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

Have you heard of “EndDispute”?

EndDispute is a good example of the corporate world looking after its own best interests. Commercial disputes are said to be on the rise and both governments and courts and corporate clients are more and more looking to alternatives to traditional litigation to reduce the cost of accessing and administering justice.

EndDispute was recently launched (early May 09) by former chief judge of the NSW Supreme Court Commercial Division Andrew Rogers QC along with ADR expert and academic Tania Sourdin and former Chair of Dibbs Barker Gosling, Peter Everett.

The founders have said in media reports that they decided to take the initiative and launch the new dispute resolution centre as a response to the massive legal costs generated in prolonged commercial litigation like the recent C7 case. It was also a response bred out of building frustration with court-annexed ADR that has a heavy focus on mediation and arbitration and lacks flexibility to cater to the needs of commerical disputes.

EndDispute will take on the full management of the ADR process OUTSIDE of the court processes and will address all the possible issues in a commerical dispute such as discovery, negotiation, neutral evaluation of discreet issues in the dispute, expert determination of some issues, mini-trials to dispose of some issues but relying only on documents submitted by the involved parties.

The founders have stated THE WHOLE CONCEPT IS FITTING THE METHOD AND THE FACILITATOR TO THE DISPUTE. They will seek to make more effective use of the whole range and scope of ADR technologies and resources.

This is a top end of town corporate response to the inadequacies and failings of the present court annexed ADR machinery. The current system has become too rigid and narrowly focused on both court appointed mediators and private mediators simply attempting to settle disputes by doing not much more than hosting an expensive settlement conference between the parties and their lawyers. Some ex judges have become very good at applying pressure to bring the parties to a final resolution but many fail to do justice to the full potential of skilfully and strategically applied ADR methodologies and simply preside over a hosted settlement conference acting as a shuttle service between the two camps after they bunker down in their respective rooms and commence the very linear and uncreative process of simply conveying messages to each other via the agency of the mediator.

There are far more and better ways that a skillful and proactive ADR practitioner can assist disputants to find a pathway to resolution of a dispute.

This National Dispute Resolver Blog will hopefully become a place where players in the justice system can openly debate and discuss what works and what does not work in different situations and sets of circumstances. Hopefully it will become a place where they can swap stories and provide valuable insights to each other. Why keeping winning strategies to yourself? Why not publish them here and by doing so help other ADR practitioners to lift their game and thereby deliver more value to their clients.

To Your Success!

Christopher Whitelaw