Third Pacific Regional Mediation Forum June 2012 Mediator Strategies & Interventions Michael Wall & Chuan Ng Federal Court of Australia

Mediator Strategies & Interventions Architecture of the Session Keeping the Flame of Mediation Alive by: Customising the mediation process to the case (not a cookie cutter approach) Flexible use of joint sessions and the caucus: establishing mediator authority, building rapport and managing communication Adopting strategies for overcoming psychological & cognitive Barriers Addressing merits barriers

Mediator Strategies & Interventions Mediator’s Overriding Goals : Facilitate effective communication Shift thinking/ perceptions Narrow gap Generate movement Resolve differences Achieve consensus

Structure the Mediation Fit the Forum to the Fuss: Aligning the Mediation structure/ process to the issues/ parties. Pre Mediation? Joint (open) session: A meeting of all participants in the mediation private (caucus) session. A private (and usually confidential) meeting outside the larger group

Joint Session : Opportunity For mediators –Gain insight –Demonstrate leadership –Set tone –Be transparent –Impartiality? For lawyers –Demonstrate skill –Access decision maker For parties –Be heard –Listen –Exist party-to-party –Gain understanding –Evaluate

Caucus : Respite For mediators –Reality testing –Coaching –Fixing mistakes –When the issue is not the issue? –Mutual partiality? For lawyers –Real advice –Strategize For parties –Respite from joint –Reactive devaluation –Explore

Setting the Tone & ‘Conditioning’ the Parties § Use specific skills to temper the potential negative aspects of competitive bargaining – e.g. § Educating about how offers may be perceived § Educating about the timing of offers § Assisting with packaging and presenting offers § Helping parties reflect on patterns of concession making § Softening the negative impact of hard-ball tactics § Return to a focus on ‘needs and interests’ to deal with impasses in negotiations § Creating a ‘seize the day’ approach § Establish deadlines; create sense of urgency § Persuasion through ‘conversation’ not ‘preaching’

Interventions to Facilitate & Promote Communication and Movement § Model interest based communication during the process by: § Talking about ‘issues’ rather than attributing blame § Providing positive feedback § Seeking clarification rather than assuming intentions § Exploring reasons for actions § Being future focused § mediator as a calming influence § mediator sends signals of flexibility § mediator discloses interests and floats ideas

Cognitive & Merits Barriers Advocacy Bias Partisan (selective) perception Overconfidence/ over optimism (exaggerated over confidence) Over investment (sunken cost) Mis wanting / Loss Aversion Reactive devaluation Zero sum bias

Cognitive Barriers Mediator Interventions Reframing “The Map is not the Territory” Perceptions & Understanding filtered by Experience, Values and Expectations

No one sees things from all points of view Organisational Life Perceived & Experienced Differently by Individual Members The six blind men

Mediator Strategies to address cognitive barriers - Third Position Questioning & Role Reversal – Questions rather than statements – Unbiased summarising – Mutualising – Bringing the other into the room – Hear & acknowledge before a challenge or request – The mediator’s dance – Talking about what is ‘achievable’ rather than what’s ‘reasonable’ – Focus on the issue rather than the behaviour – Reframing – Expansion of information exchange – Broaden the party's perspective – ‘Expand the pie’: look for additional issues

Mediator Interventions Role Reversals and Perceptual Positions

Cognitive Barriers Reframing can shift focus from: - power/ problems to interests. - positions/outcomes to interests - attacks on people to solving problems - accusations into issues - general to specific and specific to general - negative to positive - destructive to constructive - past to future - differences to common interests - offer to option

Merits Barriers – interventions Mediator Strategies for responding to merit barriers - Case Analysis/ risk assessment - Decision Tree (Analysis) - BATNA (test is not ‘fair’ or ‘reasonable’) - Goal Setting / Risk Analysis - Reality Testing & Doubt Creation

Psychological Barriers Strong Emotions SilenceViolence Masking ( sarcasm; sugar coating etc) Controlling Coercing others; dominating conversation; cutting others off; speaking in absolutes; changing subjects; Avoiding Steering away from sensitive topics Labelling Stereotyping people or their ideas; criticising their style or their demeaning their ideas Withdrawing Exit the conversation or exit the room Attacking Belittling and threatening; challenge competence or expertise. Threaten to walk: no deal.

Psychological Barriers Strong emotions Mediator Interventions to balance emotions and reason include: - “Go to the Balcony” - Interruption - Naming (the behaviour) - Questioning - Clarifying - Summarising - Acknowledging - Mirroring - Correcting - Diverting - Priming (suggest/ hypothetical) - "What If"/ Suppose that - Role Reversal - Perceptual Positioning (move to second person) - Reframing - Make decisions based on risk assessment and not moral judgment

Generating Movement Through Persuasion Mediator to constantly re-assess the best way of generating movement: Face to face Discussions and negotiations Caucused negotiations Shuttle diplomacy (Mediator as carrier pigeon?) Blended or mixed mediation formats