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LAWS2371 Resolving Civil Disputes

Mediation
What is mediation?

NADRAC: Mediation is a process in which the parties to a dispute, with the


assistance of the dispute resolution practitioner (mediator), identify the
disputed issues, develop options, consider alternatives and endeavour to
reach an agreement
The mediator has no advisory or determinative role in relation to the
content of the dispute or the outcome of its resolution. But may advise or
determine the process of mediation

Defining mediation

the mediator has a facilitative role


the mediator may not be an expert in the subject matter of the dispute,
but should be experienced in the mediation process
CPA 2005: a structured negotiation process in which the mediation as a
neutral and independent party
Mediations can vary significantly according to the substance of the
dispute, the parties to the mediation and the circumstances
The mediator manages the flow and process of the mediation

Mediation model
1. Pre-mediation
2. Exploring and defining the problem
Mediators opening statement
Parties statement and mediators summary
Identify matters for discussion
Explore and define problem
3. Separate sessions
4. Negotiation and solution
Generate/mutually explore options
Evaluate options and
5. Post mediation
Preparing for mediation
1. Screening or intake interview formal or informal process to determine
whether the matter is suitable for mediation
2. Preliminary/pre-mediation conference
To prepare the parties and their representatives for what will happen at
the mediation and how it will be conducted
Opportunity to detect potential barriers to an effective mediation eg
need for interpreter, hostility
3. Benefits: gain confidence in the process, create environment which
encourages appropriate behaviour
4. Challenges: dont want mediator to develop their own view of the case
In preparing the mediator may consider

What has prevented the parties settling the matter?


What are the broad issues involved?
What action has already been taken to resolve the problem?
What is the history of the dispute?
What is the relationship of the parties to each other?
Why has the dispute arisen?
Who are they key stakeholders?

Position paper

A position paper is usually prepared by each party in the preparation for


the mediation
It sets out the factual and legal position of the party
May be exchanged prior to or at the mediation
Opportunity for each party to address the decision maker of the other
party
Sets out the negotiating position as seen by each party

The mediation begins


1. Mediators opening statement
Establish authority over process
Demonstrate neutrality and impartiality
Introduction, explain process and roles
Sign agreement to mediate
Confidentiality
Set ground rules
2. Parties opening statements
Overview of what brought the party here to mediation
Allow each party same length of time
3. Mediators summary
Summarise the main points
Reflect back accurately but neutrally
Check with parties that it has been accurate
summary only
Identify issues

Mediator should be now in position to list identified issues that are mutual
to the parties
Clarifies and structures the dispute
Breaks the dispute into manageable pieces which may reduce
overwhelming feeling
Assist parties to see a pathway through the dispute
Assist parties to see progress made
Reframe issues in a neutral fashion
Mutualise issues and find common ground

Exploring issues and define the problem

Facilitate discussion
Mediator should decide which point to start on what happened

Clarify and confirm facts


Manage emotions
Identify needs and interests underpinning the positions of the parties
Focus on interest-based negotiation
Assist with improving communication

Separate/private sessions

o
o
o
o
o
o
o

Mediator meets separately with each party


Confidential unless expressly permitted to reveal information
Separate sessions are conducted fairly and equally
Purpose to :
Explore issues privately
Reality test positions
Reduce tension
Manage emotion
Assist parties to process decisions
Explore BATNA and WATNA
Assist parties in negotiating and communicating techniques

Risks involved in separate sessions

Maintain neutrality and be careful not to become advocate for one party
May become aware of important information that the party will not reveal
to the other party hampering resolution
Chance of being pressured to take one partys side
Disclosure of unethical or illegal activity

Option generation

Can suggest options


Preferable though if parties generate options on their own indicates that
will be committed to working out a solution
Look to needs/interests/objectives of the parties and how to meet them
Look at what happened, where did it go wrong, what worked, what didnt
work, how could it be improved, brainstorm
Careful if mediator suggests options that it is not biased
Cost benefit analysis how much will it cost win/lose?

Evaluating the options

Is the option going to work? Feasible in the circumstances with regard to


history of parties?
Reality resting
What is time frame? Realistic?
What resources will be used?
If it involves payment of money how much, by whom, when,
consequences of failure to deliver on time?

Agreement

If agreement reached, recorded in writing and signed by parties, their


legal representatives and the mediator

Agreement is binding on parties


Documents may need to be filed in court if there is any litigation on foot,
in order to finalise and end litigation

Role of legal representative

Outline what is expected of parties and role of mediator


Explain the philosophy and objectives of mediation structure negotiation,
role
Establish the degree of involvement in the mediation
Understand the dispute, the clients interest and needs and what is
necessary to satisfy those interests and needs what lies behind dispute?
Client needs/wants
Assist the client to formulate creative solutions not necessarily legal
solutions
Advise client of the likely best and worst outcomes if the dispute does not
resolve at mediation determined by court
BATNA best alternative to negotiated agreement, best outcome that
could be delivered by court/tribunal/arbitrator if not resolved at mediation
WATNA worst alternative to negotiated agreement, worst outcome that
could be delivered by court/tribunal/arbitrator if not resolved at mediation
Lawyer may need to play Devils Advocate
Lawyer needs to understand legal issues, factual issues, evidence
required, expert opinions, prospects of success, hurdles to enforcement,
costs to date, costs payable in even of loss, costs recoverable in event of
success
Act as advocate for client
Prepare the client for resolution at mediation accept certainty involved in
mediated agreement v pursue litigation, which encompasses cast
uncertainties
Represent their client to make sure they obtain best possible outcome
Record in writing any agreement

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