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