Behind every dispute Lies a broken relationship

Richbell David 2012I (David) am a red-blooded Commercial Mediator. I get settlements. Indeed I tell the parties “My role is to give you the best chance of getting a deal”. But I try to be nice when I am doing it!

Jane, on the other hand, is nice without trying and tends to give more time to the parties relationships and not necessarily to problem-solving. She still gets results but usually through what she terms as ‘slow mediation’ (in the mode of slow, rather than fast, food).

What we both accept is that we can learn from each other’s style and techniques and we do so by co-mediating together occasionally.

Mediation is a very solitary business and, once we have established ourselves as lead Mediators, it is very rare that we have the privilege of seeing our peers in action. That is one reason why MATA introduced the peer review scheme last year, where one lead Mediator sits in with another lead Mediator and gives honest feedback afterwards. Despite being acknowledged by many Mediators as being very important, so far only a few leads have joined the scheme and I do wonder if that is out of fear about a colleague observing, and commenting on, their performance!

The point of this is that we Mediators are in danger of being isolated,

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Who is at the Centre of Mediation?

As commercial mediation has ‘matured’ it is worth considering again who is, and who should be, at the centre. Is it:

• The Party
• The Lawyer (solicitor, barrister, judge)
• The Mediator
• The providers
• The CMC

The Party

It is said that mediation is a party-focused process. It is the party who is at the centre. It is their problem, their solution, their process. This is the opportunity for the party to really have a day in court – a far better day than being in a real court. Here a party can say what they want, with all the feeling and conviction that they have, the only restriction being time (ie no more than twenty minutes) and courtesy (ie non-abusive) – and that it is free of bloodshed. Unfortunately the theory rarely works in practise. Too often the party is put in the background, sometimes by choice, and others speak (and negotiate) on their behalf. Which is a tragedy, for mediation provides the opportunity for each of the parties to tell their story – their story (not someone else’s version) – to the other side(s) and to then hear the other side(s) version of the same story. Done well it can help parties change position and provide reasons for them to become flexible in their approach to a solution.

So why does it happen so rarely? Firstly, it may be too early in the process. A party is inevitably cautious of the process (it is, after all, usually the first and only time that they experience mediation). They don’t want to say something that will be used against they in the future, or which may upset their lawyer. Too often a party, when invited to speak after their lawyer has made an opening statement, will say “no, my lawyer has said it all”. They haven’t! The lawyer has given the legal argument – there is a much more powerful one to be said by the party – it is their money (payer or receiver), their emotions, their life. Which is why many good Mediators have a fairly lengthy opening session, to give time for a party to settle down, feel confident about the process and then be stirred into speaking.

Similarly, the party should be the one to negotiate the deal. It is their problem, and their solution. Everyone else should be in support but the deal should be theirs. At the very least, the parties should be the ones to seal the deal, to agree the final details and shake hands. They need to own the outcome – that is why mediated deals stick.

The Lawyer
Given the above, that mediation is a party-focused process, the lawyer is cast in a supportive role. The theory goes that the lawyer takes more and more of a back seat as the party leads the pathway to solution. For the solicitor, this means preparing the party, encouraging them to take a full part in the process, advising on legal merits, undertaking and reviewing risk analysis and supporting her/his party in their quest for a solution. This may be a challenge for someone who is normally a problem-solver and a fighter for the best deal.
For a Barrister this is even more of a challenge. Instinctively a leader, spokesperson and assumed negotiator, most find it difficult to allow others (preferably the party) to lead and for them to be advisor, supporter and encourager. Indeed, it may be difficult to justify a barrister’s fee in such circumstances! The worst thing that a barrister can do is muffle the party, grandstand the opening session and highjack the deal. Better not to attend at all.

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Construction & Property Mediation Group

Construction & Property Mediation Group

The next meeting of the Construction & Property group will be a breakfast meeting and will take place at:

The Punch Tavern, 99 Fleet Street, London, EC4Y 1DE (Tel: 020 7353 6658)

at 8.30am (for 9.00am) on Thursday 21st March 2013

Topic: Should mediation clauses be written into contracts?

A breakfast of tea, coffee and pastries will be provided at a charge of 5.00. (Something more substantial can be ordered individually).

If you are interested in attending please contact Dave Owen, Pengaron Mediation Services Ltd, 23 Berkeley Square, London, W1J 6HE, Email: Tel: 020 3178 4786

CPD:  attendance counts for 1 hour of CMC’s CPD requirement.

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The non-rise of non-lawyer Mediators

The non-rise of non-lawyer Mediators

This paper is the substance of the talk at the CMC Debate held on the 18th January 2012 titled,

“Non-lawyers make the best Mediators”

It is ironic that, for a party-focussed process where legal arguments fall quickly away and settlement occurs through commercial negotiation, lawyer-Mediators get most of the work. It should be common sense to most people that a mediator with a business background (who is used to the everyday pressures of running a business; to whom commercial negotiation is the stuff of life; who understands the importance of cash flow and who recognises the importance of spending time on wealth-creation and relationship-building rather than on paper-searches, witness statements and giving evidence in court) – that business-grounded person is of much greater value to the mediation process that someone who understands and practices the law. 

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Joanna Kalowski Cross-Culturalism

Joanna Kalowski Cross-Culturalism

JOANNA KALOWSKI  is a mediator, facilitator and judicial educator, and is director of Joanna Kalowski and Associates, a management consultancy specialising in dispute resolution, cross-cultural communication and organisational development.  She has worked for over twenty years in Australia and New Zealand, as well as in Singapore, Thailand, Hong Kong and India. Over the last seven years, Joanna has also run workshops in Italy, Germany, England, Denmark, Spain, Switzerland and France, including a three-day summer school for the Centre de Mediation de Paris (CMAP) in 2005, conducted in French on Majorca.

Joanna has mediated over 300 cases: indigenous land claims, environmental matters, community involvement in public infrastructure projects, commercial, industrial and academic disputes.

Between 1984 and 1988, Joanna was Director of Community Relations at the NSW Anti-Discrimination Board, and from 1988 to 1996, a member of the Federal Administrative Appeals Tribunal. She joined the National Native Title Tribunal for a three year appointment in 1996.  In 2001 she was Chairman of LEADR, Australia’s largest non-profit dispute resolution organisation, and was their Visiting Fellow in 2006-7. For eleven years, she was co-presenter of LEADR’s Australian and overseas training program. Joanna has held a range of other board and advisory council memberships, including the Public Interest Advocacy Centre where she served a decade on the Board, and the advisory council of the Indigenous Law Centre of the University of New South Wales. An adult educator by background, Jo has also served on the Ethics Review Committee (Human Subjects) of Macquarie University, the National Population Council advising the Minister for Immigration, and the NSW Board of Adult Education. She was a director of Sydney Dance Company for three years and foundation Chair of the first Australian Foodbank from 1992 to 1995. Over the past five years, Joanna has been active as a judicial educator, working with courts and Tribunals across Australia in areas such as managing tension in the courtroom, communicating with unrepresented litigants and cross-cultural communication.  She also assisted judges of the Family Court of Australia for three years during the introduction of the less adversarial trial process in disputes over children. Joanna speaks fluent French, and also speaks German and Italian. In 2002, she was appointed to the Geneva-based World Intellectual Property Organisation’s Panel of Neutrals, and in 2003 to the Centre de Mediation et d’Arbitrage in Paris, where she lives and works for part of each year. In 2008, she accepted appointment to the International Mediator Institute (IMI), and serves on its independent standards commission and the reference group setting standards in intercultural mediation.  This year, Joanna was appointed Diversity Advocate to the ANZ Bank.

  Cross-cultural imperative
Australia in context: the cross-cultural imperative

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