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

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

3. 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

4. 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!!!

5. 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

6. 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

7. 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

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

9. 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

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

11. 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

12. 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

13. 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

14. 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

15. 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

16. 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

17. 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

18. 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

19. 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?

20. 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."