Preparation/Pre-Mediation Learn about the case and the parties Managing Parties and Party Representatives in Mediation: Tools for Lawyer and Non-lawyer Mediators Preparation/Pre-Mediation Learn about the case and the parties Prepare a proper mediation agreement Confidentiality Privilege Exclusion of Liability Provide standards/guidelines to the parties and representatives Use pre-mediation conferences to educate party representatives on Mediation and mediation advocacy, especially the differences with adversarial processes the Advantages and opportunities of mediation Know your client. Know your Arbitrator. Know your party advocates RI med agreement Authority   Each party must be represented at the Mediation conference by a person or persons having or able during the course of the mediation to obtain authority to settle the Dispute. Confidentiality The Parties and the Mediator will not unless required by law to do so, disclose to any person not present at the Mediation, nor use, any confidential information furnished during the Mediation unless such disclosure is to obtain professional advice or is to a person within that Party’s legitimate field of intimacy, and the person to whom the disclosure is made is advised that the confidential information is confidential. Non- parties: 14. Any persons other than the Parties (including legally qualified persons) attending the Mediation to assist and advise a Party in the Mediation shall sign an acknowledgement and undertaking as to confidentiality as specified in Schedule 3.

And that they be ready to problem-solve, not litigate, by: Managing Parties and Party Representatives in Mediation: Tools for Lawyer and Non-lawyer Mediators Request that the advocates prepare for mediation by preparing their clients, managing expectations and identifying potential: Impasses Options Areas of agreement BATNA And that they be ready to problem-solve, not litigate, by: Working with the other side Focusing on interests Keeping an open mind And allowing the client to participate actively Getthem on bard from the outset

Recognizing and Dealing with Advocate Negotiator Types Competing Managing Parties and Party Representatives in Mediation: Tools for Lawyer and Non-lawyer Mediators Recognizing and Dealing with Advocate Negotiator Types Competing Collaborating Compromising Avoiding Accommodating Use URY & Fisher models to deal with these types: Ask Questions Reframe Go to the balcony Build golden bridge Bring the representatives to do the same with the other party.   Duty to the Court Duty to the general administration of justice Duty to clients The duty of honesty, courtesy and fairness to other parties. ) Law Council of Australia Guidelines for Lawyers in Mediations (2007) assist clients, provide practical and legal advice on the process and on issues raised and offers made, and to assist in drafting terms and conditions of settlement as agreed. ‘Lawyers and clients should act, at all times, in good faith to attempt to achieve settlement of the dispute.’ Manage client expectations through educating about the process Explain differences with adversarial proceedings Work with the other side, not against Encourage empathy - not incompatible with assertiveness interests, not positions Keep an open mind Prepare your client to participate actively Help your client to understand real interests and goals Carrot

Issues during the Mediation Session Managing Parties and Party Representatives in Mediation: Tools for Lawyer and Non-lawyer Mediators Issues during the Mediation Session Power imbalance - Especially when only one party is represented Non-lawyer support person doesn’t understand role Unprofessional conduct Misleading conduct – beyond puffery Refuses to let clients speak Disagreement between lawyer and client Making insulting offers Using the mediation as a litigation tool Wanting to “WIN” at all costs Trying to settle at all costs Seashell Don’t lose sight of your ethical duties Be open to continuing contact with the mediator if there is no settlement Teach advocate to use mediator for reality testing

Remind participants of their initial agreement Reality test, use BATNA Managing Parties and Party Representatives in Mediation: Tools for Lawyer and Non-lawyer Mediators Tools Remind participants of their initial agreement Reality test, use BATNA Take a break Bring the discussion back to interests Separate the lawyers Separate the parties Seashell Don’t lose sight of your ethical duties Be open to continuing contact with the mediator if there is no settlement Teach advocate to use mediator for reality testing

Remind the Advocate of His or Her Duties Duty to the Court Managing Parties and Party Representatives in Mediation: Tools for Lawyer and Non-lawyer Mediators Remind the Advocate of His or Her Duties Duty to the Court Duty to the general administration of justice Duty to clients The duty of honesty, courtesy and fairness to other parties. Law Council of Australia Guidelines for Lawyers in Mediations (2007) Assist clients Provide practical and legal advice on the process and on issues raised and offers made Act in good faith to attempt to achieve settlement of the dispute.’ Stick The duty of honesty, courtesy and fairness to ‘third parties’. LIV Professional Conduct and Practice Rules 2005, Ethics (and some related issues) in Mediation Mark Hebblewhite – Gordon & Jacksons List Good faith in contract clause

Avoid being too Directive Avoid giving legal advice Managing Parties and Party Representatives in Mediation: Tools for Lawyer and Non-lawyer Mediators Avoid being too Directive Avoid giving legal advice Don’t press parties to reach a settlement if they need more time, even if a party reneges after agreeing Encourage the parties to remain in contact even if there is no settlement Follow up regularly Be open to continuing contact with the mediator if there is no settlement Tapoohi v Lewenberg (No 2) - [2003] VSC 410

Thank you for your attention. Managing Parties and Party Representatives in Mediation: Tools for Lawyer and Non-lawyer Mediators Thank you for your attention.