As many of you will now know the Federal Attorney General recently introduced the Civil Dispute Resolution Bill 2010. If made into law the Act will require prospective litigants to take “genuine steps” to resolve their legal disputes before they will permitted through the gates by the case managing judge to continue their litigation war. They will need to detail what steps they have genuinely taken to resolve their dispute out of court and without resort to litigation.

This new law will herald a new dawn for mediators and mediation. We need to be ready. In my view the new law, if enacted, is heading in the right direction.

A few days ago I successfully resolved a dispute between two business people who had done business together for over 10 years before falling out during the Global Financial Crisis. They were clearly heading down the path of litigation and if not averted could have looked forward to over 12 months of fun in the courts and probably both ended up over $100,000 each out of pocket. That is nothing unusual in commercial litigation arising out of a broken business relationship.

The two parties, and their lawyers, opted into my strict protocol for dispute resolution that covers both things to be done BEFORE mediation as well as at the Mediation.

The Mediation went to about 3pm. Settlement was accomplished and the parties were able to return to the Joint Session Room and sit opposite each other and shake hands.

This is what Mediation is all about. The path to success in Mediation is entirely different to the path to success in Litigation. In Mediation it is often the case that parties can be reconciled as well as settle their dispute. This hardly ever happens when people go down the path of Litigation.

In my next post I will provide some examples of “genuine steps” to resolve a legal dispute.

Until then…..Christopher Whitelaw

Mediator

This is my last installment on what I learned listening to David Richbell at an advanced mediation workshop in Sydney.

David said that the mediator needs to keep asking the question “Why is there a gap that is blocking the parties getting to Yes and Settlement of the dispute”? The Mediator needs to keep exploring what each party needs to achieve to close the gap and open the door to settlement.

If the Mediator does not work out what each party needs then it is not possible for him to go to work to close the gap.

If both parties have come to the mediation with a genuine desire to do a deal then the mediator’s task is to flush out what has to happen to get each party to Yes on a deal each can live with. The mediator’s job is to coach each party towards Yes by identifying and dispelling misconceptions and invalid assumptions that are getting in the  way of forward movement towards a deal.

The Mediator can apply his skills to “re-frame” words used in any offer or counter offer to make it easier to extract a response that moves the a bit closer.

The Mediator can use techniques like hypotheticals and reality testing to create impetus when a party is blocked or stuck. She can assist in constructing offers that have a better chance of success.

The mantra to keep putting in each party’s mind is “What deal can you live with?” and contrasting that with the litigation alternative with all its uncertainties and risks.

In a future blog post I will be putting up a whole list of MEDIATOR CHALLENGES that have been put together by MATA (Mediation and Training Alternatives) and invite you to ADD TO THIS LIST drawing on your own experiences OR to post a COMMENT outlining any personal experience you have had with one of these Challenges (or some challenge not included in the List) and how you personally dealt with it.

Cheers

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