1. 1 Mediation Skills for Lawyers Margaret Halsmith Principal Mediator, Halsmith Dispute Resolution

2. 2 Law Society WA © Halsmith Consulting Pty Ltd 2013 Overview What is Mediation? How mediation is conducted Role of lawyers Mediation skills for lawyers

3. 3 Law Society WA © Halsmith Consulting Pty Ltd 2013 What is Mediation? Participant A, Participant B etc Dispute

4. What is not mediation? Party A v Party B © Halsmith Consulting Pty Ltd 2013 Law Society WA © Halsmith Consulting Pty Ltd 2013

5. What is mediation? Party A + Party B v issues © Halsmith Consulting Pty Ltd 2013 Law Society WA © Halsmith Consulting Pty Ltd 2013

6. Mediation or not? © Halsmith Consulting Pty Ltd 2013 Non-zero sum negotiation Party A + Party B v issues Law Society WA © Halsmith Consulting Pty Ltd 2013 Zero sum negotiation Party A v Party B

7. Mediation on Twitter @HalsmithDisRes © Halsmith Consulting Pty Ltd 2013 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. Law Society WA © Halsmith Consulting Pty Ltd 2013

8. 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 Law Society WA © Halsmith Consulting Pty Ltd 2013

9. 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 Law Society WA © Halsmith Consulting Pty Ltd 2013

10. 10 Law Society WA © Halsmith Consulting Pty Ltd 2013 t How Mediation is conducted Participants: substantive responsibilities Mediator: procedural responsibilities Lawyers: substantive advisory & consultant responsibilities

11. 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 Law Society WA © Halsmith Consulting Pty Ltd 2013

12. 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 Law Society WA © Halsmith Consulting Pty Ltd 2013

13. 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 Law Society WA © Halsmith Consulting Pty Ltd 2013

14. 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 Law Society WA © Halsmith Consulting Pty Ltd 2013

15. 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 Law Society WA © Halsmith Consulting Pty Ltd 2013

16. 16 Law Society WA © Halsmith Consulting Pty Ltd 2013 t Role of lawyers Take instructions from client Trusted advisor to client Champion of the process Consultant to all

17. 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 WolskiBobette Wolski Law Society WA © Halsmith Consulting Pty Ltd 2013

18. 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 Law Society WA © Halsmith Consulting Pty Ltd 2013

19. Attributes of the trusted advisor Transparency Commonality Respect Caring Credibility Reliability Law Society WA © Halsmith Consulting Pty Ltd 2013

20. 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 Law Society WA © Halsmith Consulting Pty Ltd 2013

21. 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 Law Society WA © Halsmith Consulting Pty Ltd 2013

22. 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 Law Society WA © Halsmith Consulting Pty Ltd 2013

23. Participants’ roles © Halsmith Consulting Pty Ltd 2013 Law Society WA © Halsmith Consulting Pty Ltd 2013

24. 24 Law Society WA © Halsmith Consulting Pty Ltd 2013 t Mediation skills for lawyers Putting the principles and process into practice

25. Listen assiduously for concerns & assist your client to listen generously © Halsmith Consulting Pty Ltd 2013 Law Society WA © Halsmith Consulting Pty Ltd 2013 for interests for possibilities for acknowledgement for recognition for the future for respect for responsibility accepted for collective strengths

26. Think creatively & assist your client to think productively © Halsmith Consulting Pty Ltd 2013 Law Society WA © Halsmith Consulting Pty Ltd 2013 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

27. Speak optimistically & assist your client to speak moderately © Halsmith Consulting Pty Ltd 2013 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

28. Decide credibly & assist your client to decide wisely © Halsmith Consulting Pty Ltd 2013 sustainably practically holistically with dignity collectively lawfully based on reason & emotion Law Society WA © Halsmith Consulting Pty Ltd 2013

29. Recognise the conclusion & assist your client to conclude satisfactorily © Halsmith Consulting Pty Ltd 2013 mutually satisfactory generous at the end durable practical Law Society WA © Halsmith Consulting Pty Ltd 2013

30. 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 Law Society WA © Halsmith Consulting Pty Ltd 2013

31. Mediation Mediation is parties’ participation in the facilitated shift from self interest to joint interests in order to meet self interests. © Halsmith Consulting Pty Ltd 2013 Skills = manifestation of role Role = to enhance the practice Practice = principles + process Law Society WA © Halsmith Consulting Pty Ltd 2013

32. 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/