This is the third installment reporting what I learned from David RIchbell at a recent advanced mediators workshop in Sydney.

PRIVATE SESSIONS AND TIMETABLING

David says that the “exploration” carried out in private sessions is a critical part of the “finding the deal” during a mediation.

Timetabling is important, especially if there are multi parties involved. David lets other parties know how much time he will be spending with each party through the day so that they can plan their own time effectively.

He says that many mediations will conclude in a day running from about 9 am to 6 pm. The objective is to try to materialize the deal by 4 pm so that the lawyers have time to get the agreement drawn up and documented by 6 pm.

Exploration is all about trying to understand what the parties need to reach a settlement that they can both live with. You are looking for their “drivers”.

The mediator knows that there is a big difference between NEEDS and WANTS. Disputes get settled by identifying each parties core needs.

When the exploration in private sessions has flushed out the core needs and the parties have moved from the Extreme polarized zone to the Reasonable Zone where a deal can be struck he then moves them back to OPEN SESSION so that they can take full ownership of the deal that is emerging.

When the deal is done and the lawyers have prepared the agreement for signature by the parties he usually concludes the mediation with some drinks so that the parties, who are probably feeling quite relieved to have ended their dispute, have the opportunity before they leave to try and repair their relationship.

In my next part of this series on David Richbell I will tell you what he said about “Closing the Gap”.

Again, I remind you, this blog is a forum for open discussion about the content of each blog post. My role is simply to get the issues out there and encourage discussion and sharing of experience for the benefit of all. Anyone with something interesting to say can take part in this.

Christopher Whitelaw

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.

As always I invite any visitor to this blog site to consider the content of the post and offer their own personal insights and observations by submitting a comment to be published on this blog. Just scroll down to where you see the invitation to submit your comment and please don’t forget to hit the submit button.

Christopher Whitelaw