role in its success, and in others their involvement is highly problematic and leads to failure. Generally speaking advisers are a problem where their own interests diverge from those of their clients, and the former are allowed to surface and dominate in mediation. Some of those interests can be restated here: The professional interest of being seen to act as the zealous promoter of their client’s cause and not being called into question by the client. The reputational interest of being known as a tough negotiator. The competitive interest of needing to win and not showing weakness towards or making concessions to the other professionals present. The accountability interest of being able to render a flattering report to outside partners, supervisors and colleagues.

Avoiding professional adviser dominance 11.16 Dealing with professionals involves a further delicate balance for mediators: they cannot allow advisers and their interests to dominate, but if [page 344]

they deal with the problem undiplomatically advisers may become defensive and even more problematic. Thus the timing of interventions and who is present when they are made are important matters to consider. Some ways of avoiding this trap are: Prior education of professional advisers about their appropriate role in mediation. Making advisers signatories to a protocol of conduct for mediation: see Appendix 4 and 6C. Using adviser meetings to speak to advisers about the nature and consequences of their dominating behaviour.

Ignoring Emotions The trap 11.17 There is a danger in mediators ignoring the emotional factors which arise in mediation. It has been shown that most forms of mediation do not involve a therapeutic relationship between mediators and parties. Nevertheless the process allows for the expression, acknowledgment and validation of deeply felt emotions more than some other forms of dispute resolution. Where mediators attempt to force parties into a ‘cool, rational and objective’ discussion of their problems, there is a danger that the parties will not be ready or willing to move towards a settlement or that a settlement will come undone at a later stage. The complete disregard of emotions could also result in parties finding the process alienating and unsatisfying. 11.18 Conversely, mediators should avoid the trap of identifying with one side emotionally, for example with the weaker party or with one whom the ‘merits of the case’ seem to favour. Particularly where there are significant imbalances of power, mediators need to maintain an objective stance to avoid falling into this version of the trap.

Avoidance strategies 11.19 The standard mediation process is designed to prevent intense

emotional feelings from being disregarded and to deal with them in appropriate ways. More specifically mediators are able to: Facilitate wide-ranging communication by parties on matters of concern to them, whether or not they are within ‘the pleadings’: ‘Maria, tell us how the incident has affected you personally over the past six months.’ Encourage some ventilation of emotion in joint or separate sessions: ‘George, it sounds as though the treatment you experienced from Kookaburra Retreat made you feel frustrated and angry. Would you like to tell us about that?’ Acknowledge parties’ deeply held feelings: ‘So, Dayal, it sounds as though this has been a very stressful and damaging episode for you and the Kookaburra Retreat company.’ [page 345] Validate some implicit feelings: ‘It’s not unusual for parties in mediation to feel apprehensive about conceding too much to the other side.’ Mediators can anticipate the kinds of emotions that are likely to be present in a forthcoming mediation and plan ways of dealing with them. They should also be conscious of their own reactions to emotion and deal with these appropriately.

Moving to Solutions Too Quickly The trap 11.20 This book has emphasised the importance in dispute resolution of first defining disputes comprehensively in terms of underlying needs and interests before moving into possible solutions. This is because where mediators allow parties to move too quickly into solutions there is a danger that they will focus only on monetary or material factors

and ignore matters of procedural or emotional significance. There is also a danger that parties will move too quickly into incremental positional bargaining and fail to close the final gap, or that they will reach a settlement that does not exploit all potential value at the negotiation table. If mediators allow parties to move too quickly into solutions it also does not allow for convergent, as opposed to divergent, problemsolving thinking. Furthermore it tends to discourage disclosure of information that might be influential in reaching a settlement.

Avoidance strategies 11.21 Here are some factors that mediators might consider to avoid falling into the trap of allowing parties to move too quickly into solutions: Being transparent with parties about the advantages of discussing the general circumstances of a dispute before dealing with the money or other ‘hard’ solutions: ‘In my experience it would help to talk a little about how this incident arose and what effects it had on each of you in order to get a fuller perspective on the problem, before we discuss the question of money.’ Asking each party to explain how they approach the question of monetary figures before they actually make a dollar offer or counteroffer: ‘George, you’ve acknowledged that you should not receive the full bond back. Before you mention the figure you do want, explain to Dayal and Carl how you have gone about quantifying this amount.’ Seeking agreement on matters of principle before moving into the financial details: ‘Let’s see if there is agreement on the following matters before discussing the money: you’d all like to settle the matter today; Maria and George, you agree that you can’t recover the full amount you deposited with the Retreat, and Dayal and Carl, you agree that you need to itemise the expenses you have incurred in restoring the grounds. Are we all agreed in principle on those matters?’

[page 346] Coaching parties in separate sessions on how to package deals so that money is not the only point of focus: ‘George and Maria, you are about to ask for some money, but perhaps you could first tell Dayal, as you’ve just told me, that you are prepared to stop badmouthing the Retreat, to stop any further agitation by the neighbours, and to consider this dispute settled once and for all. This initial package may make them more receptive to your monetary figure.’

Case illustration: Delaying the money moves In the mediation presented in Chapter 1, New Company (NC) alleged that Experienced Consultancy Services (ECS) were negligent in providing advice in relation to NC’s insurance cover and the settlement of its insurance claim. ECS denied liability but was prepared to offer a small monetary amount in order to reach a financial settlement. NC had some legal and evidential difficulties on the liability question and had financial pressures that demanded a commercial settlement. In order to keep the parties from moving too quickly into figures, the mediator requested ECS’s lawyer to explain how they were approaching the monetary settlement, which he did in terms of risk assessment and costs recovery. NC was asked to respond along the same lines, and although this highlighted substantial differences in approach between the two sides it did provide a useful point of reference when they bargained over the money. The monetary negotiations were successful, despite the fact that NC accepted only half of what it claimed it had lost. Had there not been the ‘philosophical initiation’, the deal on the money may have been difficult to attain.

Pushing the Parties

The trap 11.22 This trap involves mediators expressing judgments and personal views on what is important for resolving a dispute, or on how it should be resolved, and otherwise pursuing their own agenda in mediation. It includes the situation in which parties have provided their own list of issues and a mediator insists that the mediation should also deal with other matters that they themselves have not raised (‘You cannot finalise these kinds of neighbour disputes without discussing how to deal with such problems in the future’). Likewise a mediator might insist that a particular issue, for example the question of interest to be paid or the drafting of a confidentiality undertaking, be dealt with in accordance with his or her preferred approach to the matter. 11.23 There are several reasons why there is a trap in pushing parties to a mediator’s preferred approach or outcome: Mediators tend to view disputes from an objective ‘rights-based’ perspective and not from the subjective ‘interests-based’ perspectives of parties. [page 347] Mediators may only have a restricted knowledge of the facts, the law and other relevant factors and may therefore push towards an ‘inappropriate’ outcome. At least one party may become more intransigent where a mediator’s view appears to favour them. At least one party may lose trust in a mediator if they would not stand to benefit from the expressed view. Mediators may base their view, in part, on information disclosed during confidential separate sessions. It may confuse clients who did not expect such interventions from a mediator, and it may result in confusion in the marketplace over the nature of mediation. Mediators may breach an applicable code of conduct or ethical

standard and be subject to disciplinary proceedings or be sued for negligence. Mediators may no longer be ‘mediating’ and may thereby lose statutory immunity. 11.24 This trap is particularly problematic where both parties request a mediator to provide an opinion or make a recommendation. While the expressed consent will obviate some of the problems referred to above, it might create difficulties of its own. Thus in asking a mediator to express a view one party, or conceivably both parties, may be influenced by what they perceived to be the mediator’s support for them in a separate session. If this is the case, they will be at least surprised and possibly disappointed about the actual opinion expressed or recommendation made by the mediator.

Avoidance strategies 11.25 It is more difficult for some categories of mediators to avoid the ‘pushing the parties’ trap than it is for others. Mediators with high levels of expertise in the subject-matter of a dispute will be more likely to push their ‘voice of experience’ than those selected because of their skills in the process of mediation. Regardless of these variables, the following strategies will minimise the worst dangers of this trap: Defining from the earliest stages of mediation the nature of a mediator’s role, and reinforcing this definition in the minds of parties wherever necessary: ‘I am not here to make any decisions for you or to advise you on the law or to recommend outcomes for you. I am here to assist you in other ways …’. Deflecting requests for advice or opinions in terms of the stated mediator role: ‘You’ve asked my advice on what are reasonable deductions from the bond but, as I’ve indicated, that is not my role. What ideas do you have on that issue?’ Identifying the concerns or interests underlying requests for this kind of mediator intervention and attempting to address those motivating

[page 348] factors: ‘Now, Maria and George, from what you’ve just asked you seem to be uncertain about your legal rights. Does this mean you’d like to consider ways of dealing with that uncertainty?’ Avoiding the seductive nature of the power conferred by shuttle mediation: see 11.26.

Distorting parties’ views during shuttle mediation 11.26 It has been indicated already in the book that mediators acquire immense potential power during shuttle mediation by virtue of their control over the communications between parties. This power can be used to push unsuspecting parties to a mediator’s preferred outcome. As the convening and conduct of shuttle mediation is largely within a mediator’s control, the abuse of this power is a trap that mediators can avoid by: Delaying the holding of separate meetings until discussions are advanced, and avoiding lapsing into shuttle through default rather than by design. Checking with parties what is and what is not to be conveyed back and forth between them. Reducing parties’ offers to writing before conveying them to the other side. Bringing parties back together if the reasons for adopting shuttle no longer exist. Continually reflecting on how they are performing their shuttle role, and where possible conferring with their co-mediator on this point.

Assuming a Differing Professional Role The trap

11.27 All occupations and professional practices have boundary problems between what they can legitimately do and what is in the province of others. There is a difficult boundary problem in mediation where mediators may feel required to play the role of adviser, advocate, counsellor or lawyer. This is a particular problem where only one party has professional advice or other skilled assistance in a mediation, although the trap could still be present where both parties are professionally advised. As usual there are semantic issues in relation to the differences between the legitimate functions of mediators and those of lawyers, counsellors and other professionals. It is nevertheless possible to envisage some functions that would fall outside the spectrum of mediators’ roles. Thus some mediators might be inclined to advise George and Maria legally about their position and in other situations they might attempt to counsel a grieving party. Mediators are more likely to be drawn into playing the role of the absent professional in the separate sessions. 11.28 There are many problems associated with the transgression of professional boundaries. Essentially they revolve around what parties expect, [page 349] and can legitimately expect, when they come to mediation. Despite the contention over the exact contours of a mediator’s role, there are clear transgressions that should not occur. Thus in the Kookaburra Retreat and Papadopoulos mediation, the co-mediators should not counsel the claimants over their loss and grief, or advise them on their legal position, or calculate the legitimate deductions that could be made by the Retreat. Such interventions could create confusion among clients, loss of trust in mediation and subsequent problems for mediators.

Avoidance strategies 11.29 Some avoidance strategies that might be useful for mediators

are: Providing as clear a definition as possible of the mediator’s role before mediation, in the Agreement to Mediate and during the mediator’s opening statement (MOS): ‘Our role today is not to give you legal advice, to act as therapists or counsellors, or to assess and quantify the alleged damages …’. Discussing in separate meetings the implications of not having professional advisers present: ‘Now, George and Maria, you have decided not to have advisers here and I cannot give you legal advice. How is that affecting your participation in the mediation?’ Exploring options for the obtaining of professional advice when parties are not represented: ‘Now it seems clear that you need to be advised on the liability question. How can we modify the mediation process to make that possible for you?’ Pointing out the difficulties and possible negative consequences for parties of mediators transgressing professional boundaries: ‘The problem with my giving you a view on the deductions that could be made from the bond is that it may be seen to affect my ability to be neutral and impartial and could result in any agreement you reach here today being challenged.’

Being Unprepared The trap 11.30 Implicit in many of the above traps is a lack of preparation by mediators. Being unprepared is also a trap of its own. Mediators need to be prepared on the specific features of the case in which they are involved, including the nature of a dispute, possible causes of conflict, potential mediator interventions and ways of dealing with predictable problems. They also need to be prepared in a more generalised way in relation to theories of conflict, negotiation dynamics, communication requirements, dealing with impasses and emotions, and on other skills and techniques required in mediation. Where mediators receive no prior knowledge of a case, there will be no occasion for specific

preparation and only generalised preparation is [page 350] possible. Being unprepared in either sense is one of the most preventable of mediator-generated problems.

Avoidance strategies 11.31 The main avoidance strategy to being unprepared is an obvious truism: prepare. Throughout this book there are indications of how mediators should prepare for their task and the areas in which they should be prepared. Where circumstances and resources allow, specific preparation can be done before a mediation commences, for example by obtaining necessary information and having appropriate contact with parties. Where circumstances and resources do not allow for systematic prior preparation, a snatched conversation in the corridor with parties and advisers will have to suffice for an impending mediation. In all situations mediators can improve their generalised preparation, for example by revising their understanding of basic frameworks of conflict and negotiation, with particular reference to the predictable problems that can occur. This should be an ongoing process: systematic reflection on yesterday’s mediation constitutes a form of preparation for that of tomorrow.

Allowing Agreements to be Left Undocumented The trap 11.32 It is now common practice for Agreements to Mediate to stipulate that no decisions made in mediation will be final and binding until reduced to writing and signed. Whether this condition applies or not, the problem of leaving agreements hanging in the air can still

arise where parties feel drained and exhausted and would rather go home than write up their terms of settlement. The trap results in parties either forgetting what they have agreed upon or returning to adversarial combat the next day despite having reached agreement. In either case the efforts of the mediation participants could be rendered futile.

Avoidance strategies 11.33 Mediators can avoid the trap of leaving agreements undocumented by: Reinforcing throughout mediation the requirement that agreements be reduced to writing in order to make them binding: ‘Dayal, George and Maria, we have agreed on what additional work is required on the Retreat grounds and that will be binding once we have reduced it to writing.’ Maintaining lists of matters agreed on by parties to assist them in the drafting process. Recommending abbreviated memoranda of understanding or heads of agreement for later redrafting into a fuller agreement. Working off standard form agreements or using modern technology such as laptop computers and iPads to shorten the required drafting time. [page 351] Allowing parties time out from a mediation while professional advisers or mediators undertake the drafting exercise.

Ignoring External Parties The trap

11.34 Reference has been made to the problems of ‘external ratifiers’ whose formal approval is required for any mediation agreement and of ‘absent parties’ who, although not directly involved in a mediation, could destabilise any agreement after the event. While it may be opportune in terms of reaching agreement in the short term to ignore these persons, failure to take account of them can result in the longterm viability of mediated agreements being jeopardised. This is one of the predictable potential problems in any mediation that mediators can take steps to prevent.

Avoidance strategies 11.35 The following avoidance strategies may be successful: Before commencement of mediation, checking with parties about the existence of stakeholders whose approval is, formally or informally, a required factor for success: ‘Dayal, what sort of formal and informal ratification within the business will you require for any mediated agreement?’ Keeping a note of any reference by parties to significant external individuals or bodies and referring to them at appropriate times: ‘George, you have referred several times to the neighbouring McFarlanes — what will their interests be in the mediated outcome?’ Checking with parties in separate meetings whether there are any ratifiers or absent parties who have not yet been identified: ‘Maria, are there any other people who will be insistent on knowing from you or George how this matter settled, and will that cause you any problems?’ Emphasising to parties that the existence of a ratifier or absent party is a problem which both of them need to address: ‘Maria and George, you have heard Dayal say that he requires board approval for this agreement, and I think it would be helpful if we all discussed that requirement.’ Developing options with parties for dealing with the ratification issue, including the possibility of mediator involvement: ‘Now what are the options for persuading the board to endorse this agreement

and would my services be useful in this regard?’

Mediator Learnings 11.36 This chapter raises the following learnings for mediators: 1. Mediators can be responsible for a number of self-induced traps and these can be prevented, avoided or minimised through preparation, planning and more preparation. [page 352] 2. Many of the traps are a result of mediators’ own interests in mediated settlements and in a reputation for settling disputes through mediation; they cause short-term expedient thinking that is not to the long-term benefit of parties. 3. Avoidance of the traps entails specific preparation in the light of the particular circumstances of individual mediations; it also entails generic preparation through education and training, reflecting on experience and reading skills books.

Tasks for New Mediators 11.37 Select an area with which you have some familiarity or expertise, for example studying law, working in a fast food outlet, playing a particular sport or practising as a professional. Draw up a list of some of the traps that, through experience, you have learned to avoid in this area of activity. What do you think might be some of the counterpart traps for mediators? 11.38 Write a short guide for professional advisers who will participate in mediations that you conduct. In your guide, define their roles, the preferred approach to their tasks, their rights and responsibilities, and the attitudes and demeanours expected of them. Ask a lawyer you know to comment on the guide. 11.39 Prepare a set of lists, tables or mind-maps that set out important

features, principles and intervention techniques relating to conflict resolution through negotiation and mediation. Make these into manageable and accessible cards for use as general preparation while you are on trains, planes or cranes as memory aids for your mediation practice.

[page 353]

CHAPTER 12

Developing a Practice and Practising Mediation Introduction Developing Mediator Credentials Infrastructure and Resources Marketing Mediation Securing Referrals Standards and Ethics Growth Options for Mediation Services Other Practice Matters Conclusion Mediator Learnings Tasks for New Mediators

Introduction 12.1 Do not read this chapter first. Few mediators in private practice, whether dependent on work directly from consumers, on referrals from professionals or on appointment by service-providers, would complain about an increase in demand for their services. Historically mediation in Australia has been a supply-driven service and there is considerably greater availability of mediators than there is demand for their services. One of the paradoxes about mediation is that while it is ‘such a good thing’ for the right clients and the appropriate disputes, there is relatively limited spontaneous demand from paying clients for mediation

services. For [page 354] a range of reasons the need for mediation does not translate into a demand for the service. It is probably fair to say that mediation is only flourishing where it is connected to agencies, tribunals or courts, where it is mandatory or strongly encouraged, or where it is provided on a subsidised basis or at little cost to users. In these situations highly pressured employee mediators and conciliators certainly would complain about an increase in their workload. 12.2 This chapter deals with ways of establishing a mediation practice and with some of the issues involved in practising mediation. There are no clear career paths for mediators, and no guaranteed methods for prospective mediators to secure work (just as there are no guarantees for existing practitioners). An investment has to be made, but the nature, size and timing of returns on the investment are uncertain.

Developing Mediator Credentials 12.3 As indicated earlier (see 1.6) there are three elements in the development of any new occupational practice, whether it be counselling, preaching or mediating: knowledge about the particular activity, development of skills and techniques in the relevant areas, and attitudes as reflected in standards and ethical requirements. The NMAS Practice Standards reflect these three elements. There are different ways in which the elements can be developed by those interested in embarking on a mediation career.

Training 12.4 Many universities and dispute resolution service-providers conduct introductory or basic mediation training workshops. Some also provide intermediate or advanced training, or specialist training

(for example in commercial mediation, building mediation or family mediation). The basic courses range in duration from three days to the equivalent of 10 days. The main focus in training courses is on the mediation process, on the skills and techniques associated with the system and on the requirements of the NMAS, with limited attention to dispute resolution theory. In the case of family mediation, the Family Law (Family Dispute Resolution Practitioners) Regulations 2008 set out very specific training requirements: see discussion on accreditation below. In courses geared to NMAS accreditation there is assessment of skills competency, while in others attendance certificates are provided to participants. Continuing, in-service and audit training is available for practising mediators, and is required by some service-providers, codes of mediator conduct and other standards, including the NMAS Approval Standards (s 6).

Academic qualifications 12.5 Several tertiary institutions now provide academic qualifications in the disciplines of mediation, dispute resolution and conflict management. These comprise diplomas offered at a postgraduate level of study and Masters [page 355] degrees with mediation and dispute resolution as substantial components, for example the LLM (Dispute Resolution) degree. There are also dedicated postgraduate degrees such as an MDR (Masters in Dispute Resolution). Typically a Masters degree by coursework would require a student to complete six or eight individual subjects, and a mini-dissertation might also be required. These components are assessed through assignment or examination, and occasionally some assessment is also based on performance and competency. There are no undergraduate degrees in mediation or dispute resolution, but many programs allow for individual elective subjects in these areas.

Accreditation 12.6 Generally the term ‘accreditation’ refers to the formal recognition of qualifications and experience as a basis for entitlement to practise in a professional or occupational field. In contemporary Australia accreditation is not necessary for mediation practice and untrained or unqualified individuals can hang out their shingles in the hope of attracting clients. However, many courts, government agencies, community organisations and private service-providers now require mediators they engage to be accredited. 12.7 As explained in Chapter 1, the NMAS is a national industrybased accreditation system that is voluntary in the sense that there is no legal compulsion for prospective mediators to comply with its provisions. The NMAS comprises both Approval Standards and Practice Standards and these are managed by the Mediator Standards Board: see . The Approval Standards prescribe requirements for those who wish to be recognised as a nationally accredited mediator: see Table 12.1. Reference to the Practice Standards has been made throughout this book. The NMAS has considerable support from the mediation community, including dispute resolution organisations and the National ADR Advisory Council (NADRAC), as well as from major users and referrers of mediation such as courts, law societies, and government departments. Many organisations use the NMAS Approval Standards as a basic standard and continue to have their own systems of ‘accreditation’, with differing requirements for intending practitioners over and above those of the NMAS. For example law societies and other professional bodies that require prospective mediators to meet the NMAS standards are likely to also require mediators to be members of the respective profession and have a minimum number of years of professional experience. Finally some organisations continue with their own standards without any reference to the NMAS. Thus despite the prominence of the NMAS there is currently no comprehensive national system of general mediator accreditation in Australia. In relation to family mediation, the Family Law Regulations provide

the only national legislatively based system of accreditation, although there are no investigative, hearing and enforcement procedures to support the system. The Regulations set out extensive requirements for family dispute resolution practitioners (FDRPs) which are more extensive than the NMAS standards in terms of substantive content and duration of training. [page 356]

Developing experience 12.8 A major challenge for prospective mediators is that of obtaining practical experience, either after education and training or

concurrently with it. Training, qualifications and accreditation, even to the NMAS standard, do not in themselves guarantee a person will develop practical experience. They are necessary but not sufficient conditions for developing a practice. [page 357] The difficulty is caused by the limited societal demand for mediator services referred to above, the restricted number of programs providing opportunities for experience, the large number of prospective mediators in search of mediating practice and the monopolisation of practice opportunities in some areas such as legal mediations dominated by a few senior lawyers and retired judges.

Experience as a volunteer 12.9 In some countries there is a queue of beginner mediators wishing to undertake unpaid work in voluntary mediation services provided by community organisations. The authors’ first mediations were conducted in volunteer services of this sort. Some professional associations have pro bono mediation schemes for those wishing to develop experience as volunteer mediators.

Experience in community-type services 12.10 There is some assurance of developing experience in programs such as those provided by Relationships Australia, the Family Relationship Centres and various community justice programs throughout Australia that have panels of remunerated mediators. In keeping with past practice some agencies only allow those who have undertaken their specific education and training courses to participate in their programs. However, there is now more mutual recognition of training and accreditation systems as a result of the NMAS.

Experience through co-mediation 12.11 A good way of developing experience is as co-mediator together with an experienced mediator in ‘apprenticeship’ or ‘mentoring’ arrangements. This is easier to achieve through agency programs than through approaches to private mediators, although mediators with some experience may have more success approaching experienced private mediators than those with no experience at all: see 12.25 on mentoring relationships as the basis for business models.

Experience through observation and simulation 12.12 Some mediators may, subject to their clients’ consent, permit you to observe them in practice and while this is not a substitute for direct experience it does provide familiarity with the process, skills and techniques you will be using. Experience in simulated mediations is also useful, provided volunteers can be found to role-play the clients, but there are inevitable shortcomings in the fact that it is not the ‘real thing’.

Experience through tribunal panels 12.13 Beginner mediators can apply for appointment to the mediator panels used by various agencies, such as civil and administrative tribunals, [page 358] residential or commercial leasing authorities and legal aid commissions. While these bodies have differing criteria for appointment, all require skills training and some also require relevant

industry experience and accreditation according to the NMAS. Membership of these panels normally leads to at least some mediation experience, though actual referrals may be limited and sporadic. They generally pay in the range of $50-$200 per hour for the services of sessional mediators on their panels. Reflective practice 12.14 Where new mediators are able to gain practical experience they are advised to follow the principles of reflective practice in order to develop their skills and expertise: see Chapter 1. This involves learning from experience through self-debriefing, maintaining a mediation diary, mutual debriefing with a co-mediator, or supervisory debriefing with an experienced external mediator. Other ways of developing the benefits of reflective practice are to undertake followup surveys of those who have attended mediations, including both clients and professional advisers. These ‘audit’ activities constitute an ‘objective’ appraisal of what mediators are doing well and could be doing differently, as well as providing subjective evaluations of effectiveness and satisfaction from clients and advisers. In all cases it is advisable to focus on qualitative as well as quantitative indicators of effectiveness. Appendix 7 contains debriefing forms for mediators themselves and for the parties and their lawyers. On reflective practice see also Brandon and Robertson (2006: 226-40).

Life-long learning 12.15 Mediators are always developing their craft, fine-tuning their skills and refining their style. Reflective practice, discussed above, is an important tool for continuing professional improvement. Similarly ongoing education and interaction with peers should be more than a formality required by accreditation schemes. Krivis and Lucks (2006: 217) write: Continuing education is a lifelong affair. You can learn from reading and writing, taking a class or teaching a class, listening to other mediators talk about their experiences and exchanging your own views.

Mentoring is a two-way street: mediators should think about seeking out a mentor and also offering themselves as mentors to others. Finally mediators are encouraged to seek out learning opportunities at the edges of mediation and beyond. There are many benefits to learning from different professional disciplines and different mediation jurisdictions.

Developing mediation experience informally 12.16 Where there are limited options for gaining experience in formal mediations, it is still possible to do so informally. In many situations outside formal mediations there will be opportunities to apply some parts of the [page 359] mediation process and many of the skills and techniques. Here are some of the many areas in which this is possible: In chairing meetings of business partnerships, voluntary associations and clubs. In holding planning meetings for partners and associates. In conducting hearings in disciplinary tribunals. In teaching and tutoring in small group seminars. In managing employment grievances, handling customer complaints and conducting workplace investigations. In dealing with aggrieved shareholders or other passionate and committed people. In dealing with crowds in emergency or crisis situations. In managing family meetings. In engaging in parent-teacher interviews. There are, however, also limits — the techniques of mediation are not suitable for dealing with adolescent children and household pets, and experience is unlikely to be developed in these departments.

Networking 12.17 Prospective mediators can also develop their awareness and understanding of the process by engaging in networking activities. This could involve becoming members of mediation associations, attending and speaking at dispute resolution conferences, joining mediation interest groups, making contacts on the internet via platforms such as Facebook or LinkedIn, and contributing to discussion forums, developing web pages or blogs, writing for the local free press, and speaking to voluntary associations and service organisations. Some of these activities overlap with the recommended marketing initiatives, referred to later in the chapter.

Infrastructure and Resources 12.18 At the same time that prospective mediators are establishing their credentials, they need to develop, obtain or acquire access to resources, as outlined below.

Business planning 12.19 As with any other business endeavour, a business plan is a useful starting point for mediators. The plan can usefully cover: areas of qualification, expertise and specialisation; detail of services to be provided; how the services will be provided; [page 360] service delivery requirements, in terms of premises, information technology, insurance, resources, and so on; target ‘client’ groups and subject-matter areas; finance plan and budgeting issues; SWOT analysis (strengths, weaknesses, opportunities and threats).

Premises and equipment 12.20 While King Arthur (if he existed) did not attend mediation training, his round table (if that existed) was inspired by principles of equality and proximity for all knights, including himself. This precedent can be followed by modern mediators of more modest means. They require access to a meeting room to house the round or postmodernshaped mediation table, and to one or more additional rooms for separate sessions. Other appropriate amenities include whiteboards or flip charts, internet, projection and communication facilities, refreshments and comfort stations, and the other necessities of modern life. While it is expensive to have dedicated premises, mediators can explore various hired premises that have appropriate facilities. The authors have used meeting rooms in yacht and golf clubs and community halls for their tranquil, accessible and relatively inexpensive facilities. Many mediators are fast developing the ability to work anywhere and adjust locations to suit clients’ needs. This approach to accessing mediation space requires financial investment only in so far as mediators wish to bring their own laptops, flip charts or other pieces of equipment with them. In addition geographically challenged mediators invest in GPS systems.

Resource development 12.21 Mediators need to develop their own resources. Many of these have been referred to in discussing the mediation process and mediators’ functions in earlier parts of the book. Thus they require mediation information brochures and fact sheets, booklets, standard form letters, DVDs or video clips which demonstrate the process in action, access to interpreters and relevant government authorities, and some of the documentation referred to in the following paragraph. They might also maintain references from satisfied clients and collated client satisfaction surveys for marketing purposes and for responding to prospective clients. 12.22 Some lawyer mediators operating from large law firms have developed ‘client libraries’ for the use of mediating parties. These

should be housed in dedicated rooms and provide brochures, books, DVDs and related resources through which clients can inform and educate themselves about mediation. Essentially the client library is a resource and educational centre and it also serves as a marketing tool for prospective clients: see . [page 361]

Documentation 12.23 Prospective mediators documentation. This includes:

require

a

range

of

standard

Fact sheets, brochures and FAQs with information on the nature and benefits of mediation for dispatch to those inquiring about mediation services: see Appendix 2. A standard Agreement to Mediate and Costs Agreement: see Appendix 4. Rules for the conduct of mediation: see, for example, those of the Institute of Arbitrators and Mediators of Australia and LEADR and, where applicable, copies of the NMAS Practice Standards: see Appendix 6B. Protocols of behaviour for lawyers and other professional advisers: see, for example, the Law Council of Australia’s Guidelines for Lawyers in Mediation, Appendix 6C. Confidentiality undertakings for witnesses and others not signatories to the Agreement to Mediate: see Appendix 4C. Standardised settlement agreements in electronic form on laptop computers which can be individualised for specific mediated settlements. In mediations subject to the national Family Dispute Resolution scheme, the documentation required there: see reg 28 of the Family Law (Family Dispute Resolution Practitioners) Regulations which requires FDRPs to provide, among other things: — information on family dispute resolution;

— information on services that assist reconciliation; — specific information in cases involving family violence or child abuse; — information about parenting plans. Information relating to complaints channels: see, for example, the NMAS Approval Standards s 3(5) and the discussion on complaints against mediators at 12.59 below. The information can also be sent in hard copy or electronic form to individuals and institutions which might make referrals to mediators, with the objective that they be kept on file or displayed in reception rooms. Alternatively, the information can be made available on websites. Other forms of documentation can be retained by mediators for use when needed.

Referral network 12.24 At times mediators make referrals of their own clients to lawyers, counsellors or other skilled helpers and a referral network should be developed for this purpose. Likewise a list of government agencies, such as legal aid commissions, child support agencies and welfare bodies, is also useful to have at hand for clients in need of their respective services. It may also be necessary to refer a matter to a public sector mediation service, such as a community justice centre, residential tenancy agency or the Office of Franchise Mediation [page 362] Advisor, for reasons of cost or required expertise. Needless to say, referral networks can operate reciprocally and those to whom mediators make referrals may become sources of referrals as well: see 12.48-12.53.

Business model

12.25 Every business model has its advantages and disadvantages and it is important for mediators to choose a model that suits their personal style and practice circumstances. Many mediators practise through a business entity providing other professional services, such as a law partnership or accountancy firm. They can also practise in sole proprietorships or in partnerships with other mediators. Some experienced mediators find it makes business sense to work together with a less experienced mediator. In this arrangement the senior mediator trains, coaches and mentors the others and refers work to them in areas the more experienced mediator has outgrown or just does not have time to do. This business model brings financial rewards and retains clients who may have gone elsewhere. It also has the broader advantage of introducing the next generation of mediators to practice: see Krivis and Lucks (2006: 12218). With the trend towards multidisciplinary partnerships, mediators could also combine with lawyers, accountants or social workers, where professional regulations allow. In order to limit individual legal liability, mediators could also, singly or collectively, incorporate as a private company.

Marketing Mediation 12.26 Marketing involves the education of the public and potential consumers as to the nature and form of mediation being provided in order to increase demand for the service. There is some generic marketing of mediation, by governments, courts and agencies, which portrays it to the public as an appropriate and attractive form of dispute resolution. This generic publicity provides a foundation for the marketing of specific mediation services.

Are you getting enough? 12.27 In his article ‘Are you getting enough? Marketing mediation’ (1999) Tom Altobelli refers to the following four stages in the product life cycle: Stage 1 — Introduction.

Stage 2 — Growth. Stage 3 — Maturity. Stage 4 — Decline. In terms of these categories, mediation has passed its introductory stage and has shown significant growth, to the extent that it is becoming a [page 363] mature practice. Altobelli also refers to a different product life cycle from the perspective of mediation consumers: Stage 1 — Awareness. Stage 2 — Interest. Stage 3 — Evaluation. Stage 4 — Trial. Stage 5 — Adoption. Many potential mediation consumers have moved through the awareness and interest stages and into evaluation and trial. However, it would have to be admitted that the adoption phase is not strongly evident in Australia, the ‘need’ for mediation not always being translated into a ‘demand’ for the service. Altobelli advocates ‘educating the consumer’ as the basis of any marketing plan for increasing mediation demand.

Mediation as a product 12.28 Mediation’s classification as a product has a bearing on marketing strategies. The system is self-evidently a service as opposed to goods, in the sense that it is intangible and cannot be owned and transferred. This creates different market realities for mediation in comparison with tangible goods such as cars, cat food or rydgets. The differences are depicted in the following table by Zeithaml and Bitner (2003: 20).

[page 364]

From this table we note that mediation is a perishable product, such as advocacy and electricity, which cannot be stored for use when demand increases, and no two mediators offer identical services, given the significance of the identity, personality and style of each mediator in the delivery of mediation services. 12.29 These features of services have implications for mediation marketing. Consistency of service quality is a problem for all private mediators in that horror stories about one mediator could have market repercussions for others. Likewise it is not easy to achieve significant economies of scale through centralisation, as it is with goods such

shoes, olive oil or chopsticks, which means that mediation has to be marketed on a relatively decentralised basis. However, ideas and concepts can be and regularly are marketed, as is done by political parties, NGOs and governments. The same can be done with mediation.

The marketing mix for mediation 12.30 The concept of marketing is understood here as comprising ‘individual and organisational activities that facilitate and expedite satisfying exchange relationships in a dynamic environment through the creation, distribution, promotion and pricing of goods, services and ideas’: see Pride and Ferell (2003: 4). The concept of the ‘marketing mix’ has been a basic notion in marketing for many decades. It is popularised in terms of the ‘four Ps’, namely product, price, promotion and place (or distribution). 12.31 Product refers to the service which mediators provide in responding to clients’ needs. While mediators provide an intangible service, the product can be referred to tangibly in terms of the value it can add for the target market. Lenski (2009: 63) suggests that mediators reframe their role in terms of how they can be of service to potential clients. For example instead of saying, ‘I’m a mediator’, the following frame provides more information for potential users of a commercial mediation service: ‘I help businesses to work [page 365] through their disputes in a way that strengthens business potential rather than damaging it. I do this as a mediator, coaching people to prepare for difficult negotiations and facilitating problem-solving sessions.’ Mediators are encouraged to develop their personal frame or reframe that says something about what they can help people achieve through mediation. The product of mediation has unique claims in relation to client involvement, creative outcomes, cost and time effectiveness, and its

other well-known attributes. The product needs to be portrayed in terms of its distinctive characteristics and abilities to address clients’ needs, and to be distinguished from its competitor services such as litigation, arbitration, counselling and self-help. 12.32 Price places a figure on the value which mediators add. The factors which go into pricing include the cost of production and the value that clients are prepared to pay for the service. Discount pricing may be used to stimulate short-term referrals but cannot be a longterm proposition; most mediators in private practice are there to earn a living and not for charitable purposes. Many successful private practitioners adopt the view that setting fees too low devalues their work. At the same time setting unrealistically high fees will not attract a sustainable clientele. Krivis and Lucks (2006) suggest that it is important for mediators to assess their target market realistically and to put a value on their professional worth within that market segment. In addition it is important to stick to a fairly consistent fee scale so as not to confuse the marketplace. Remuneration is normally based on an hourly or daily fee for preparation and mediation time and reasonable expenses incurred, with some provision for sliding scales to take into account clients’ abilities to pay. Market mechanisms tend to sort out pricing structures for private mediators, though full-time mediators attached to courts and agencies are salaried employees whose remuneration is less directly market-related. Most private mediators charge as much as the market will bear. In Australia they earn between $50 an hour and $12 000 a day. In most cases parties share equally the costs of mediation, including the fees. Excess supply of mediation services over demand, and the availability of inexpensive public sector mediation, puts downward pressure on fees some private mediators can charge. 12.33 Promotion consists of personal marketing, publicity and advertising. Where the product has unique qualities it does its own promotion. Mediators gain publicity through involvement in conferences, professional seminars, webinars, presentations to community groups, media exposure, blogging and educational activities. As mediation is largely unregulated, marketing can take place through all forms of media. Advertising can be conducted

through everything from hard copy Yellow Pages to online tools such as websites and social networks. 12.34 Place refers to distribution, which in the case of a service such as mediation highlights the factor of accessibility rather than physical location. While many professions have traditionally sat behind halfclosed doors [page 366] waiting for clients to arrive, this is now changing and we are entering an age where professionals are going to their clients. Mediation does not require a special setting, so the ‘Have System, Will Travel’ philosophy can apply. Smartphones, laptop computers and internet facilities render physical location less important than it would otherwise be and mediators can conduct business from any manner of premises, and even online: see 9.42. Crisis intervention mediation, in particular, requires the process to be conducted on the factory floor, the airport control room or other relevant venue. 12.35 In marketing terms what is required is a matching process, that is a strategic and managerial process of ensuring that the marketing mix is appropriate for the circumstances. For services, however, the four Ps marketing mix was found to be incomplete (Gummesson, 2010: 408) as it was based on mass manufacturing and standardised consumer goods. To overcome the limitations, the four Ps were expanded into the seven Ps by adding participants (or people), physical evidence (later referred to as servicescape), and processes. Subsequently a relational paradigm emerged as an alternative to the marketing mix, focusing on relationships, networks and interaction. Relationship marketing emphasises a long-term interactive relationship between service-provider and customer, acknowledging that both customer and seller are active parties. Consumers and suppliers should be treated as equal partners, albeit with different objectives, and both should find reward in the relationship. In relation to e-marketing, which could have increasing relevance to mediation, the four Ps change to:permission,privacy,profiling and

personalisation: Monger (2007: 497-8). Further marketing Ps can be expected in mediation’s evolution.

Other marketing factors Market forces 12.36 Important considerations in mediation marketing are the external market forces which provide both opportunities and threats for private providers. Market forces comprise factors such as relevant regulatory frameworks, economic realities, the extent of competition and substitute products, trends and activities in rival professions and services, and consumer behaviour. Apart from family law mediators, there is relatively little direct regulation of private mediators in Australia. There is, however, some indirect regulation through mediators’ other professional associations, for example those of social workers and lawyers, and also through the NMAS for those electing to be recognised as nationally accredited mediators under its terms. The lack of direct and compulsory regulation entails that ‘rival’ professions can move into mediation markets with institutional backing and support from their professional associations. Mediation is professionalising during a time of considerable flux in traditional professions, involving harsh competition, blurring of boundaries, consumer activism and the globalisation of firms. This creates more complex and demanding market forces than in earlier and gentler times. [page 367]

Market segmentation 12.37 Market segmentation refers to the division of a market into segments according to client needs. For example the market for

mediation could initially be divided into two broad areas: the dispute resolution area, on one hand, and the broader conflict management and dispute systems design area, on the other. The needs of potential clients are different in the two areas. Further segmentation of the dispute resolution area can occur in terms of substantive areas of dispute, such as workplace, building, investment or environmental matters. Another possible segmentation is between mediations involving repeat users of services, such as governments, insurers and large corporations, and mediations where both parties are one-off users, for example parties in parenting disputes or in small- to medium-sized business disputes. The purpose of market segmentation is to identify segments in which an individual mediator might have a competitive edge and to allow them to focus their marketing in those areas. Reference has been made to using a mentoring relationship as the basis for a mediation business with each mediator, mentor and mentee, servicing different market segments: see 12.25.

Market specialisation 12.38 Mediation lends itself to considerable specialisation, for example in complaints handling, workplace disputes, high-end commercial conflicts or family law matters. Some mediators specialise in disputes within churches, all faiths, denominations and believers accepted provided they have a mediatable dispute. Emerging technologies in the information and computing fields will inevitably attract specialist mediators: see 9.41. Mediators can market themselves as generalists, for example Independent Mediation Services Pty Ltd, or as specialising in certain kinds of disputes, for example XYZ Intellectual Property Mediation Service. In an age of specialisation there are probably market advantages in the latter brand marketing. Specialisation also fits with the notion of market segmentation discussed above. In identifying specialisations, mediators should consider markets they already know, markets in which they have a strong interest and markets with needs they are confident they as mediators can fulfil.

Managing impressions 12.39 Marketing is more than selling or advertising, although these are essential aspects of marketing. Marketing is a process of managing impressions, that is creating the image of a service and a serviceprovider that will satisfy client needs in a particular area. Technical excellence alone will not develop mediation practice unless in the minds of clients there is good customer service in matters such as communication, responsiveness, turn-around time, and the like. Needless to say, the gap between impressions and reality cannot be too large — at least not in the long term. Krivis and Lucks (2006) recount the story of a mediator whose marketing skills far exceeded his mediating skills, at least in the specialist litigation market he was targeting. These types [page 368] of experiences are not only damaging for individual mediators as unhappy clients and legal advisers are usually happy to talk about bad experiences, they are also potentially damaging for the development of mediation in general.

Individual marketing responsibility 12.40 While individual private mediators derive some benefit from the ‘generic’ promotion of mediation and the activities of high-profile mediators, much of the marketing responsibility falls on their own shoulders. They will have to undertake extensive promotion of their services in order to develop a reasonable practice. Marketing can be aimed both at potential users of mediation services and at those who might make referrals to mediation, such as lawyers, accountants, government agencies, courts and the police. 12.41 Private mediators need to make marketing decisions about three factors, namely concept, model and brand. As regards concept,

Bush and Folger (2004: 9) identify four main accounts of the mediation movement within the literature: 1. the satisfaction story, focusing on interests, mutual problemsolving and self-determination for parties; 2. the social justice story, focusing on organising individuals around common interests and building stronger community ties and structures; 3. the transformation story, focusing on mediation’s capacity to transform the character of individual disputants and society as a whole; and 4. the oppression story, focusing on the production of outcomes that are unjust, unfair or unreasonable for weaker parties, or for parties not present in a mediation. 12.42 In the context of private mediation practice, the prevailing concept being marketed is the satisfaction story, where satisfaction is measured in terms of cost, time, effectiveness, attention to relationships, confidentiality and other features of the process. Which features will be the most attractive, or more attractive than the others, will vary considerably. In some situations private mediation may be competing with a free or subsidised dispute resolution service provided publicly by tribunals or government agencies, in which case its privacy may be its attractive feature. In others, clients might be more attracted by mediation’s potential for preserving existing business relationships where there are no alternative commercial options available to them. Generally, however, individual satisfaction is the prevailing concept in the current promotion of mediation. 12.43 As regards the model, reference was made in Chapter 1 to the settlement, facilitative, transformative and evaluative models of mediation. These descriptors mean little to an uninformed public, and only a little more to informed consumers, but over time it will be important to move away from the notion that there is only a single model of mediation service. Repeat consumers and discerning advisers will come to differentiate among the models and be selective about their choices. Patients needing

[page 369] health assistance seek out specific forms of intervention, such as surgery, homeopathy or pranic healing, and then more specific forms within these categories, and this trend will emerge even within the formerly narrow confines of mediation. 12.44 Then there is the question of brand. There are some attempts to provide uniformity in agency and tribunal services with one ‘no-name’ brand of mediation. In addition the NMAS is an attempt to provide a quality assurance brand for uniform mediator services nationally. However, in private practice the service of mediation remains closely identified with the provider. This has always been a feature of professional services, despite contemporary pressures towards standardisation. As Mosten (1997: 348) points out, as consumers increase their comparison shopping (tyre kicking) it is important for mediators to advertise their individual styles (brands) of mediation to prospective clients and referral sources. As mediation normally has a direct human interface, much of the brand factor has to do with the mediator’s personality, interpersonal skills, professional background and life experience. 12.45 Thus concept, model and brand are all of relevance in marketing private mediation services. While individual mediators are potential beneficiaries of generic marketing of the concept of mediation, they have to market specific stories in terms of what value they offer clients and their own models and personal brands of the service.

Building dialogue with your target market 12.46 In Making Mediation Your Day Job (2009: Ch 7) Lenski suggests that mediators need to build a dialogue with their market, for example the franchise industry, rather than just try to sell and convince the market of their skills. Dialogue, she explains, is a concept familiar to mediators and helps to build relationships, increase understanding and support informed decision-making. In a marketing context dialogue entails engaging in learning conversations with

members of the target market — conversations characterised by curiosity, active listening and openness to change. Opportunities for building dialogue with a target market are bounded only by the limits of mediator imagination. Some examples include: Writing a blog for the target market. Writing an ‘Ask a mediator’ column in a prominent magazine of the target market. Attending conferences and events relevant to mediation gatekeepers and referrers to build dialogue relationships with them. Sponsoring events for your target market which give opportunities to speak or facilitate discussions, with possibilities for follow-up conversations after the event. Sending out email newsletters containing tips, updates, stories and information relevant to the target market. [page 370]

Using online tools to build your mediation business 12.47 Reference has been made throughout the chapter to the use of online resources to develop a mediation practice. In terms of marketing, mediators can reach a much larger audience online than through face-to-face initiatives. To be effective online marketing needs to be fresh, up-to-date and client-focused. While static websites are still useful as a type of online business card, online communication tools such as blogging are demonstrating high levels of success in terms of overall hits and site returns. This is because blogs offer new and up-to-date information, showcase the blogger’s personality, knowledge and views, and engage people in dialogue. Blogs are frequently identified by search engines and so potential clients may end up visiting a mediator’s blog without setting out to do so. However, it is important to cater for a variety of communication and learning styles as not all potential clients will be avid blog readers.

Mediators should also consider use of podcasts and video-clips (audio and video broadcasts accessible on the internet) to communicate with target markets. For example mediators may have someone interview them about what clients can expect from mediation and how to best prepare for it. Alternatively, they might invite a former client who has completed a successful mediation to talk about his or her experience of the process (without breaching confidentiality obligations). Finally online newsletters (called e-zines), discussion forums of the target market and professional social networking sites are all part of the modern marketer’s toolbox. Mediators are advised to use some form of online marketing and business development by identifying the technological tools that work best for them. This may involve some trial and error.

Securing Referrals 12.48 A sign of marketing effectiveness is the development of mediation referrals from regular sources, and a network of sources provides opportunities for further marketing. Referrals are the lifeblood of mediation practice, but developing referral networks is not easy. The traditional professions, government agencies and other potential sources of referrals need not only to be targeted but also to be educated about mediation, its advantages for clients and its benefits for referrers.

Self-referrals 12.49 Self-referral refers to prospective clients of mediation bringing disputes directly to mediators. There is limited scope for self-referrals to private mediation, partly for reasons of the ‘reluctant user’ syndrome and partly because it takes ‘two to tango’ in getting to the mediation table — you cannot come to the negotiation dance without the other side agreeing to be your partner. However, some selfreferrals may come from mediation clients satisfied with prior services (for example from human resource sections of corporate or government users such as banks and hospitals in relation to

[page 371] their internal disputes), from existing clients who have used a mediator in other professional capacities, and as a result of word-of-mouth references. Direct self-referrals can be encouraged through advertising but will remain problematic while there is ignorance about the concept of mediation.

Referral networks 12.50 Mediators in private practice need to develop existing networks and establish new ones. Despite their manifest modesty, mediators are in a sense the specialists and not the general practitioners of dispute resolution practice. Little work will come directly off the street. Potential mediation clients will usually make primary contact with counsellors, lawyers, health professionals, governments and other agents. These are the dispute resolution generalists and they all need to be educated about mediation’s appropriateness and desirability as a ‘specialist’ referral option. In addition it is important for mediators to identify people who are connectors and influencers in the marketplace, the groups to which mediators should direct some of their marketing. But whatever the level of understanding, referrals to mediators are likely to be no different to referrals in other services where they are based on previous experience with, and personal knowledge and reputation of, the practitioner in the relevant industry. Websites, glossy brochures and long lunches are poor substitutes for these factors. New mediators are therefore encouraged to identify a specialist target market where they have existing contacts and from which they are likely to gain referrals. This will provide a starting point for developing a richer, more diverse referral network in the future. Reciprocal referrals among practitioners are a possibility, as with all professional services, but require greater effort in the case of mediation because of its dependence on two consenting clients.

Structured sources of referral 12.51 Structured sources of referral are a preferred arrangement, but it can be difficult for private mediation providers to have structured referrals from public agencies or other such sources. Moreover, even where structured referrals are in place this does not guarantee actual referrals for individual mediators, and they may not endure over time. For some years in Victoria the Australian Centre for International Commercial Arbitration was written into the Retail Tenancy Regulations 1987 as the body which could nominate private arbitrators, but this arrangement has since been discontinued. Also in Victoria, the dispute resolution clause in the standard Lease of Real Estate Agreement provides that the President of the Law Institute can nominate mediators to give effect to the clause. LEADR is the authorised nominating authority under the Building and Construction Industry Security of Payments Act 1999 (NSW) and under similar legislation in Queensland (2004) and Tasmania (2009). Private mediators in New South Wales are similarly able to obtain referrals if accredited by the Rural Assistance Authority in terms of the Farm Debt Mediation Act 1994 (NSW). [page 372] Industry bodies and large corporations are also a source of structured referrals to mediators or service-providing institutions, captured by referring to the entity in question in contractual dispute resolution clauses.

Ease of referrals 12.52 Ease of referrals entails the ability of interested parties to contact mediators and a mediator’s ability to deal with queries and follow-ups. It is an important aspect of securing referrals which result in paying clients. It requires mediator accessibility by phone and email, and prompt responses to inquiries. Having standard documentation at

hand and making relevant information accessible to prospective referrers are important factors in facilitating ease of referrals: see 12.23.

A warning on referrals (the ‘dumping phenomenon’) 12.53 There is a long-standing tradition among professionals to refer their failures, hopeless cases or X-files to other professionals or other disciplines. Mediation is at times a target for this dumping phenomenon. A danger signal is when a referring lawyer says to a mediator, ‘I have a very interesting case for you.’While mediators can have their own screening mechanisms to assess suitability for mediation (see 2.13-2.15), it also makes sense to secure some preliminary screening from referrers, who may require education in conducting the screening themselves. For mediators this may be a worthwhile long-term investment in avoiding the dumping phenomenon.

Standards and Ethics Practice standards and codes of conduct 12.54 Some Australian mediators are subject to codes of conduct, standards of competence or ethical guidelines, or all of the above. These normally operate in respect of mediators who work for community services, tribunals and government agencies, are subject to statutory regulation (mainly family mediators) or who are members of professional associations which have standards for their members when serving as mediators. Those accredited in terms of the NMAS are subject to standards and ethics enumerated in the NMAS Practice Standards, and to their disciplinary procedures, when practising their mediation craft. As mediation is not a formally regulated profession many mediators are not subject to any practice standards or codes of conduct, for

example private freelance mediators, those acting in organisations and industry bodies, and some community mediators. There is an array of different standards and ethical regimes, and no required national set of competence standards or ethical norms operating on all mediators throughout Australia. 12.55 Where there are standards of competency and ethics they can be either binding or indicative guidelines. Most of those developed by [page 373] professional associations are for guidance only and there is no mechanism for their enforcement or for disciplinary action to be taken against such mediators. The Law Council of Australia and state law societies have standards documents for their members when acting as mediators, most of the guideline variety. The NMAS Practice Standards are binding on those subject to their jurisdiction, as are the complaints and disciplinary mechanisms in the NMAS scheme as a whole. 12.56 In relation to the functions and competencies of mediators the various instruments refer to mediator capacities in relation to: Knowledge of conflict, negotiation and communication dynamics. Knowledge of and ability to deal with cross-cultural situations. Knowledge of law relating to mediation, such as that on confidentiality, and the ability to apply this in a mediation setting. Conducting and managing the mediation procedure, including intake and screening. Gathering and using information, and facilitating its exchange. Defining and diagnosing disputes. Assisting parties communicate and negotiate. Providing information to the parties. Decision-making for parties (where relevant). Terminating or concluding mediation. Limitations on mediator’s ability to express opinions, advise, recommend or otherwise influence outcomes.

12.57 In relation to ethical standards and requirements the various documents tend to refer to: The mediator’s obligation to be neutral and independent. Obligations to disclose factors which might create a conflict of interest. The requirement to act fairly and impartially as between the parties. The duty to ensure effective participation by parties. The requirement not to disclose, either within or outside mediation, information provided to a mediator in confidence. Avoidance of coercion, undue influence or provision of legal advice to induce a settlement. Obligations relating to disclosure and payment of fees. Obligations in relation to termination of mediation. The mediator’s obligation to promote and advertise mediation services accurately and informatively. 12.58 In many cases, however, tackling ethical issues will require considerable reflection, rather than ‘looking up the answer’ in a code of conduct. Ethical [page 374] issues often require a balancing act between the provisions of mediation agreements and codes of conduct and the principle of selfdetermination. For example the question of how evaluative a mediator should be often arises in the context of commercial mediations. Too little may disappoint parties and their lawyers who expect more mediator intervention, and too much may result in a mediator overstepping the mark and alienating parties and advisers. Where there are no applicable standards codes, mediators are still subject to legal redress in relation to negligence, breach of contract or breach of fiduciary duty, or to relevant legislation relating to deceptive and misleading conduct and other consumer remedies. These forms of liability are not easy to establish: see Boulle (2011: Ch 17).

The NMAS Practice Standards are included in Appendix 6.

Complaints against mediators 12.59 As the practice of mediation becomes more professionalised, so too do governance and regulatory systems surrounding it. Given that there is no mandatory national system of mediator accreditation in Australia, there is also no national standardised complaints system. However, numerous mediator complaints systems exist, either regulation-based (for example those of professional associations such as law societies) or established by industry initiatives (for example the NMAS). Under the NMAS s 3(5)(c), Recognised Mediator Accreditation Bodies (RMABs) have capacity to accredit mediators in terms of the system. In addition one of the obligations of RMABs is to: … provide a complaints system that either meets Benchmarks for Industry-based Customer Dispute Resolution or be able to refer a complaint to a Scheme that has been established by Statute.

Mediate Today is an example of an RMAB; its complaints handling procedure is set out at . It stipulates that the service encourages feedback from clients, whether complimentary or critical. The complaints procedure is set up to deal as early as possible with negative feedback, that is complaints, with a view to addressing the complainant’s needs and providing learning opportunities for the respective mediator and the organisation itself. The procedure comprises nine steps, beginning with initial contact between the complaint handler and the complainant, diagnosis and assessment by the complaint handler and facilitated discussion between the mediator and complainant with a view to resolution. In the absence of early resolution, the procedure provides for different ways in which the complaint handler can intervene to deal with the issue. It also deals with post-resolution communications and feedback. 12.60 On an international level the International Mediation Institute (IMI), has a Professional Conduct Assessment Procedure. As with Mediate Today’s system, it begins with direct discussion between

complainant and mediator. The IMI website explains the procedure as follows: [page 375] The principles of diligence, independence, neutrality, impartiality, fairness and integrity are vital to the mediation process, and are set out in IMI’s Code of Professional Conduct. Users of mediation services are entitled to trust that IMI Certified Mediators adhere rigorously to these basic principles. In the unlikely event of a failure by an IMI Certified Mediator to observe the IMI Code, or another code of conduct for which no professional conduct assessment process exists, a Party to the mediation … can apply to have the Mediator’s conduct independently assessed under this process.

The Assessment Process involves up to four steps: 1. 2. 3. 4.

Discussion Mediation Professional Conduct Assessment Appeal Board.

All complaints regarding a Certified Mediator’s non-compliance with the IMI Code must first be discussed with the Mediator. If this does not resolve the complaint application must be made to activate the Mediation Step. If the Mediation Step fails to resolve the complaint, the Party may file a formal request for an IMI Professional Conduct Assessment. One appeal option is available. The IMI Professional Conduct Assessment Procedure does not deprive parties of alternative complaints or disciplinary processes by which a Mediator’s conduct can be governed, or any other applicable national process from being invoked.

Further details of the Assessment Process are available on the IMI website.

Ethical guidelines for promoting mediation 12.61 Many professions, including law and medicine, have adopted ethical guidelines for advertising and promotion by their members. As mediation moves towards becoming a profession in its own right, guidelines to regulate the promotion of mediation and mediators are emerging. Here reference is made to the NMAS Practice Standards s 13, entitled Making Public Statements and Promotion of Services. In

essence the section provides that public statements about mediation should not mislead or be likely to do so and that they should aim to educate the public about the process with a view to enhancing informed decision-making among consumers. Similarly mediators advertising professional services should focus on matters which educate and inform the public and s 13(3) offers detailed examples and guidelines on this point. The subsection is set out below. 13 Making Public Statements and Promotion of Services (3) When advertising professional services, mediators should restrict themselves to matters which educate and inform the public. These could include the following information to describe the mediator and the services offered, such as: name, address, telephone and facsimile numbers, email address, office hours, relevant academic degree(s), specialist subject expertise, relevant training and experience in the mediation process, mediation qualifications

[page 376] such as certifications and accreditations, appropriate professional affiliations and membership status, advantages of a mediation process, and any additional relevant or important consumer information. In particular: a) mediators should refrain from promises and guarantees of results. However, a mediator may report on de-identified information about any evaluation of their services that might assist parties to better understand the mediation process; and b) mediators must accurately represent their qualifications and their relevance and significance. c) Mediators should, where possible, encourage and/or participate in research that can support further professional and public education. d) Mediators can promote their accreditation or additional accreditation and membership under this system.

Growth Options for Mediation Services 12.62 Modern professions and occupations are under pressure to develop new services, to provide more services to existing clients, and to provide existing and new services to new clients. Effective mediation marketing has the potential for attracting new clients, retaining existing and new clients, and persuading clients to use more of the particular service. It is sometimes overlooked that mediation has

potential application in many situations, for example in the negotiation of contracts, in drafting regulations and in dispute prevention. One of the largest corporate mergers in Australian history was facilitated by a mediator and the scope for this form of transactional mediation is probably significant: see Boulle (2011: 30-4). 12.63 The following Ansof matrix suggests how new services or new opportunities could be considered in an overall marketing plan for mediation.

[page 377]

Other Practice Matters Following up on referrers

12.64 It is good business sense for mediators to send notes of appreciation to those who have referred clients to them for mediation, advising that a mediation has been completed. Mediators can also make contact with non-referring professionals whose clients were involved in a mediation as an indirect way of marketing their services for the future. In these contacts the professionals can be informally surveyed about their clients’ satisfaction levels.

Client satisfaction surveys 12.65 These have been referred to earlier as an aspect of reflective practice: see 12.14. Individual surveys provide feedback on specific cases, and surveys collectively can provide statistically significant indicators of client attitudes and mediator performance. Longitudinal surveys can trace subsequent attitudes of clients, as well as the longer-term viability of mediated agreements. For a sample of a client survey form, see Appendix 7B.

Getting paid 12.66 Some mediators ask for advance payment (which may be held in a trust account) for, say, four hours or one day of mediation. If the mediation runs for less than the time paid for, the balance is returned to clients. Others request only a deposit so that the financial entry barrier is not too high, while yet others invoice clients after mediation on an hours-incurred basis. It is difficult to give clients a cost estimate when invoicing is based on time incurred. Most mediations finish within eight hours, many within a shorter period. Complex legal, financial or technical issues can prolong the process beyond those times, as can difficult emotional and relationship issues between parties, poor preparation by participants or the presence of multiple parties and advisers. However, commodity pricing is increasingly demanded by clients and it is easier to stipulate a fixed fee for mediation than it is for traditional legal services. Mediations referred through a service-provider will usually also incur

the provider’s administration charges and it is incumbent upon mediators to explain the various fees and charges to parties prior to mediation: see the NMAS Practice Standards s 12(1). [page 378]

Professional indemnity insurance 12.67 Professional indemnity (PI) insurance is advisable for mediators who neither work for a government agency nor enjoy a statutory immunity from liability. Some professionals such as lawyers are covered by their existing professional indemnity insurance, provided mediation work is part of their normal course of business. Other mediators can obtain professional indemnity insurance commercially from normal industry sources. Mediators accredited under the NMAS are required to hold appropriate insurance unless they can demonstrate their employee status or a statutory indemnity: see the NMAS Approval Standards s 3(1)(c) and (4).

Combining practice with teaching 12.68 Many practising mediators conduct mediation seminars and training workshops. The educational activity serves three purposes: it maintains and develops theoretical understanding in the field, it provides opportunities for networking and marketing their services, and it supplements their income. While in some disciplines those who ‘can’t do teach others to do’, in mediation it is arguably difficult to conduct training effectively without being a practitioner. The mediation discipline requires both scholar-practitioners and practitioner-scholars.

Conclusion 12.69 As with any other venture, the greater and smarter the investment in mediation, the larger the likely return. The investment comprises costs of training, materials, memberships, conferences and

marketing, and the opportunity costs which all of these entail. As with other investments, there are no guaranteed returns and some risk assessment is required. It is often observed in the literature that private mediation practice can be financially risky and stressful. ‘Mixed practices’ where private work is, at least initially, a supplement to other work, including public sector or community mediation, might be a more realistic option for some. The most important thing is to keep your day job while developing a mediation practice but be prepared to give it up if you are really serious about full-time private practice. In any spare time, write a book.

Mediator Learnings 12.70 This chapter raises the following learnings for mediators: 1. Despite high satisfaction ratings from mediation users, there is still resistance in the consumer market to its use. Continuing resistance requires prospective mediators to engage in planning and marketing activities to develop and maintain their practice. 2. Marketing and promotion initiatives should focus on the organisations and individuals that are likely sources of referral to mediators, and [page 379] should take account of new areas in which both conventional mediation and adaptations thereof might be adopted by clients. 3. Marketing and promotion initiatives should make use of available technology such as websites, blogs, podcasts, video-links, Twitter, emails and e-zines. It is important for mediators to select technology with which they feel comfortable and not to go overboard with too many bells and whistles. 4. Even where prospective mediators find it difficult to obtain

practice in formal mediations, they can still apply aspects of the process, and many of the skills and techniques of mediation, in other areas of professional and personal life.

Tasks for New Mediators 12.71 Peruse some news websites or newspapers and use the information provided in editorials, commentaries, job advertisements and other sources to develop a list of potential new areas in which mediation might be useful. What modifications would be needed to make mediation suitable in each situation and how might it be marketed and to whom? 12.72 Write a proposal to an educational institution, voluntary association or sports club in which you point out the advantages of developing a mediation system for disputes arising in the organisation and suggest ways in which you might be able to contribute to the system. Ask a knowledgeable person to comment on your proposal. 12.73 Examine current advertising and marketing campaigns for mediation and other dispute resolution services in various environments. Which models and brands are being marketed and what messages are being provided about the nature of these processes? 12.74 Using the dialogue-building strategy outlined in 12.46 write down the approaches you might use to build dialogue with your target market. Consider the following questions suggested by Lenski (2009: Ch 7). 1. What marketing activities create opportunities for dialogue? 2. How would you initiate face-to-face or online dialogue? Think of location and type of event for face-to-face dialogue and type of internet forum for online engagement with your target group. 3. How can you create return visitors to your website? Consider the topics that interest your target market, their specific problems, what they might find entertaining, something unique you can offer them, the form in which they would like to receive information. What would they need for them to want to place their email

address on your mailing list?

[page 381]

APPENDIX

1 Mediation Clauses LEADR Model Clause for Mediation (Short Form) Note: This is a model clause and needs to be adapted for the specific purpose or circumstances in which it is to be used.

1.1 Mediation The parties must endeavour to settle any dispute in connection with the contract by mediation. Such mediation is to be conducted by a mediator who is independent of the parties and appointed by agreement of the parties or, failing agreement within 7 days of receiving any party’s notice of dispute, by a person appointed by the Chair of LEADR, ACN 008 651 232, Level 1, 13-15 Bridge Street, Sydney; phone: 02 9251 3366, fax: 02 9251 3733, e-mail: [email protected], or the Chair’s designated representative.

1.2 Rules The LEADR Mediation Rules shall apply to the mediation. It is a condition precedent to the right of either party to commence arbitration or litigation other than for interlocutory relief, that it has first offered to submit the dispute to mediation.

LEADR Model Clause for Mediation (Long Form) Note: This is a model clause and needs to be adapted for the specific purpose or circumstances in which it is to be used. [page 382]

Dispute Resolution 1.1 Before court or arbitration proceedings other than for urgent interlocutory relief may be commenced, the following steps must be taken to attempt to resolve any dispute that arises out of or in connection with this contract (including any dispute as to the validity, breach or termination of the contract, or as to any claim in tort, in equity or pursuant to any statute). 1.2 Notice (the notice of dispute) must be given in writing by the party claiming that a dispute has arisen to the other party (or parties) to this contract specifying the nature of the dispute. 1.3 Upon receipt of the notice of dispute, the parties must attempt to agree upon an appropriate procedure for resolving the dispute. 1.4 If within 10 business days of receipt of the notice of dispute the dispute is not resolved or an appropriate alternative dispute resolution process is not agreed, then the parties shall refer the dispute to LEADR, ((ACN 008 651 232) Level 1, 13-15 Bridge Street, Sydney NSW 2000; email: [email protected]; telephone: (61-2) 9251 3366; fax: (61-2) 9251 3733) for facilitation of a mediation in accordance with LEADR’s Mediation Rules. 1.5 The parties must co-operate with LEADR as facilitator. 1.6 If within 10 business days after referral of the dispute to LEADR the parties have not agreed upon the mediator or other relevant particular the mediator and any other relevant particular will be determined in accordance with LEADR’s Facilitation Rules.

1.7 This clause will remain operative after the contract has been performed and notwithstanding its termination.

[page 383]

APPENDIX

2 Standard Forms for Mediation Practice A. Covering Letter Mrs Josephine Bowers 49 Preston Drive Brisbane 4101 QLD Dear Mrs Bowers Re: Information about mediation Thank you for your recent telephone inquiries about mediation and the services which I provide. As promised, I am sending you some information on the mediation process in the form of commonly asked questions and answers. The same information is being sent to the other parties who might be involved in this matter. Please take time to consider this information and to discuss it with your advisers, if any. You or your adviser are welcome to contact me at any time should you have any further queries. If you wish to go ahead with the mediation, please let me know. As soon as all parties have agreed to participate in the mediation, I shall send you my usual Agreement to Mediate, Guidelines on Preparing for Mediation and fee agreement. You can contact me as follows: phone (07) 5421 4321, mobile 0432 712 525, fax (07) 5421 7146 or email [email protected]. If I do not hear from you before, I shall contact you in about two weeks

to find out whether or not you would like to go ahead with the mediation. Yours sincerely Tony Cairns [page 384]

B. Information about the mediator Michelle Moore Qualifications and Current Positions BA (UWA, 1986), LLB (UWA, 1989) Accredited Mediator, LEADR Solicitor of the Supreme Court of Western Australia Partner, Rudd & Rodd, Solicitors, Perth Mediation panellist for Relationships Australia; Residential Tenancies Tribunal; Fremantle Community Law Centre Mediation Experience Conducted approximately 200 mediations and three facilitations: 2005–2011. Experience in community, family law, general commercial, organisational and environmental disputes. Other Relevant Experience Consultant to state and local governments on dispute resolution. Member, Western Australian Law Society ADR Committee: 20052009. Author of three articles on mediation and dispute resolution in ADR Bulletin. Served as role— play coach in mediator training workshops.

Acted as assessor in Schools Conflict Resolution and Mediation Competition. Contact Postal: Telephone: Fax: Email:

PO Box 529, Fremantle, WA, 6959 08 9323 8610 08 9323 8600 [email protected] [page 385]

C. Information about mediation1 What is mediation? Mediation is a process in which an independent person assists two or more people or organisations in dispute to negotiate and to make mutually satisfactory decisions on their dispute. It is a form of ‘assisted negotiations’.

Events leading up to mediation? Typically (though every mediation process is different), a mediation involves the following steps: The mediator is approached by someone with a request to assist. The mediator telephones or writes to the other persons or organisations involved and asks if they are willing to consider mediation. If so, the mediator sends to each person information about mediation, the mediator’s background, a mediation contract to complete and, if necessary, a request for background information on the dispute.

The mediator makes contact with each individual or organisation to explain the process and to assess the suitability of the dispute for mediation. This may be brief telephonic contact or it may involve lengthy personal contact preparing each side for the mediation. A time and place, usually at a neutral venue, is arranged for the mediation meeting.

What happens in the mediation meeting? The mediator welcomes each person and explains the mediation process. He or she asks each person to talk in turn (without interruption from the other) about their concerns. The mediator clarifies the parties’ concerns and translates them into issues for discussion. The issues are written up and listed in order of priority. The mediator then tries to define the areas where the parties are in agreement or disagreement, and provide a structure to the discussions. Each party is asked to explain his or her position to the other on each issue, and together the parties explore options for resolving the points of difference. Thereby an agreement is pieced together, like a jigsaw. [page 386]

Can I talk about the mediation session with friends or professional advisers? Advisers and supporters can be present at the mediation if all parties agree. The parties can also agree on what will be said publicly about the mediation. Neither the mediation decisions, nor anything said at the mediation, can be used in court.

Are agreements reached at the mediation binding at law?

Only if the parties wish them to be binding. The mediator will assist the parties to record the outcome in a Heads of Agreement document which contains both matters which have been agreed and the issues, if any, which are still to be settled. The parties can redraft the agreement into a legally binding document after receiving advice from their lawyers or accountants.

What if I feel uncomfortable with mediation? You can ask to speak to the mediator alone. It is a normal part of the mediation process for the mediator to meet separately with each party on a confidential basis. Or you can express your concern immediately and the mediator will try to deal with it openly. Or you can ask for the mediation session to be adjourned. Some of the mediator’s tasks are to try to balance the negotiating strengths of each person, to improve the negotiation process, and to minimise intimidation.

What does it cost? Mediators charge at an agreed hourly rate for preparation, for actual meeting time, and for other expenses, if any, such as travel. Many mediations are complete after 4–10 hours of work.

What about afterwards? One aim of mediation is to model a method of working through disputes so that the parties can solve their own disputes in the future. Mediated agreements often contain a dispute resolution clause in terms of which the parties commit themselves, in the event of a breach of the agreement, to come back to mediation before initiation of court proceedings. 1. ‘Information about Mediation’ is reproduced with the kind permission of the Dispute Resolution Centre at Bond University.

[page 387]

APPENDIX

3 Finding a Mediator: Checklist for Parties and Advisers IMI — Finding the right mediator1 The purpose of this Decision Tree is to help parties and their advisers who may have decided to use mediation but still need to appoint a mediator. The Decision Tree has been designed by the International Mediation Institute (IMI) to provide objective and impartial guidance to users of mediation services on what to bear in mind when appointing a mediator. It is also available on IMI’s website where readers can click on the hyperlinks, labelled ‘more’, to obtain further information: see www.imimediation.org. [page 388]

1. The IMI Decision Tree is reproduced with the kind permission of the International Mediation Institute.

[page 389]

APPENDIX

4 Agreements to Mediate and Confidentiality Agreements A. The Law Society Mediation Precedents 1. THE AGREEMENT TO MEDIATE This Agreement is provided by The Law Society as a guide only. It is the responsibility of the participants to the mediation to ensure that the agreement meets the needs of the dispute.

(Including a Confidentiality Agreement to be signed by third parties) During the preliminary conference the participants are asked to sign the Agreement to Mediate (The Agreement). The Agreement (reproduced in full below) sets out the procedure followed during the preliminary conference and mediation. The Agreement details the role of the mediator; the parties’ commitment to co-operate with the mediator, the agreement to maintain confidentiality with respect to information disclosed during the mediation and agreement that certain matters will be privileged, including any settlement proposal. The

Agreement may be modified with the consent of all parties. [page 390]

The Agreement to Mediate THIS AGREEMENT IS MADE ON …. (day) …. (month) …. (year) BETWEEN THE FOLLOWING PARTIES (In this Agreement called “the parties”)

Appointment of the Mediator 1. The parties appoint the mediator to mediate, in accordance with the terms of this Agreement, the dispute between them. The dispute is briefly described in Schedule 1 to this Agreement (the “Dispute”). The mediator accepts the appointment as set out in Schedule 2 to this Agreement.

Role of the Mediator

2. The mediator will endeavour to be neutral and impartial. The mediator will assist the parties to attempt to resolve the Dispute by helping them to: 2.1 systematically isolate the issues in dispute; 2.2 develop options for the resolution of these issues; 2.3 explore the usefulness of these options; and 2.4 meet their interests and needs. 3. The mediator may meet with the parties together or separately. [page 391] 4. The mediator will not: 4.1 give legal or other professional advice to any party; or 4.2 impose a result on any party; or 4.3 make decisions for any party. 5. The mediator will not accept an appointment or act for any party in relation to any proceedings concerning the Dispute. 6. Neither party will take action to cause the mediator to breach Clause 5.

Conflicts of Interest 7. The mediator must, before the commencement of the mediation, disclose to the parties to the best of the mediator’s knowledge any prior dealings with any of the parties as well as any interest in the Dispute. 8. If in the course of the mediation the mediator becomes aware of any circumstances that might reasonably be considered to affect the mediator’s capacity to act impartially, the mediator must immediately inform the parties of these circumstances. The parties will then decide whether the mediation will continue with that mediator or with a new mediator appointed by the parties.

Cooperation by the Parties 9. The parties will use their best endeavours to carry out the tasks set out in Clause 2 of this Agreement. 10. The parties will comply with reasonable requests and directions made by the mediator about the conduct of the mediation.

Conduct of the Preliminary Conference 11. As part of the mediation the mediator may schedule a preliminary conference at a time and place convenient to the parties to establish an agreed timetable for the mediation.

Authority to Settle and Representation at the Mediation Session 12. Parties must attend the mediation session. If a party is not a natural person it must be represented at the preliminary conference and the mediation conference by a person with full authority to make agreements binding on it settling the Dispute, as evidenced by a written authority to participate. 13. At the mediation each party may have one or more other persons, including legally qualified persons, to assist and advise them. [page 392]

Communication Between the Mediator and the Parties 14. Any information disclosed to a mediator in private is to be treated as confidential by the mediator unless the party making the disclosure states otherwise.

Confidentiality of the Mediation 15. The participants will not disclose to anyone not involved in the mediation any information or document given to them during the mediation unless that person, has signed the prescribed Confidentiality Agreement in the form attached to this Agreement. 16. The participants agree that, subject to Clauses 22 and 23, the following will be privileged and will not be disclosed, or be the subject of a subpoena to give evidence or to produce documents, in any proceedings in respect of the Dispute: 16.1 any settlement proposal whether made by a party or the mediator; 16.2 the willingness of a party to consider any such proposal; 16.3 any statement made by a party or the mediator during the mediation; and, 16.4 any information prepared for the mediation that is communicated to another party during the mediation.

Documentation 17. The mediator will return/destroy (delete as applicable) all documentation other than the Agreement to Mediate and the signed Settlement Agreement.

Suspension or Termination of the Mediation 18. A party may terminate the mediation at any time after consultation with the mediator. 19. The mediator has a discretion to terminate or suspend the process at anytime. 20. The mediator may terminate the mediator’s involvement in the mediation if, after consultation with the parties, the mediator feels unable to assist the parties to achieve resolution of the Dispute.

21. If agreement is reached at the mediation, the terms of the agreement must be written down and signed by the parties before they leave the mediation.

Enforcement of the Settlement Agreement 22. If the Settlement Agreement is expressed to be binding on all parties, any party may enforce the terms of the Settlement Agreement by judicial proceedings. [page 393] 23. For the purposes of enforcing an agreement of the mediation, any party may call evidence of the Settlement Agreement including evidence from the mediator and any other person engaged in the mediation. 24. Subject to Clauses 22 and 23 the Settlement Agreement is confidential unless otherwise agreed by the parties.

Exclusion of Liability and Indemnity 25. The mediator will not be liable to a party for any act or omission in the performance of the mediator’s obligations under this Agreement unless the act or omission is fraudulent. 26. The parties together and separately indemnify the mediator against any claim for any act or omission in the performance of the mediator’s obligations under this Agreement unless the act or omission is fraudulent.

The Cost of the Mediation 27. The parties together and separately will be liable to the mediator for the mediator’s fees described in Schedule 3. The parties will share equally all the other costs of the mediation described in Schedule 3.

28. The parties agree that if the mediation does not result in an agreement to resolve the Dispute, they will consent to an order that the costs of the mediation will be costs in the cause, i.e. costs of the mediation (including those of the legal representatives to attend the mediation) will be treated as part of the overall costs in subsequent court proceedings which are generally payable by the losing party. 29. If the mediation does result in an agreement to resolve the Dispute, the costs of additional time (Schedule 3) in the mediation must be paid within 30 days from the receipt of the invoice.

SCHEDULE 1: Description of the Dispute The Dispute is the subject of proceedings (if applicable): No: …. of …. in the …. Court; and/or (Insert brief description of the Dispute)

SCHEDULE 2: Date and Venue of Mediation Conference The mediation of the Dispute will be held on: …. (day) …. (month)…. (year) at (Venue of mediation)

SCHEDULE 3: Costs of the Mediation6 1. Mediator’s Fees and Expenses: For the preliminary conference, all preparation time and the first 3 hours of the mediation session.

$660 per party (including GST), to be paid in advance (unless otherwise agreed)7

2. Additional Time Fee Estimate: Assuming the mediation Time beyond the first 3 hours of session exceeds 3 hours,

the mediation session.

the mediator’s fee will be $_____8 per hour.

$165 per party (including 3. The Law Society’s Administration GST), to be paid in advance (unless otherwise Fee: agreed)9 4. Room Hire: At cost.

Signing of the Agreement to Mediate The parties,10 legal representatives and the mediator have signed this Agreement to Mediate as follows:

[page 395]

Confidentiality Agreement for observers or support persons Name of participant present at the mediation. (Please print) I UNDERTAKE to the parties to the mediation that, in exchange for being permitted by them to participate at the mediation as follows: 1. I will not disclose to anyone any information received by me during the mediation, unless required by law to make such a disclosure. 2. I will not disclose to anyone involved in the mediation any information received by me during the mediation from a party to the mediation unless expressly authorised by the disclosing party to do so. 3. To the extent that I am required to disclose any information either by law or otherwise I will immediately notify the other participants of this requirement.

[page 396] … (Signature of participant) (Date) (Address)

2. MODIFICATIONS TO THE LAW SOCIETY AGREEMENT TO MEDIATE FOR LOCAL GOVERNMENT MEDIATIONS Amendments or additions to the following recommended for local government mediations:

paragraphs

is

Conduct of the Preliminary Conference The replacement of existing paragraph 11 11. The mediator, the applicant and the objectors or their representatives and any persons assisting/advising parties who are to attend the mediation session must attend the preliminary conference.

Confidentiality of the Mediation The addition to existing paragraph 15 15.1 No communication shall be made to or discussion entered into with the media, without such agreement.

Acknowledgment and Declaration by the Parties The addition of paragraph 30

30 The parties jointly acknowledge and declare that should the consenting authority(ies) have the power to make a decision in relation to any application the subject of the dispute, its participation in the mediation does not in any way compromise its position as a consent authority or otherwise fetter its statutory authority in relation to the consideration and determination of the application.

Statement of Result of Mediation The addition of paragraph 31 31. The parties may agree to issue a joint statement as to the outcome of the mediation or a mediation session. The contents of any such statement is to be agreed by all parties written down and signed by all parties before they leave the mediation or the session. [page 397]

B. Agreement to Mediate Mediation Agreement1 PARTIES: DISPUTES: AGREEMENT Appointment of the mediator 1. The parties appoint _____ (“the mediator”) and the mediator accepts appointment to mediate the disputes in accordance with the terms of this agreement (“the mediation”). 2. (a) The mediator will fairly and impartially assist the parties to discuss the disputes, identify issues, consider possible legal

rights and obligations and practical factors and attempt to develop mutually acceptable solutions. (b) The mediator is not required to give legal or other advice, decide whether or how the disputes should be resolved, coerce a solution or ensure that any settlement is fair but the parties acknowledge that the mediator uses a blended style of mediation and in his discretion in the course of a private conference with any party may make observations on the practicality of litigating the matters in issue. (c) The mediator’s opinions, statements and recommendations are not binding on the parties. (d) The mediator will abide by the Practice Standards as provided by the National Accreditation System for mediators available at