There are three core components in the dispute management process -

• The content and content interests of the dispute
• The relationships and relationship interests  involved in the dispute
• The choices of process to manage the dispute and the process interests of the parties

I totally agree with this statement in the IAMA Mediator’s handbook - “For durable and effective resolution of a dispute, the parties’ process interests, relationship interests and content interests all need to be addressed.”

Mediators need to encourage the parties to communicate all their interests, and then assist them to find solutions that satisfy enough of those interests that they can each say “I can live with that solution”.  This is what opens up pathways to dispute resolution.

It usually turns out that HOW people negotiate to resolve their dispute and WHO is involved in the negotiation end up being more important in achieving DISPUTE RESOLUTION than WHAT is in the dispute.

A skilled mediator will be better able than a less skilled one to identify each parties critical interests that must be satisfied to make a settlement possible on the day of mediation.

In a recent commercial dispute that I mediated the content of the dispute included claims of money owed for services provided, moneys lent and not repaid and items of property retained by one party and what each item’s market value was. The mediation process was getting bogged down by attempts to achieve a win/win by dividing up the property items when their was a major dispute over the valuations. When I was able to bring out that one party had more interest in receiving the cash and the other more interested in keeping the pieces of property (antiques, paintings etc) a solution soon emerged with terms that gave more of the disputed cash to one and more of the property items to the other irrespective of their true market valuations. The party who had the interest in the cash clearly needed to achieve a certain minimum payment in cash in the settlement for him to say “YES” to any deal.

The other factor that really helped resolve this dispute was the time and effort applied in PRE-MEDIATION process to explore the history of the RELATIONSHIP and identify KEY INTERESTS of each party that arose from that relationship. This process helped widen the possible options to resolve the dispute and save the relationship at the same time.

Lawyers who are not trained in Alternative Dispute Resolution Skills will tend to focus mainly on the CONTENT of a dispute and the TERMS AND CONDITIONS for Settlement. This often leads to the parties becoming fixed and polarized in their positions and this reduces the chance of a good outcome. Mediators can often best assist the parties by using a co-operative approach that looks for creative solutions to fulfill the real needs and interests of the parties. A lot of the mediator’s skill is applied to uncovering those real needs and interests.

Christopher Whitelaw

Mediator

Most of my work as a mediator is in commercial disputes.

Commercial disputes are fantastic for allowing a Mediator to bring into play a whole repertoire of skills. The use of those skills makes a real difference to whether or not a successful outcome is achieved or not.

If the parties are accompanied by lawyers, then, if a mediator fails to take charge of the process (both pre-mediation and during the mediation) and fails to make use of a range of dispute resolution skills the most likely result of that will be that what was supposed to be a “mediation” becomes a lesser creature - a “hosted settlement conference”.

This is what I often do -

PRE-MEDIATION

• Ask the parties or their lawyers to send me (preferably at least 2 weeks before the mediation date) a folder containing their Position Statements, any pleadings filed in court, a summary of any prior attempts to settle the dispute and any other documents they attach importance to;
• After reading this material I then generate a Summary of that material and a List of questions that I ask the parties to review to prime their minds for the mediation experience.

AT MEDIATION

• I have a special Power Point slide show that I use to help explain the Mediation process and to focus the Parties (and their lawyers’) minds on a different set of questions that have nothing at all to do with the law, legal issues or measuring up “evidence” to the “legal issues” in the case. This is done to help shift the mindsets from one paradigm for dispute resolution (the legal one) to a different paradigm that chiefly focuses on the parties (not the lawyers) working out what is important to them and on what would have to happen that day for them to resolve their dispute and bring the litigation (if the matter in in court) to an end.
• I get the parties (not the lawyers) talking to each other in Joint Session as quickly as possible after the mediation process has been explained.
• I try to create a relaxed and informal atmosphere in the Joint Session that will foster conversation between the parties.
• I use the Lawyers (if they are there) to help clarify things that need clarification if it becomes clear during the discussion between the parties that such clarification is needed to keep them on track and on point.
• I get the issues that are coming out of the discussion up on the white board and seek feedback from the parties that they both see them as important issues in their dispute.
• I give each party breathing space by taking opportunities to summarize things back to them and asking each of them to signal that they are happy with that summary before we try to progress further in the discussion. Often this PAUSE in the dialogue between the parties, whilst I am summarizing, allows either or both parties to go deeper into a particular issue or raise a tangental one.
• When it seems to me that quite a lot of has been talked about and the parties have come to a pregnant pause in their face to face discussion, and they have both confirmed what they feel are the chief issues and each spoken around those issues to each other, I then suggest that we pause the joint session and allow each side to move to a private break out room where they can de-brief on that joint session discussion with their respective lawyers.
• It is important at this point that I move quickly to speak to each side of the dispute in their private space and where total confidentiality applies to my discussions with them.
• My moving into this dialogue with each party quickly I am able to get a quick handle on what has come up as KEY MATTERS OF IMPORTANCE for each side in the dispute.
• This allows me to identify any openings for moving the parties closer together and closer to settlement.
• It also allows me to identify the potential blocks and barriers and start to explore with each party options to diffuse or break down that block or barrier.
• Using this approach I am soon able to start getting permission from each party to communicate certain things to the other party to test reactions and responses.
• This can stimulate the further progress of the discussion that occurred in Joint Session.
• This process of helping explore options and ideas and shuttling them between the two sides will sometimes see the parties move ahead in their progress to a final resolution of the dispute in leaps and bounds, and if this occurs I see no need to move the parties back to Joint Session.
• But if this shuttle process seems to be getting bogged down by intransigence and falling energy I usually choose to move the parties back into Joint Session.

I am setting this out in some detail as I want people to see that Mediators need to be PROACTIVE in using their skills to facilitate and aid the parties to achieve dispute resolution and to try and avoid the whole process being hijacked by legal minds that are more attuned to “settlement negotiations” based around Legal Issues and Evidence and Facts rather than attuned to the Art of Mediation.

Christopher Whitelaw

Mediator

This is what now appears on the Federal Government’s new Access to Justice website at www.accesstojustice.gov .au -

“About Access to Justice

Access to justice is not just about courts and lawyers, but is also about better and early access to information and services to help people prevent and resolve disputes.

While courts are an important part of the justice system, there are many situations where other options for resolving a dispute will be faster, cheaper and more suitable in the circumstances. Often a full blown court case will be completely disproportionate to the issues in dispute.

Sometimes, simply having access to good information can help people to resolve their own disputes quickly and effectively. It may also be that parties will have an ongoing relationship after the dispute is resolved, such as a family matter or employment issue, so using a method of alternative dispute resolution that promotes agreement between the parties may be a better option. In complex and entrenched disputes, a court determination may be the most appropriate outcome. ”

This website was launched as part of the Federal Government’s initiative when introducing the Civil Dispute Resolution Bill and providing its response to the Senate Legal and Constitutional Affairs References Committee report “Access to Justice December 2009″.

The time has come for Mediators to ensure that their skills are up to the task so that “access to justice” via Mediation truly succeeds. The extent to which non-mediator lawyers will strongly recommend and endorse Mediation and other “alternative dispute resolution” strategies, including “hybrid ADR” (use of more than one ADR strategy to help successfully resolve a dispute) will correlate directly to their own perception of how well Mediators perform at Mediations.

I am well aware from talking to lawyers in the field, and from my own direct experience appearing for clients at court ordered mediations that many current mediators to whom such disputes are being referred are doing no more than presiding as the host of a settlement conference where the real prospects of success are determined by the willingness and preparedness of the lawyers and the clients to negotiate a settlement before the matter is given a hearing date by case managing judge or registrar.

This is not real mediation. The outcome is hardly ever positively affected or influenced by specific strategies and methods adopted by the mediator to facilitate discussion outside of the tightly fixed boundaries of legal issues, principles and “prospects of success” on each issue determined by the lawyers prior to the so-called “mediation”.

What intrigues me is WHY so many solicitors leave it to the last moment to conduct these settlement negotiations. Why do they feel compelled to require their clients to engage in LITIGATION for many months and run up a legal costs bill of many thousands of dollars BEFORE they say “Lets go to Mediation” before the Judge sets the trial date. The fact is that they could schedule such “hosted settlement conference” (where a mediator is asked to be the host of the settlement conference) or schedule such a conference without asking a mediator to host it MUCH EARLIER and BEFORE a whole heap of legal costs have been run up. By why don’t they?

Here is my theory - Lawyers tend to think like lawyers and their art as “litigators” is to view a dispute through legal eyes and to apply a legal perspective to  it. This legal approach to “dispute analysis”, “dispute management” and “dispute resolution” is almost the antithesis of how a skillful mediator will handle a dispute. As to how a skillful mediator will handle a dispute please refer to many of my earlier posts on this blog.

The current “hosted settlement conference” model of mediation that has taken root in the legal justice system has been created by and developed by lawyers. It is not the model of mediation that is applied by non-lawyer mediators who eschew it. It fits in with the lawyers’ paradigm of how to handle and manage a dispute. They understand “settlement negotiations” as part of handling a dispute. Most of them have not spent a lot of time truly trying to learn the art of mediation and other ADR skills that can be applied to any dispute in its infancy with the aim of resolving the dispute before it gets channelled into the legal domain and becomes “litigation” and subjected to the lawyers’ paradigm of dispute handling, management and resolution.

What the Federal Government wants is EARLY DISPUTE RESOLUTION and a reduction of Litigation and its consequential burden on the Courts, the public purse and on the lives of the litigants.

The bottom line is that part of the formula to achieve this ambition must be to up-skill more lawyers in the true Art of the Mediator, as distinct from the Art of the Lawyer and the Litigation Specialist.

Christopher Whitelaw

Mediator - www.chriswhitelaw.com.au