I continue to report what David Richbell said to a group of barrister mediators at a recent advanced mediator workshop in Sydney .

OPENING SESSION

He said that the opening session was the “key to success”. It provided an opportunity for each side to see first hand the other parties feelings and emotions. He said that his opening sessions quite often lasted for 2-3 hours before he let the parties move into separate rooms to commence the next phase of the process of exploring the issues to search for common ground that might open up space for a resolution of the dispute.

He acknowledges that very often it is the party’s lawyer that commences with an opening statement and this usually puts forward a legal perspective of the facts and issues. In my prior blog post I mentioned that in David’s view very few disputes are ever settled by focusing on the legal issues. He encourages the parties to start telling their own story in their own words. He needs at least 1-2 hours doing this to break down the barriers that are there at the start and when that happens the REAL ISSUES start to emerge. He strives to get to this point BEFORE he allow the parties to break into private session.

PRE- MEDIATION MEETINGS

He said that he was astonished that some mediators do not insist on having pre-mediation meetings and come to the mediation cold without having at least met the parties representatives. He uses the pre-mediation meeting to review the mediation agreement, to discuss the rules to apply at the mediation and to obtain the parties and their representatives agreement to those rules so that during the mediation is is much easier for him to bring anyone into line if they are deviating from or not complying with the spirit of those rules, stressing the importance of each party telling his or her story, helping them settle down into the spirit of the mediation process and letting them know more about him and getting them comfortable with him in his facilitative role.

LAWYERS INVOLVEMENT  CAN HINDER

He makes the point that some lawyers who are not well versed in ADR philosophy seek to restrict what their clients say at the mediation thinking that by doing so they are protecting their client’s interests and enhancing their prospects to get a good outcome. He says that this is usually misguided thinking bread out of fear that if they allow their client to talk openly that the other party will turn that against them.

David says that he always tries to find opportunities to hold private talks with each party to find out what each really wants and what it would take for him or her to do a deal. He also holds private, off the record, meetings with each party’s legal representative.

He points out that a well WELL PREPARED mediator has far more knowledge and insight into the whole dispute than probably anyone else attending the mediation It is a very powerful and responsible position and the mediator needs to apply this strategically and effectively to help move the parties towards the “reasonable zone” where deals become possible.

I will bring up some more points gained from David Richbell’s presentation in my next blog post.

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Christopher Whitelaw

I had the great pleasure yesterday of attending an advanced Mediation Workshop hosted by the New South Wales Bar Association and hearing UK Mediator David Richbell present as a keynote speaker. David Richbell is one of the UK’s most experienced and highly regarded mediators and the founder of the UK based organisation, MATA (Mediation and Training Alternatives). He is regarded by many as a leading mentor for UK mediators. He is also a member of CEDAR (Centre for Effective Dispute Resolution).

The workshop benefited from great presentations from other prominent mediators such as Angela Bowne SC, John West QC, Peter Callaghan SC, Joanna Kalowski, Campbell Bridge SC and Richard Bell.

Something that was unique about David Richbell at this workshop was  that he was the only NON-LAWYER Mediator in the room. So what I want to do in this blog post is to give you a summary of some of the wonderful insights gained at this mediation workshop from a highly respected non-lawyer mediator.

David started off by making it clear that what he was going to say would come from a commercial or business perspective not from a lawyer’s or legal perspective. He says that lawyers tend to focus on the law and legal issues - but disputes are never settled at mediation by reference to the law or legal issues. They are resolved by focusing on the clients’ commercial imperatives - which are usually entirely different from the legal issues.

This is of course a highly relevant point for lawyers and lawyer -mediators to pay attention to. David mentioned that about 86% of commercial mediators in the UK are now lawyers (solicitors, barristers and former judges). I am not sure what the percentage is in Australia but it would be a similarly high percentage.

I should note here that David stated at the outset that he worked almost exclusively as a mediator in commercial disputes. The chief issue at such mediations was money and how much money a party was to pay another party to settle the dispute. In such mediations the parties main need is that the dispute be resolved as quickly as possible so that they can get back to business as usual. The parties come to a mediation with an unresolved problem and want they look to the mediator to do is help them dispose of that problem.

He observed that lawyers need to more skillfully manage the process of diffusing the initial volatile attitude of “I want justice by any means” and moving towards “What would it take for you to settle this dispute and get it out of the way” or “What sort of deal could you live with?” The lawyer that lacks alternative dispute resolution training and consciousness will latch on to the initial cry for blood and justice and quickly channel the client into full scale litigation and it is only after months of litigation and legal bills that the same client starts to feel battle fatigue and starts to be receptive to alternative, less combative and confrontational means to resolve the dispute. David says that all too often this is the state that both parties are in when they are brought to him in his role as mediator.

David is all for early attempts to bring disputing parties to mediation even if this means that each side has to spend more time and more money up front to make the dispute ready to go to mediation. Usually it will be worth the effort and expense.

He says the first key question to be asking if you are advising one of the parties to a dispute is “What is the most appropriate strategy to apply to this case?” ADR (Alternative Dispute Resolution) is all about being flexible in its methodology that it brings to the art of dispute resolution. This is in contrast to legal methodologies that are quite inflexible and arbitrary. ADR methodology does not approach a dispute from a stance of who or what is right or wrong. It commences with the stance that every dispute can accommodate a variety of perspectives that are valid in the mind of different persons engaged in the dispute. From an ADR stance the legal approach rarely leads to “justice” and more often than not there is no real winner.

ADR is about looking for “the deal” that all parties can feel that they can sign up to. The commercial perspective is always about getting to Yes (Deal) or No (No Deal) during the entire process. The hunt is for breakthroughs to the stumbling blocks and to solutions to the problems. The mediator is all the time time looking to bring the parties from their initial  confrontational and positional “insult zone” to common ground and  the “reasonable zone” in which a deal of some sort becomes possible.

David says that he sees his role as being “I am here to give you the best chance to find a deal you can live with and I will do my utmost to help you find that deal”. Equally, he takes the position that if he has done his job well and no deal is found responsibility lies with the parties.

David made it clear that mediations are the right place to allow parties to express their emotions and to tell their stories as they see it - and they need to be given the opportunity (if the mediator can manage it) to move them out of being strictly managed and controlled by their lawyers who often, out of misguided legal concerns about their clients best interests in ongoing court litigation, will try and limit and restrict what comes out of their mouths at mediations.

He says that a key role of the mediator is to facilitate negotiation between the parties and between the parties lawyers. The following are the chief phases of ADR applied to a dispute -

• Preparation (before mediation commences)
• The Opening Session (parties are face to face in main room)
• Exploring the facts and issues to find out as much as possible about what the parties needs are
• Facilitated Negotiation
• Concluding the process (Getting to Yes)

Each of these 5 Steps is equally critical to securing a good outcome.

This is just to give you some of the flavour of what was said by David Richbell and I will, for time reasons, conclude this post at this point of my summary.

If you are interested to hear more about what he said please keep your eye out for the next post, or better still, click on the RSS feed icon on this page and subscribe to the feed which will then automatically notify you when anything new appears on this blog.

As always your comments and observations would be much appreciated. At the end of every post you will see the word Comment and if there are any comments already there it will tell you how many. But if there aren’t any it will simply say Nil Comments. Just click on the word comment and a box will open up right under that post to allow you to write in your comment or reply to the post. You then submit it and in a day or so it will appear live on the blog for others to read and comment on if they choose.

Cheers,

Christopher Whitelaw

Negotiation is often the first critical step in the process of trying to settle a dispute in an effort to avoid the prospect of litigation. Negotiation is not something reserved for lawyers or for dispute resolvers working on behalf of a client. Anyone can be a negotiator on their own behalf. Good negotiators stand a better chance of resolving their own disputes without any need to engage a trained and skilled negotiator to assist them. So the art of skillful negotiation is probably a very valuable skill for anyone to acquire. It can pay big dividends by giving a person a much better chance than most to resolve their dispute without threat of huge expense and expenditure of time and energy.

Are lawyers necessarily good at negotiation? Absolutely not. Probably only a very small percentage of all lawyers are skillful negotiators. Why? Because negotiation is not a core skill taught at our law schools, because it is not considered a legal skill. If you want to learn about negotiation you need to enroll in a dispute resolution course as an extra curricula subject or attend various negotiation skills workshops.

So what does this mean for members of the public who regularly bring their disputes to lawyers to help them resolve them in the quickest and most efficient way possible? It means that most lawyers, as currently educated and trained, will more often than not fail to increase the prospects of early settlement of the dispute as a direct result of their negotiation skills. If they do manage to achieve early resolution of the dispute it will often be more due to luck or fluke than to their skill as a negotiator. Furthermore, the settlement ‘negotiated’ by the lawyer may a far poorer settlement than might have been obtained for that client by a well trained negotiator.

I make mention of these matters because negotiation and settlement of disputes is now regarded by the courts and by the laws that govern all lawyers as a core skill in the practice of law concerning disputes and litigation. These days the courts and tribunals actively encourage settlement of most types of dispute.

Rule 74 of the NSW Barristers’ Rules states that among the work to be performed by a barrister is “negotiating for the client with the opponent to compromise the case and representing the client in a mediation.” Rule 16 of the same Rules contains a general obligation to advance and protect the client’s interest to the best of the barrister’s skill and diligence.

Rule 17A states that a barrister must inform the client or the instructing solicitor about the alternatives to the fully contested adjudication of the case which are reasonably available to the client.

So, I ask rhetorically, how is this barrister to do all this if he or she has never been fully trained and educated in the art and skills of effective negotiation? The same thing applies to attorney solicitors.

These days most barristers and solicitors are well aware of their duty and obligation in this regard owed to a client. They are also well aware of the fact that they can, if they wish, enroll in any number of quality courses or workshops that train lawyers to be good negotiators.

But the question I raise in this blog post is what should a barrister or solicitor tell their client who comes to them expecting to be ably represented at ALL STAGES of the life of the dispute , and to have that lawyer’s duty and obligation properly discharged so as to protect the client’s interest, IF that lawyer knows that he or she is not properly trained in the art of negotiation?

What do you think?

For those of you who read this blog post and are not a lawyer or a dispute resolver expert - now that you have read what I have written - how do you feel that you can better protect your own interests if you go to engage the services of a lawyer to help you resolve a dispute in the best possible way, in the shortest time possible and in the least expensive way consistent with skillful representation?

You may now feel that you can ably converse with that lawyer to satisfy yourself that he or she is sufficiently qualified to discharge that legal obligation to you and maximize your chances of early settlement and minimize the risk of your lawyer manoeuvring you too fast towards litigious means and strategies to resolve your dispute in the courts. You may find that this blog post empowers you to remain in control of your dispute by being equipped at the first level of interaction with lawyers to find yourself the right lawyer to suit your needs.

Christopher Whitelaw