The Conduct of Mediation CENTRE FOR EFFECTIVE DISPUTE RESOLUTION Seminar on Investment Mediation for Government Officials: The Conduct of Mediation James South- Mediator and Director of Training, Centre for Effective Dispute Resolution (CEDR)
The phases of mediation Preparation Exploration Concluding Bargaining Opening
The phases of mediation Preparation Exploration Concluding Bargaining Opening
Opening Introductions Ground rules Parties’ statements Often first time to present case face to face The mediator will introduce him / herself and ensure that his / her role is understood. Ground rules will be set, re-enforcing the voluntary and confidential nature of the mediation and setting out the planned agenda for the day. The parties opening statements are an important beginning for the mediation, enabling them to inform the other side of their case with full feeling. It is often the first chance that the parties will have had to put their case to the other party face to face, and similarly the first opportunity to hear the other party put their case.
Roles during opening Mediator Explains ground rules and process Sets the tone Encourages participation Lawyer Presents opening (to extent agreed with client) Acknowledges valid points made by other parties Listens actively Client Acknowledges authority Confirms understanding of mediation agreement terms Makes opening (to extent agreed with lawyer) Vents, “clears the air”, gives explanations and has “day in court”
The phases of mediation Preparation Exploration Concluding Bargaining Opening
Information unknown to others Information known to others Why Explore? STATED POSITIONS Claims Demands Solutions Rights Context Needs Concerns Health Emotions Financial pressures Fears/Hopes Feelings History Need for speed Reputational and other risks Personal & Commercial drivers Information unknown to others INTERESTS Information known to others
Roles during exploration Mediator Builds relationship, trust and rapport with parties and lawyers Asks open questions to identify needs/interests Generates ideas – “expands the pie” Lawyer Allows client to focus on commercial and personal interests Discusses legal issues when appropriate Client Explain wider picture, interests, agendas, context Differentiate between wants and needs Trust the mediator – confidentiality
The phases of mediation Preparation Exploration Concluding Early Bargaining Opening
The phases of mediation Mediator Coaches parties on framing of first offers and tests how it will be received Identifies objective criteria Manages expectations and reactions Lawyer Realistic assessment of strengths and weaknesses of the case Assist client to formulate offers Client Adjusts expectations Makes and reviews offers Yields to reason – open to other side’s reasoned points
The phases of mediation Preparation Exploration Concluding Late Bargaining Opening
Roles during late bargaining - Deadlock Mediator Reality testing- BATNA and WATNA Risk analysis Uses strategies to break impasse Lawyer Realistic assessment of strengths and weaknesses of the case Reviews BATNA Re-assesses costs Client Have reached the “point of despair” Adjusts expectations based on reality testing Makes and reviews offers
The phases of mediation Preparation Exploration Concluding Bargaining Opening
Concluding phase of mediation The settlement must be viable and workable Satisfy all parties Deals with all issues in dispute Minimise likelihood of future disputes The best settlement is the parties’ not the mediators’ Put settlement in writing