Mediation Advocacy: Representing and Advising Clients in Mediation

Description

Are you getting the best out of mediation? Written by an active practising mediator, Mediation Advocacy: Representing and Advising Clients in Mediation takes you inside the mediation process, from the initial consideration of mediation to settlement and beyond. Drawing on current practical experience and the latest behaviour research in clear readable language it deals with the legal, financial, psychological and practical dimensions of mediation. A ‘how to do it’ guide for anyone attending mediations as representatives, clients, experts or mediators, the fully revised, restructured and updated Second Edition includes: Preface Preface to the First Edition Table of Statutes Table of Statutory Instruments Table of Cases Glossary Useful websites PART A: INTRODUCTION TO MEDIATION ADVOCACY AND THE MEDIATION PROCESS Chapter 1 Negotiation Framework Introduction Working definitions Mediation Negotiation Eight core principles Three core concepts Eight core principles Principle 1: Mediation is for making peace not war Principle 2: Peace is made by negotiating deals Principle 3: Not every negotiation is a mediation but every mediation is a negotiation Principle 4: The process of negotiation is a process of the mutual recognition of reality – your own and the other person’s Principle 5: Deals are made by discussing proposals, not by arguing Principle 6: Preparation for mediation is preparation for peace talks Principle 7: Negotiation leads to action – it is different from a discussion or debate Principle 8: People make decisions and settlements for their reasons not yours Three core concepts What lawyers do Three classic stages of mediation Three actual stages of mediation The mediation advocate’s 3Rs The fundamental question How to use this book In a nutshell Chapter 2 What is Mediation Advocacy? What is mediation advocacy? A misnomer Non-adversarial Common ground or battleground? A specialism? Standing Conference of Mediation Advocates (SCMA) International Mediation Institute (IMI) Can clients represent themselves? Why is civil and commercial mediation different? Self-representation Advantages Disadvantages Minimising the disadvantages Who should represent a client? What is the advocate’s role? What is the lawyer’s role? What are the advantages of transaction lawyers? What are the disadvantages of transaction lawyers? What are the advantages of litigation lawyers? What are the disadvantages of litigation lawyers? Should barristers attend mediation? Why are barristers sometimes barriers? Are barristers needed at all? What is the value of barristers? The bottom line What is the value of in-house counsel? The seven deadly sins of barristers The seven deadly sins of solicitors Do representatives have to be lawyers? Non-lawyers Lawyer advocates In a nutshell Chapter 3 What Do Clients Want? Do clients, advocates and mediators want the same thing? Is this true? Client and advocates City of London 2014 Survey IMI Global Pound 2017 Survey Advocates and mediators: friends or enemies? Have the advocates asked the right questions? Exploring what clients want The PIN paradigm Goals What three key questions must advocates ask themselves? (1) What do my clients need? Psychological needs Financial needs (2) What does the other side need? (3) What can we give the other side? Costs of settlement What do clients really want deep down? In a nutshell PART B: MEDIATION ADVOCACY SKILLS AND TECHNIQUES Chapter 4 Negotiation Fast Track Tactics We are all negotiators, aren’t we? A key question The four essential skills for mediation advocates Self-audit checklist – Active listening Talking Listening Smiling Breathing Voice Telephone technique Body language Principled negotiation (1) Separate the people from the problem (2) Focus on interests not positions (3) Invent options for mutual gain (4) Insist on using objective criteria Know Your BATNA Positional negotiation What is wrong with positional negotiation? Why do people like it? How to influence people: the Big Six (1) Reciprocation (2) Commitment and consistency (3) Social proof (4) Liking (5) Authority (6) Scarcity In a nutshell Appendix 1 Breathing exercises Chapter 5 What Type of Negotiator Are You? What type of negotiator are you? Self audit: the Rackham Carlisle test What impresses you? What type of negotiator should you be? Be flexible Be robust In a nutshell Chapter 6 How to avoid mind traps How do we make decisions? Risk and uncertainty Why do some people take more risks than others? Can we control our emotions through thinking? Self audit The biases in action In a nutshell Appendix 1 Checklist of biases and heuristics Chapter 7 Mental preparation What do clients want? Risk and uncertainty: the evil twins Pre-mediation analysis Risk analysis Litigation risk Net cash position Summing the differences Confidence and risk factors What is your appetite for risk? Can you withstand the impact of losing? Impact and value of settlement Non-monetary factors Settlement value can change The other side’s settlement Funding settlement It’s not my problem Other stakeholders FAQs from clients to advisers In a nutshell Appendix 1 Confidential Checklist Chapter 8 Mediators’ Tricks What do mediators do? Small talk Warm smiles and cold eyes Flipchart – pedagogy? Brainstorming The opening question Approaches 1 and 2 Approach 3 Approach 4 Approach 5 Venting or vomiting? Open questions Reframing Guiding and steering Reality testing Feeding the habit: settlement junkies Creating a wedge Separating clients from lawyers Champagne, chardonnay and cappuccino Exchange offers Guessing offers Sealed offers Split the difference The auto-settler Mediator’s proposal Mediators recommendation: during or post mediation ‘I’ll try and persuade them’: a mediator’s endorsement Tossing a coin Secret weapon In a nutshell Chapter 9 How to build a mediation advocacy practice/business The preliminaries The four personal questions Q1 Why am I doing it Q2 Where do I want to be in three years’ time? Q3 How much money, time and effort do you have available to invest in your new mediation advocacy practice? Q4 Why would I appoint myself as a mediation advocate The three business questions Q1 What am I selling Q2 Who am I selling it to? Q3 What is the route to market? Mediation advocacy marketing plan in nine moves Why create a marketing plan? Move 1 Build your reputation: Build your brand Move 2 Know your market Move 3 Who are your competitors? Move 4 Know your business Move 5 What are your USPs? Move 6 Watch your clients Move 7 Select your marketing channels Move 8 Schedule your marketing activities Move 9 The finances In a nutshell Part C: The Mediation Chapter 10 How Voluntary is Mediation? The current position Contractual constraints The old position The interim position The current position Civil Procedure Rules What is the attitude of the courts? How far can the courts help? Mediation Settlement Enforcement Order (MSEO) Can I refuse to go to mediation? The six Halsey factors (1) The nature of the dispute (2) The merits of the case (3) Extent to which other settlement methods have been tried (4) Whether the costs of mediation would be disproportionately high (5) Delay caused by mediation (6) Did mediation have a prospect of success? Halsey letters The court supplies ammunition to advocates wanting to mediate In a nutshell Chapter 11 How Confidential is mediation? Confidentiality Why is confidentiality important? Without prejudice What are the exceptions? Mediation confidentiality and privilege: Does it exist? What is mediation confidentiality? How do these without prejudice privilege and confidentiality rules apply in practice? Take precautions Be clear what questions are being asked and why Beware of eavesdropping Unconscionable conduct Need to be consulted Binding provisions (1) Duties to third parties (2) Tactical mediation (3) Hard bargains Can mediators be witnesses? In a nutshell Chapter 12 How do you choose a Mediator, a Team and a Venue? Who are mediators? Civil and commercial mediators Mediators’ profile The number of women is increasing The number of advanced mediators is increasing Mediators’ earnings are falling The number of mediators is increasing How many active mediators are there? What sort of people are mediators? Can anyone be a mediator? Is mediation a profession? How to find a mediator Previous experience Go with their choice of mediator Recommendations Talent spotting Directories The internet Registers Panels Marketing groups Barristers’ chambers and firms of solicitors Individuals/independents The ‘little black book’ Mediation providers Weighing up the mediator How are they accredited? How are they regulated? Do they have professional indemnity insurance? How many mediations have they actually carried out? How many mediations have they done that week? What is their CV or website like? Can I talk to the mediator? What are their charges? Are they available? What sort of mediator do I want? Lawyer or non-lawyer? Generalist or specialist? Insider or outsider? Co-mediation Selection criteria The mediation venue Is a neutral venue the best? Expense Availability Suitability Checklist for mediation venue Who to take to the mediation In a nutshell Chapter 13 Style Wars: Who Do You Choose? The paradox of choice Mediation models: the Big Four (1) Facilitative (2) Evaluative Are evaluative mediators correct in what they say? What does evaluative mean? The three stages Exploration Exchange Formulation (3) Transformative (4) Narrative (5) Indicative (6) Interventionist (7) The Heron model Authoritative Facilitative In a nutshell Chapter 14 The Stages of the Mediation Day Civil and commercial mediation Variations Stage 1: Arriving at the venue (1) Be on time (2) Where is the venue? (3) Embarrassment in the waiting area (4) Meeting the mediator (5) Dress appropriately Stage 2: Chats with the mediator in your room Signing the mediation agreement Mediation agreement Not ready to start? Lawyers-only meetings Stage 3: Joint Opening Session Mediator’s statement The parties’ opening statements What to say in your opening statement? Visual aids What to do when the other side is talking Should you agree to a Joint Opening Session? Stage 4: Private meetings with the mediator Stage 5: First exchange of offers Stage 6: Lunch Stage 7: Second exchange of offers Stage 8: Private sessions continue Stage 9: The wall Stage 10: Review session Stage 11: The caucuses continue Stage 12: Settlement Stages 13 and 14: Drafting agreement, signature and copy documents Stage15: Farewells Family mediation MIAMs Mediation sessions First session Subsequent sessions Workplace mediation Arrival The first private session The second private session Lunch Joint session Conclusion Community mediation Arrival First private sessions Second private sessions Joint session Conclusion Follow-up In a nutshell Chapter 15 Physical Preparation Why do mediations fail? How do you prepare for mediation? Should I ignore the law? Common faults in preparation Cutting corners Guidance notes What to talk about Pre-mediation meetings Mediation statements and files Why are mediation bundles prepared before the statement? Must I prepare a mediation statement? What are the disadvantages of not producing mediation statements? What is the purpose of a mediation statement? Changing people’s minds The bottom line Who is the mediation statement for? The lawyer on the other side Mediator Client on the other side Own client Is your message clear? The mediation statement is not a restatement of case Setting the scene for peace talks Setting the agenda If that’s their attitude I’m not coming! What to put in the position paper Head it ‘confidential’ Confidential information for the mediator The vocabulary blacklist How long should it be? Exchange mediation statements or not? Reasons to exchange Reasons not to exchange Exchange is better Examples of opening and closing paragraphs Do you need a document file/bundle? Does the document file/bundle need to be agreed? What should you include in the document file/bundle? Preparation time What to take to the mediation Documents produced for the mediation Documents produced for the litigation Draft settlement agreement In a nutshell Appendix 1 Checklist of Items and Documents to Take to Mediation Appendix 2 Checklist for Mediation Statement Appendix 3 Checklist for Mediation File (Mediation Bundle) Chapter 16 The Mediation Agreement General Mediation rules In a nutshell Chapter 17 The Settlement Agreement The danger zone Who does the drafting? Heads of agreement: solution or problem? Legally binding or not? Temptation Heads of terms: avoiding pitfalls Include all relevant terms Everyone signs ‘Sleep easy’ clause Entire agreement clause Contingent agreements Conditional agreements How do I protect my clients against lies? Pre-action mediations Post-action mediations Interest Sealing the order In a nutshell Appendix 1 Checklist for Settlement Agreement Appendix 2 Template for a Tomlin Order Chapter 18 After the Mediation The parties have not settled: what next? Failing to settle is a not a failure – or is it? Don’t let the mediation become an obstacle to settlement Leaving offers on the table Further discussions Do you involve the mediator not? The parties have settled: what next? Tell the court Post-settlement blues Four scenarios advocates want to avoid (1) Settler’s remorse (2) Non-compliance (3) Can mediation advocates be sued? (4) Can mediators be sued? In a nutshell Part D: Self-Advocacy: Representing Yourself Chapter 19 Self-Advocacy Why is self-advocacy different? Seven common mistakes of self-advocates (1) Talking for too long (2) Talking too quickly (3) Lack of preparation (4) Stage struck (5) Information management (6) Giving too much information (7) Over-selling Pre-mediation Contact the mediator Contact the other side Email the mediator Documents What to include Mediation statement/position paper Preparing a draft Settlement Agreement At the mediation The Joint Opening Session Advantages of Joint Opening Session Not being a lawyer helps Mutual assessment Poise under fire Arrange yourself Visual aids Photographs and plans How many points to make? Three tips for all advocates Suggested openings and closings Openings for the claimant speaking first Openings for the defendant going second (where the claimant has been moderate and conciliatory) Openings for the defendant (where the claimant has been aggressive and adversarial) Closings for claimants going first Closings for defendants going second (where the claimant has been moderate and conciliatory) Closings for defendants going second (where the claimant has been aggressive and adversarial) In a nutshell Appendix 1 Template for Index of Documents File/Bundle Appendix 2 Template for Mediation Statement/Position Paper Part E Developments Chapter 20 Online Mediation/ODR What do all these initials mean? Jargon busting? What is Online Dispute Resolution (ODR)? In practice The four levels Level One Level Two Level Three Level Four What does ODR mean for mediation advocates? Text mediation Telephone Video Advantages of ODR Differences and disadvantages of ODR Is ODR a threat? Algorithmic systems ODR is here In a nutshell Chapter 21 Cross-cultural issues What is culturology? What are cultural differences? Theoretical background Low context societies High context societies Expressing yourself Checklist of high/low context societies Low context High context Decision making Hofstede’s Indices Real life foreground Tricky phrases and words Swearing Profanities Gender Sporting references Military references To summarise Intel How do you gather intel? Politeness Organisations Authority Confidentiality In a nutshell Chapter 22 What does the future look like? What does the future look like? Evaluative mediations: why are they more popular? Arb/Med Pros Cons Med/Arb Pros Cons Mediation After Last offer Arbitration (MEDALOA) Pros Cons Time-limited mediations Pros Cons Unrepresented parties Quants Index