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A Successful Outcome
We are lawyers and mediators who believe in collaboration and consensus to close deals and solve disputes.
| dialogue |
| negotiation |
| resolution |
Letter to Client Warning of Duty to MediateThe Mediator's Role
The Mediation Agreement
An example of the mediation process
Briefing the Mediator
The Opening Statement Checklist
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An Example of the Mediation Process
1. Pre-mediation discussions with parties and counsel
Eliminate stress and lack of understanding
Explain rules of confidentiality
Give parties Agreement to Mediate
Make sure decision maker will be present at negotiations with authority to settle
Discuss documents and need to visit locations
Discuss role of counsel
2. Agreement to Mediate
Parties will sign contract agreeing to mediation
Agreement sets out requirement of disclosure, confidentiality rules, fact that mediator does not give legal advice
Encourage parties to retain counsel
Discuss termination of process
Determine fee
3. Procedure
3.1 Beginning the Session
Set positive tone
Help develop procedure for venting emotions
Help develop structure for educating parties about issues they want to discuss
Help provide means for accurate communication
3.2 Mediator’s Monologue
Introduce yourself and process
Explain your role, role of caucus and joint sessions
Define confidentiality, impartiality and neutrality
Answer questions
3.3 Caucus
Private meeting between one party and mediator
Allow parties to vent emotions, discuss confidential information
Identify issues, positions of parties
Generate options
Evaluate settlement proposals
3.4 Negotiations
Opening statements of parties
Help parties communicate about substantive issues
Active Listening
Summarisation
Expansion
Ordering
Separation or Fractionating
Probing or Clarifying Question
3.5 Set the Agenda
Establish a Positive Emotional Climate
Prevent verbal attacks
Encourage focusing on problem, not people
3.6 Locate Common Interests
Brainstorm
Prioritise issues
Explore overlapping issues
Explore perceptions of other party’s interests
3.7 Generate Options
Discuss numerous options
Do not evaluate options as you raise them
Focus on the issue or problem, not the other party
Consider a single-text negotiating document
3.8 Problem Solving
Building Block Approach to settlement
Divide problem into issues and sub-issues
Prioritise issues and resolve individually
Build on each resolution to reach final integrated resolution
3.9 Agreement in Principle Approach
Design set of general principles to guide discussions
Negotiate specifics
Expand the Resources
Logrolling (trade-offs)
Alternation
Seek Integrative Interest-Based Solutions
4. Closure
Determine whether the agreement should be strong or weak
If strong, be comprehensive, clear
Avoid contingencies, future or ongoing performance
Set out consequences for failure to abide by agreement
If weak resolve only necessary issues
Design mechanism for resolution of future disputes
Make agreement contingent
Leave room in less significant clauses for future negotiation
5. The Agreement
Generate settlement options
Evaluate options
Formulate proposals
Writing the Agreement
Consider simple memorandum of understanding
Formal contract generally required
May be written by lawyer for one party
May be written by joint committee or one party
Mediator may draft agreement if it is simple
Get input from all parties
Review document with parties to make sure all interests have been covered
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