- best practice for solicitors and advisors Attending a Mediation - best practice for solicitors and advisors MARY CONDELL SHEIL SOLICITORS and EQUITABLE SOLUTIONS STEP 27.11.2013

What Style of “Advocacy”/Advice? Can depend on the Forum The Mediator’s own style KEY POINT : ADAPTABILITY

THE MEDIATION PROCESS Mediator is in charge One day or once a week? Participating in the “Mediation space” Who attends Those with authority to settle The “right” people Counsel? Importance of attendees knowing their role

Relevance of Role of Attendees in Trusts and Estates Matters Mediation is about empowerment In trust and estate matters the parties can have many different legal roles – executor, trustee, beneficiary, creditor, debtor, guardian Conflicts of interest? Key Question: In what role have the parties the most negotiating and equal power? In-Laws!!!

THE MEDIATION PROCESS SOLICITOR’S PREPARATION Know the facts Know the client’s STORY – all of it Know the law Know the costs Have the paperwork – medical reports, valuations, tax advice, expert opinions etc Know the client’s interests and needs, INCLUDING NON LEGAL PRIORITIES OR RISKS Know own role as legal advisor and support

THE MEDIATION PROCESS Preparing the client By Exploring TRUE interests and needs including non legal matters Exploring own likely/preferred settlement options Exploring other party’s likely preferred settlement options TO Speak openly to the mediator and other party Listen to the other party and to the mediator

THE MEDIATION PROCESS Preparing the client (continued) FOR Their role as controller of their own dispute and it’s resolution Your role as supporter, legal advisor The mediator’s role as facilitator and empowerer of both parties Not getting everything they want, letting go of “position” The ultimate goal of leaving mediation with a settlement reached by BOTH parties that they AND other party can reasonably live with

THE MEDIATION PROCESS The Diamond OPENING Process STORY TELLING Model FRAMING THE ISSUES PROBLEM SOLVING AGREEMENT

THE MEDIATION PROCESS OPENING Who should give the opening statement? Opportunity to set collaborative tone - articulate clearly own perspective - acknowledge perspective of other side Welcome opportunity to work together Express hope that process will mean the parties can work/live/trade/deal with one another amicably in the future

THE MEDIATION PROCESS Private Meetings or Joint sessions?? To caucus or not? That is the mediator’s question – and the mediator’s decision!

THE MEDIATION PROCESS Story Telling : an opportunity for the solicitor too to listen carefully as client/each client is: Heard by the other side and/or mediator Encouraged to clarify issues/versions of events Allowed to express feelings/vent emotions Hears (and gives) “expert” evidence Given the opportunity to gather information in order to - identify needs and interests of own client and other party - identify possible settlement options

THE MEDIATION PROCESS Framing the Issues – the solicitor’s role; Keep an open mind, what may come out as the real needs and interests of your client may be different now, move with them Don’t take over the process for your client, instead encourage your client in the process Make sure your client doesn’t forget any aspect of the dispute/expert’s opinion eg tax advice etc Model and encourage separation of the problem from the people Realise that other parties issues are your client’s issues too

THE MEDIATION PROCESS Problem solving – the solicitor’s role: See the mediator as a tool, not an obstacle Keep client focused on interests and needs, and own focus on client’s best overall interests Think outside the box, encourage the client to brain storm, to come up with inventive solutions for the problem Enlarge the range of alternatives, do not pre-suppose a “fixed pie”, do not think in terms of legal solutions only Allow the mediator access to your client, to be involved in the brain storming

THE MEDIATION PROCESS Problem solving – the solicitor’s role continued Listen to the mediator and follow the mediator’s lead Explore options, distinguish this as seeking possible solutions from ultimately deciding what is best Support the creativity of the other party/solicitor, do not dismiss suggestions out of hand Do not loose sight of goal of fair outcomes for ALL so look at options for mutual gain Listen to your OWN client

THE MEDIATION PROCESS Agreement – the solicitor’s role: Know your client’s ZOPA (zone of possible agreement) Be aware of the other party’s ZOPA Permit your client autonomy over the solution, be there to support but be prepared to let go when appropriate Articulate BATNAs (the best that can happen if we don’t reach a resolution here) and WATNAs (the worst that can happen if we don’t reach a solution here) to your client including the non legal consequences of each

THE MEDIATION PROCESS Agreement – the solicitor’s role continued Give legal advice Ensure all other advice, information is available Assist the mediator in “reality testing” the proposed resolution with your client Don’t forget the issues of costs Remember this is not a forced settlement it is mediation, so BOTH parties need to leave feeling the outcome is fair for ALL

THE MEDIATION PROCESS The Mediated Settlement Agreement: Draw it up with the other party’s solicitor overseen by the mediator If Court proceedings are in being deal with what is to happen to them and to the costs of them Be positive, x has agreed to…., rather than x has agreed not to…. Put a realistic time frame on things to be done

THE MEDIATION PROCESS The Mediated Settlement Agreement continued Name those specifically responsible for doing something, eg AB will rather than the tustees will Frame it collaboratively eg CD and EF agree to……../will approach/investigate Put in a further mediation clause in the event of further difficulties/disputes

THE FUTURE? Mediation clauses in wills and trust documents? Incentive to disputing beneficiaries to try mediation? Specifies who is to pay the costs? Costs sanction against those who won’t participate?

Sample Mediation Clause "IT IS MY EXPRESS WISH that my executor shall in the case of any dispute arising in connection with the terms of this my Will or the administration or any other aspect of my Estate recommend that the matter shall in the first instance be referred to Mediation facilitated by a suitably qualified Mediator. •I DIRECT that my Executor shall in the absence of agreement between the parties on the choice of mediator have the power to choose the Mediator and that the Mediator’s costs shall be regarded as part of my testamentary expenses. •I DIRECT however that nothing in this clause is in any way to be construed as reducing the power granted to my Executor under the Succession Act 1965 or any Act amending it replacing it."