1. Mediation October 7, 2013 M.Gauci Law 341/342

2. October 7, 2013 M.Gauci Law 341/342 Definition  “The intervention in a negotiation or a conflict of an acceptable third party who has limited or no authoritative decision-making power, but who assists the involved parties in voluntarily reaching a mutually acceptable settlement of issues in dispute.” Christopher Moore, The Mediation Process

3. October 7, 2013 M.Gauci Law 341/342 Key Elements of Mediation  Structured process  Voluntary*  Impartiality  Assisted negotiation  Confidentiality  Without prejudice  Mediator has no decision making authority  Consensual resolution  Non-binding process  Parties formulate the resolution

4. October 7, 2013 M.Gauci Law 341/342 Factors favouring mediation  Concern for relationship  Direct communication  Motivated to settle  Swift resolution  Complex facts  Flexibility  openness  Confidentiality  Desire to avoid litigation  No adverse precedents

5. October 7, 2013 M.Gauci Law 341/342 Indicators against mediation  Public interest  Need for precedent  Public sanctioning  Fraud  Constitutional issue  Need for interlocutory relief

6. October 7, 2013 M.Gauci Law 341/342 Role of Mediator  Manage the process  Creating trust  Maintain respectful, safe, positive environment  Improve communication  Assist problem solving

7. October 7, 2013 M.Gauci Law 341/342 Mediation Models  Facilitative  Evaluative  Transformative  Restorative Justice Models

8. October 1, 2012 M.Gauci Law 341/342 Facilitative mediation  Represents traditional interest based model  Parties control content  Mediator controls process  Open, transparent, direct communication  Mediator works to ensure all interests, including psychological, are addressed  Rational discussion leading to better understanding of issues, therefore, resolution

9. October 1, 2012 M.Gauci Law 341/342 Evaluative mediation  Mediator controls process  Directive as to content, more focus on the legal aspects  Assumes parties know what they want  Directive as to range of options, settlement  Extensive “reality testing” re: strengths and weaknesses  Bargaining and trade-offs of positions

10. October 7, 2013 M.Gauci Law 341/342 Transformative mediation  Reconciliation vs. settlement  Twin concepts of empowerment and recognition  Main goal is relationship and individual growth  Agreement or settlement is secondary

11. Restorative Models  Aboriginal, community justice, criminal matters eg sentencing, youth diversion  Must accept responsibility for actions prior to convening  Anyone affected in the community, including family, is invited to participate  Focus on repairing harm, transforming relationships, accountability

12. October 7, 2013 M.Gauci Law 341/342 Mediation model Preparation and Convening Set the stage Stories Interests Issues Options Agreement Follow up Feedback

13. October 7, 2013 M.Gauci Law 341/342 Preparation and convening Meeting with the parties separately- building rapport, determining appropriateness, trust, gathering information about context and culture, preparation for negotiation, thinking about options, interests, special needs Logistics - who will attend, where, when, level of formality, process, time i.e. court deadlines, travel At the session - arranging seating, comfortable environment, special needs

14. October 1, 2012 M.Gauci Law 341/342 Set the stage  Welcome and introduction  explanation of context, expectations of process  guidelines - voluntary, without prejudice, confidentiality, authority to settle, caucus  role of the mediator  signing “Agreement to mediate”  confirm timeframes, logistics  facilitate commencement of stories

15. October 7, 2013 M.Gauci Law 341/342 Story telling  Representatives - provide framework  Parties - uninterrupted time to speak  Mediator - refocus, identify the issues, frame topics for discussion, reframing negatives, highlights interests (CHEAPPVIC), paraphrase and summarize to ensure understanding, maintain control of process, recognize positive efforts, address unproductive behaviour

16. October 7, 2013 M.Gauci Law 341/342 Issue generation  Summarize accomplishments  Generate an agenda - list of issues to be negotiated  Agree on content and order to address  Guidelines for further discussion

17. October 7, 2013 M.Gauci Law 341/342 Getting to Interests  Explore interest behind positions (CHEAPP VIC)  active communication  address perceptions - empathy, suspend judgment, non-blaming, neutral, frank, open, honest, respectful  acknowledge the emotion  identify the need behind the emotions, words  creative

18. October 7, 2013 M.Gauci Law 341/342 Option generation  Brainstorming, blue sky thinking  reality testing, hypotheticals  look at objective criteria  research options  test for agreement  explore consequences, advantages, disadvantages  discuss who, what, where, when, how

19. October 7, 2013 M.Gauci Law 341/342 Agreement  Highlighting options for settlement  contingency plans  timeframes discussed and assessed  ILA, or additional information as required  drafting of settlement respecting context, neutral language, balanced, clear  confirm agreement to return to mediation should implementation problems occur (loop back)

20. October 7, 2013 M.Gauci Law 341/342 No agreement?  ensure parties are aware of next steps, each others expectations  statement of agreed facts?  thank parties for their efforts  encourage parties to continue to think about the possibilities and discussions for settlement and if possible, pursue settlement in the future