|
|
|
Preparing for Mediation
by Norman Pickell.
Norman Pickell is a lawyer, mediator and arbitrator based in
Goderich, Ontario.
This is the text of a paper that Norman Pickell presented to
a Canadian Bar Association - Ontario Seminar entitled Mediation: The Next
Generation, held on October 17, 2000.
|
|
Table
of Contents
|
 |
Decide if File Suitable for Mediation
|
|
|
|
|
Setting Up the Mediation
|
|
|
|
|
Legal Advice
|
|
|
|
|
Disclosure
|
|
|
|
|
Preparation of Client
|
|
|
|
|
Mediation Brief
|
|
|
|
|
Opening Statement
|
|
|
|
|
During the Mediation Session
|
|
|
|
|
Reaching Agreement
|
Mediation changes the role of lawyers from adversarial
negotiators to legal consultants. My pleasant task is to help you and your
clients prepare for non-family mediation.
|
|
Decide if File Suitable for Mediation:
The first thing that you as lawyers must do is to discuss
with your clients the pros and cons of mediation for that specific file. As part
of the mediation process, you must understand the central importance of your
client's interests, needs, and participation in the process.
"Interests" are items such as fairness, justice, preserving
relationships, and establishing legal parameters. "Needs" include
minimizing costs, expediting resolution of the problem, paying pending bills,
and ending the emotional drain. Emotional underpinnings must be acknowledged
before clients can begin to rationally address settlement.
Since one of the fundamental principles of mediation is the
concept of self-determination, it is necessary for lawyers to be comfortable
with a more hands-off approach. Lawyers should keep an open mind to creative
agreements and respect their clients' right to determine what works for them.
 Table
of Contents for this article
|
|
Setting Up the Mediation:
Helping your clients choose a mediator is your next
contribution to the mediation process. You should obtain up-to-date résumés from potential mediators. Then, in consultation with your client, you and the
other side need to decide on who the mediator will be. The issues for mediation
will also have to be clarified.
Table
of Contents for this article
|
|
Legal Advice:
The mediator does not provide legal advice to the parties -
even if the mediator is a lawyer. Providing legal advice is your job as lawyers!
Throughout the mediation process, lawyers must advise their
clients on their legal rights and obligations. This involves making your clients
aware of what the best and worst alternatives are to a mediated settlement,
including the length and cost of a trial. Your clients cannot make competent and
informed decisions without sufficient legal advice. Once they know their legal
rights, your clients can agree on anything they want, including agreeing to
something that a court would never order!
Table
of Contents for this article
|
|
Disclosure:
Lawyers need to make sure that they have provided the other
side with all of the material necessary to fully negotiate. Think of disclosure
for mediation as being like the Affidavit of Documents in litigation. You decide
if you are satisfied with the completeness of the disclosure. The mediator does
not make that decision.
Table
of Contents for this article
|
|
Preparation of Client:
Here is a checklist to help you prepare your client for the
process of mediation:
|
|
|
|
tell your client what mediation is; if necessary, ask your mediator for
such information;
|
|
|
|
|
make sure that your client understands the possible benefits of mediation;
again, obtain such information from the mediator if necessary; |
|
|
|
|
tell your client a little bit about the mediator and her/his background;
refer to the mediator's résumé;
|
|
|
|
|
tell your client that the mediator is a neutral person; the mediator is
not a judge or jury; the mediator will not render a decision; the mediator
is trying to facilitate a discussion that will lead to settlement; |
|
|
|
|
make sure that your client realizes that mediation is not binding unless a
settlement is made; |
|
|
|
|
insure that all those who are part of the decision-making will be present
at the mediation session; |
|
|
|
|
tell your client where the mediation session will be held; |
|
|
|
|
give your client an idea of how long the session will last; |
|
|
|
|
find out what your client realistically hopes to achieve throughout the
process; |
|
|
|
|
encourage your client to consider the other party's interests and concerns
before mediation; |
|
|
|
|
make sure your client is prepared for a face-to-face encounter with the
other side;
|
|
|
|
|
make sure your client realizes that she/he will participate in the
discussions in the sessions; |
|
|
|
|
do not prevent your client from talking during the mediation sessions; |
|
|
|
|
help your client articulate his/her needs and concerns during the
sessions; |
|
|
|
|
condition your client to listen carefully, and to listen respectfully to
what the other side says at the mediation session; this means the body
language must also let the other side know that your client is listening; |
|
|
|
|
caution your client to keep an open mind, and to evaluate and re-evaluate
the case as the process goes on; |
|
|
|
|
explain to your client what a caucus is and that there may be caucuses
throughout the mediation session; (sometimes the caucus will involve the
mediator and one of the parties with her/his lawyer; sometimes the caucus
will involve the mediator and all of the lawyers without the clients); |
|
|
|
|
explain to your client what your role as lawyer will be at the mediation; |
|
|
|
|
let your client know that you do not want to turn anybody off or escalate
feelings at the mediation session; |
|
|
|
|
let your client know that you will not be making remarks at the mediation
which are insensitive; |
|
|
|
|
suggest to your client that she/he should express her/his feelings in
joint sessions in a way that will not offend the other party; |
|
|
|
|
let your client know that you will express the legal issues at the
session; |
|
|
|
|
and that your client can express the personal issues (the emotional
undercurrent); |
|
|
|
|
do some brainstorming with your client for possible solutions in advance
of the actual mediation session; let your imagination run wild - even if it
seems like a crazy idea. |
|
Table
of Contents for this article
|
|
Mediation Brief:
The lawyer should prepare a Mediation Brief to give to the
mediator and to the other side in advance of the mediation session.
When preparing the Mediation Brief, you may want to consider
the following checklist:
|
|
be as concise and precise as possible; |
|
|
|
|
identify the Parties; |
|
|
|
|
be objective; |
|
|
|
|
define the issues; |
|
|
|
|
summarize the facts; |
|
|
|
|
do not misrepresent the facts; |
|
|
|
|
summarize the legal issues; |
|
|
|
|
possibly include a copy (or a summary) of the pleadings; |
|
|
|
|
include copies of leading case authorities on the issues; |
|
|
|
|
discuss your strong points; |
|
|
|
|
possibly
discuss your weak points; |
|
|
|
|
set out everything that will be helpful to the mediator in understanding
what the dispute is all about.
|
|
Table
of Contents for this article
|
|
Opening Statement:
The next job for the lawyer is to prepare an Opening
Statement for presentation at the mediation session.
These Opening Statements can take a maximum of 5 to 10
minutes and should be pitched across the table to the other party, and not to
the mediator or to the other lawyer. Please make sure that your client realizes
that there should be no interruptions during the Opening Statements.
For those who like checklists, here is another one to use
when preparing your Opening Statement:
|
|
|
speak to the other party carefully and respectfully; |
|
|
|
|
|
try to be persuasive; |
|
|
|
|
|
avoid legalese; |
|
|
|
|
|
use neutral language |
|
|
|
|
|
don't engage in personal attacks; |
|
|
|
|
|
avoid aggressive opening statements; |
|
|
|
|
|
introduce yourself - humanize yourself; |
|
|
|
|
|
introduce your clients - humanize your clients (to the extent
appropriate); |
|
|
|
|
|
emphasize a belief in the mediation process; |
|
|
|
|
|
acknowledge your client's good faith in mediating; |
|
|
|
|
|
don't conceal issues; (if you do, that may diminish trust between the
parties); |
|
|
|
|
|
state the facts honestly |
|
|
|
|
|
emphasize the risks; |
|
|
|
|
|
use handouts if appropriate |
|
|
|
|
|
include needs and interests of the other party; |
|
|
|
|
|
acknowledge how the other side feels; let them know that you are there to
listen; |
|
|
|
|
|
avoid discussing sensitive, controversial or confrontational issues in the
presence of the other party; leave those for private caucus. |
|
|
|
|
At the conclusion of the other side's Opening Statement, be
prepared for the Mediator to ask you if you have any questions of clarification
about what was said by the other side during his/her Opening Statement.
Table
of Contents for this article
|
|
During the Mediation Session:
Assume that all parties want to settle. Keep a very positive
tone.
Let your client do as much of the talking as possible. This
ability to speak on her/his own behalf can be empowering and can go a long way
to facilitate the parties' ongoing communications, if that is needed.
It is very important for you, the lawyer, to listen when your
client is speaking to make sure that you understand your client's current goals
and priorities. It is also important for you to listen for new information when
the other side speaks. Listening is shown in several ways, including body
language.
You should focus on finding creative solutions that meet the
needs of both sides. Avoid thinking strictly in terms of "legal
precedents" or what the law provides for.
Don't rush the process. Sometimes the parties need time to
vent. Sometimes they need time to change opinions and positions that have been
held for a long time.
If an impasse is reached, there are several things that you
as the lawyer can do to assist the process:
|
|
|
you can review the strengths and weaknesses of your client's position in
view of any new information which has been learned during the mediation
session; |
|
|
|
|
|
you can assess your client's psychological readiness to negotiate; |
|
|
|
|
|
you can help your client articulate his/her needs and concerns during the
mediation; |
|
|
|
|
|
you can encourage your client to consider the other party's interests and
concerns in caucus, once the other side has presented their perspective on
the situation; |
|
|
|
|
|
in some situations you may want to examine your own attitude about the
case, the client and the other lawyer to see if your are in any way
contributing to the impasse; |
|
|
|
|
|
if all else fails, you can agree to adjourn the mediation to a future
fixed date; maybe someone will come up with a new idea in the meantime. |
|
Sometimes non-family mediations take more than one session to
complete.
Table
of Contents for this article
Reaching Agreement:
The key to reaching an agreement in mediation is to be on the
lookout for creative solutions. Do not assume that the only way to settle a
dispute is with money. Look for other things that can be put on the table, such
as an apology (either private or public), or an indication that things have
changed so that history will not repeat itself. One of the principal advantages
of mediation is that the parties can come to an agreement that is much different
than what a court would order.
Once a settlement is reached, the Agreement or Minutes of
Settlement will be prepared by the lawyers, reviewed with your respective
clients and signed.
Top
For more information on Mediation click
here.
|
|
|
|
|
Back to
