1. Preparation/Pre-Mediation Learn about the case and the parties
Managing Parties and Party Representatives in Mediation: Tools for Lawyer and Non-lawyer Mediators
Preparation/Pre-Mediation
Learn about the case and the parties
Prepare a proper mediation agreement
Confidentiality
Privilege
Exclusion of Liability
Provide standards/guidelines to the parties and representatives
Use pre-mediation conferences to educate party representatives on
Mediation and mediation advocacy, especially the differences with adversarial processes
the Advantages and opportunities of mediation
Know your client. Know your Arbitrator.
Know your party advocates
RI med agreement
Authority
Each party must be represented at the Mediation conference by a person or persons having or able during the course of the mediation to obtain authority to settle the Dispute.
Confidentiality
The Parties and the Mediator will not unless required by law to do so, disclose to any person not present at the Mediation, nor use, any confidential information furnished during the Mediation unless such disclosure is to obtain professional advice or is to a person within that Party’s legitimate field of intimacy, and the person to whom the disclosure is made is advised that the confidential information is confidential.
Non- parties:
14. Any persons other than the Parties (including legally qualified persons) attending the Mediation to assist and advise a Party in the Mediation shall sign an acknowledgement and undertaking as to confidentiality as specified in Schedule 3.

2. And that they be ready to problem-solve, not litigate, by:
Managing Parties and Party Representatives in Mediation: Tools for Lawyer and Non-lawyer Mediators
Request that the advocates prepare for mediation by preparing their clients, managing expectations and identifying potential:
Impasses
Options
Areas of agreement
BATNA
And that they be ready to problem-solve, not litigate, by:
Working with the other side
Focusing on interests
Keeping an open mind
And allowing the client to participate actively
Getthem on bard from the outset

3. Recognizing and Dealing with Advocate Negotiator Types Competing
Managing Parties and Party Representatives in Mediation: Tools for Lawyer and Non-lawyer Mediators
Recognizing and Dealing with Advocate Negotiator Types
Competing
Collaborating
Compromising
Avoiding
Accommodating
Use URY & Fisher models to deal with these types:
Ask Questions
Reframe
Go to the balcony
Build golden bridge
Bring the representatives to do the same with the other party.
Duty to the Court
Duty to the general administration of justice
Duty to clients
The duty of honesty, courtesy and fairness to other parties. )
Law Council of Australia Guidelines for Lawyers in Mediations (2007)
assist clients,
provide practical and legal advice on the process and on issues raised and offers made,
and to assist in drafting terms and conditions of settlement as agreed.
‘Lawyers and clients should act, at all times, in good faith to attempt to achieve settlement of the dispute.’
Manage client expectations through educating about the process
Explain differences with adversarial proceedings
Work with the other side, not against
Encourage empathy - not incompatible with assertiveness
interests, not positions
Keep an open mind
Prepare your client to participate actively
Help your client to understand real interests and goals
Carrot

4. Issues during the Mediation Session
Managing Parties and Party Representatives in Mediation: Tools for Lawyer and Non-lawyer Mediators
Issues during the Mediation Session
Power imbalance - Especially when only one party is represented
Non-lawyer support person doesn’t understand role
Unprofessional conduct
Misleading conduct – beyond puffery
Refuses to let clients speak
Disagreement between lawyer and client
Making insulting offers
Using the mediation as a litigation tool
Wanting to “WIN” at all costs
Trying to settle at all costs
Seashell
Don’t lose sight of your ethical duties
Be open to continuing contact with the mediator if there is no settlement
Teach advocate to use mediator for reality testing

5. Remind participants of their initial agreement Reality test, use BATNA
Managing Parties and Party Representatives in Mediation: Tools for Lawyer and Non-lawyer Mediators
Tools
Remind participants of their initial agreement
Reality test, use BATNA
Take a break
Bring the discussion back to interests
Separate the lawyers
Separate the parties
Seashell
Don’t lose sight of your ethical duties
Be open to continuing contact with the mediator if there is no settlement
Teach advocate to use mediator for reality testing

6. Remind the Advocate of His or Her Duties Duty to the Court
Managing Parties and Party Representatives in Mediation: Tools for Lawyer and Non-lawyer Mediators
Remind the Advocate of His or Her Duties
Duty to the Court
Duty to the general administration of justice
Duty to clients
The duty of honesty, courtesy and fairness to other parties.
Law Council of Australia Guidelines for Lawyers in Mediations (2007)
Assist clients
Provide practical and legal advice on the process and on issues raised and offers made
Act in good faith to attempt to achieve settlement of the dispute.’
Stick
The duty of honesty, courtesy and fairness to ‘third parties’. LIV Professional Conduct and Practice Rules 2005,
Ethics (and some related issues) in Mediation Mark Hebblewhite – Gordon & Jacksons List
Good faith in contract clause

7. Avoid being too Directive Avoid giving legal advice
Managing Parties and Party Representatives in Mediation: Tools for Lawyer and Non-lawyer Mediators
Avoid being too Directive
Avoid giving legal advice
Don’t press parties to reach a settlement if they need more time, even if a party reneges after agreeing
Encourage the parties to remain in contact even if there is no settlement
Follow up regularly
Be open to continuing contact with the mediator if there is no settlement
Tapoohi v Lewenberg (No 2) - [2003] VSC 410

8. Thank you for your attention.
Managing Parties and Party Representatives in Mediation: Tools for Lawyer and Non-lawyer Mediators
Thank you for your attention.