1 mediation skills for lawyers margaret halsmith principal mediator, halsmith dispute resolution

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Mediation Skills for LawyersMargaret Halsmith

Principal Mediator, Halsmith Dispute Resolution

2 Law Society WA© Halsmith Consulting Pty Ltd 2013

Overview

What is Mediation?How mediation is conducted

Role of lawyersMediation skills for lawyers


What is Mediation?Participant A, Participant B etc Dispute

What is not mediation? Party A v Party B

© Halsmith Consulting Pty Ltd 2013

Law Society WA© Halsmith Consulting Pty Ltd 2013

What is mediation? Party A + Party B v issues



Mediation or not?© Halsmith Consulting Pty Ltd 2013

• Non-zero sum negotiation• Party A + Party B v issues


• Zero sum negotiation• Party A v Party B

Mediation on Twitter@HalsmithDisRes


• Mediation is parties’ participation in the facilitated shift – from competitive entitlement and authority – to cooperative problem-solving.

• Mediation is parties’ participation in the facilitated shift – from a power struggle and clash of rights – to a melding of interests.

• Mediation is parties’ participation in the facilitated shift – from self interest – to joint interests in order to meet self interests.


How do you know you are at a mediation?

You and all others

• interact soft on the people; hard on the problem• negotiate on interests; not on positions• create options; not offers• use objective standards; not arbitrary ones• have a goal of a fair outcome for all• agree on the basis of agreed principles• proceed independently of trust

Adapted from Fisher, Ury & Patten


How do you know you are not at a mediation?

You or any of the other participants

• interact hard on the people; hard on the problem• negotiate from positions; not on interests• create offers; not options• use created standards; not objective ones• have a goal: to win or for TOS to acquiesce• apply pressure or concede to pressure• distrust others or rely on trust

Adapted from Fisher, Ury & Patten



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How Mediation is conductedParticipants: substantive responsibilities

Mediator: procedural responsibilitiesLawyers: substantive advisory & consultant responsibilities

Mediation Stages

• Separate sessions [SS]• Welcome• Mediator’s opening• Participants’ openings• Mediator summaries• Agenda• Clarify & Explore• Option generation• Separate sessions• Option reality testing• Negotiation• Recording decisions• Closure

SS

SS SS

SS


Purpose of the stages of mediation

• Separate sessions: – to assess for suitability and safety; to prepare including analyse and

diagnose• Mediator’s opening:

– to develop participants’ confidence; to maintain transparency• Participants’ openings:

– to hear participants’ concerns, each equally significant• Mediator’s summary:

– to acknowledge participants; parties to hear themselves and each other

• Agenda: – to provide structure and focus


Purpose of the stages of mediation

• Clarification and information gathering: – to broaden parties’ understanding of the issues: to frame the issues in terms

of interests• Private sessions:

– to check on participants’ experiences of mediation; to prepare for next phase• Option generation:

– to identify broad range of potential components of an agreement• Option reality testing:

– to test options for practicality• Agreement:

– to confirm and document agreement if any, as appropriate• Closure:

– to ensure loose ends are addressed


Q: How do you know you are at a mediation? A: Principled process

• Interests focused• Inclusive• Value creating• Voluntary, consensual• Flexibility• Participatory• Informal• Norm creating• Cooperative

• Situational, individualised• Person-centred• Relationship oriented• Future focussed• Peer-based• Private, confidential• Network• Process focussed• Parties as decision makers

after Boulle 2005


Q: How do you know you are not at mediation? A: Strategies and tactics

• Ambit claim• Low balling• Split the difference• Delay• Deadline• Attrition• Persistence• Shift focus• Capitulation

• Act inconsistently• Boredom• Laughing• Playing to the gallery• Refuse to negotiate• Take it or leave it• Overload• Lock in• Walk out



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Role of lawyersTake instructions from client

Trusted advisor to clientChampion of the process

Consultant to all

Wolski: the role of the lawyer in mediation

• Advise clients of the law that applies• Provide legal information [information maximisers]• Encourage client to look at own & broader interests• Generate options to meet broader interests• Evaluate options from point of view of client and others• Evaluate the merits of the case• Project likely results in an adversarial setting• Assess the likely litigated outcome• Protect client against unfairness• Promote informed consent• Guide toward responsible decision making

Adapted from Bobette Wolski


http://epublications.bond.edu.au/theses/51/




Lawyers as trusted advisors© Halsmith Consulting Pty Ltd 2013

• Listen assiduously for what is of concern and important• Think creatively to identify core issues and later to contribute options and

to improvise• Speak optimistically about key issues, responsibilities and the future • Advise credibly when considering impacts and assessing risk; provide legal

information • Conclude satisfactorily from client’s POV; commit to actionable steps


Attributes of the trusted advisor

• Transparency• Commonality• Respect• Caring• Credibility• Reliability


Lawyers as champions of the process

• Separate sessions [SS]• Welcome• Mediator’s opening• Participants’ openings• Mediator summaries• Agenda• Clarify & Explore• Option generation• Separate sessions• Option reality testing• Negotiation• Recording decisions• Closure

SS

SS SS

SS


Lawyers as consultant to all

• Principles of mediation– Know them– Understand them– Analyse them to recognise them in their many forms– Apply them in all aspects of each mediation

• Process of mediation– Know it– Understand it in terms of the principles

• Practice of mediation– Apply skills within the framework of the process


Participants’ roles© Halsmith Consulting Pty Ltd 2013

• Listen generously– 60%+ air time– Focus on the future

• Think productively– Persevere through short

backslides– Remain open to changing

point of view– Participate in good faith

• Speak moderately– Contribute information and

opinions• Decide wisely

– Make substantive decisions• Conclude satisfactorily

– Respectfully– Maintain confidentiality



tMediation skills for lawyers

Putting the principles and process into practice

Listen assiduously for concerns & assist your client to listen generously



• for interests• for possibilities• for acknowledgement• for recognition• for the future• for respect• for responsibility accepted• for collective strengths

Think creatively & assist your client to think productively



• to add value • to tolerate uncertainty• to embrace inconsistencies• to see holistic POV• about the future • to share responsibility• to imagine options• to explore ATNAs• to diverge• toward optimism

Speak optimistically & assist your client to speak moderately


• for themselves• with positive or neutral

attributions• with curiosity • open questions• informally• referring to ‘what’s important’• acknowledging the other• recognising responsibility of client• to explain how they agree • parties 60% air time; mediator

25% Law Society WA© Halsmith Consulting Pty Ltd 2013

Decide credibly & assist your client to decide wisely


• sustainably• practically• holistically• with dignity• collectively • lawfully • based on reason & emotion


Recognise the conclusion & assist your client to conclude satisfactorily


• mutually satisfactory• generous at the end• durable• practical


Mediation is facilitated strategic planning in a brief structured solution-focused process@HalsmithDisRes© Halsmith Consulting Pty Ltd 2013

in which all• Listen generously for what

matters underneath positions• Think creatively of blue skies• Speak moderately leaving

space for dignified change of point of view

• Decide wisely at each stage of the process

• Conclude satisfactorily for participants


Mediation

Mediation is parties’ participation in the facilitated shift from self interest to joint interests in order to meet self interests.


Skills = manifestation of roleRole = to enhance the practicePractice = principles + process


Law Society WA © Halsmith Consulting Pty Ltd 2013

Thanks to Felicita Sala for the use of her illustration throughout this presentation.

http://felicitasala.blogspot.com.au/

1 mediation skills for lawyers margaret halsmith principal mediator, halsmith dispute resolution

Documents

party b slide

dispute slide

participants parties

sum negotiation party

participants confidence

participant b

parties participation

self interests