The Gazette 1994

AUGUST/SEPTEMBER

1994

GAZETTE

pursue or continue arbitration or litigation.

their real interests and positions to him or her, rather than engage in the normal posturing of traditional negotiation. Communications with the mediator in private meetings are strictly confidential. The mediator agrees not to disclose what he/she is told without the consent of the party telling him. The parties also sign an agreement prior to the mediation confirming that all communications with the mediator will be confidential, that he or she will not be subpoenaed in any subsequent litigation and that the discussions will be deemed to be without prejudice. The mediator encourages the parties to speak freely to him/her and, if they wish, to vent their feelings and frustrations about the dispute, thus meeting their often strongly-felt need to "tell their story" to an outsider who As private meetings continue with each party, the mediator may engage in a form of "shuttle diplomacy", developing the basic elements of a settlement in the process. Often, significant movement towards settlement occurs during the time that the mediator is in "caucus" with the other party, when the participants and their advisers carry out their own risk analysis. By focusing hard on the reality of the case, resistance to settlement may diminish and real movement occur. One of the advantages of using a mediator is that parties can confidentially explore and test settlement options without making an offer and appearing to give in. Because of the mediator's unique position as a confidant of both sides, they may entrust him with best settlement offers. The mediator agrees in writing beforehand that if the case i does not settle, these figures will never be disclosed. will listen, and to confront their adversary, as a prerequisite to settlement.

Mediation may take place:

(a) following agreement by the parties to submit an existing dispute to mediation or

(b) Increased client satisfaction and client referrals: by using mediation a solicitor can be seen by his/her client to have vigorously taken all reasonable j steps to bring the case to a speedy conclusion, thus reducing uncertainty, stress and delay for the client. The mediation process itself offers an excellent opportunity for solicitors to impress their clients with their advocacy skills in the opening session, and with the quality of their advice throughout the I (c) Increased profitability: clearly the j quicker a case settles, the sooner the fee for processing it is earned by the solicitor - an important j consideration in these days of process.

(b) pursuant to a mediation clause, in addition to, or instead of, an arbitration clause in a written agreement or contract by which j

the parties agree in advance to firstly refer disputes to mediation (see Appendix for sample clause).

Mediation is similar to a settlement meeting between the parties and their lawyers, but with the added presence of a trained third party, the mediator.

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The Mediation Process

Following agreement to mediate, the mediation itself is then scheduled for a time and place convenient to all the parties and their advisers. The parties initially meet for a joint session at which each side summarises its case. The mediator may then define and clarify the differences and issues between them. Thereafter the mediator may meet each party with their advisers, in confidential private meetings or "caucuses", at which movement towards settlement begins. Some mediators, especially in the area of family law, employ a model of mediation which does not include private meetings or caucuses. At these private meetings the mediator further clarifies the issues and begins analysing and questioning (without giving his/her opinion on) the positions, claims and assumptions of each party. The object of this analysis is to lower resistance to settlement by engaging in reality testing. He/she may ask the parties to put themselves into their opponent's position and analyse the case from their stand- point. The mediator gauges the differences that lie between the parties in a way that negotiators, who only know their own side, cannot. Mediation succeeds by combining two integral factors in any negotiation: communication and trust. The parties must trust the skill and integrity of the mediator sufficiently to communicate

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cash-flow pressures and escalating overheads. Early settlement of cases is very often more profitable than fighting them in court or settling on the court door-step. clients: in jurisdictions such as the U.S., Australia and the U.K., ADR techniques are emerging as areas of progressive legal specialisation for solicitors for the 1990s. Many solicitors there have undertaken training in the techniques of representing their clients at mediation. In the U.S. policy statement pledging themselves to use ADR techniques before resorting to litigation. Many U.S. insurance companies have established ADR departments and guidelines, and require their claims handlers to submit a minimum percentage of their claims to mediation, prior to litigation. Examples include: The Travellers, The Hartford, CIGNA, Nationwide, Maryland Casualty, Chubb Insurance Group and over 500 blue chip U.S. corporations have subscribed to a

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(d) ADR - a new service to our

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Why Use Mediation?

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others.

(a) Client involvement and control: if any party is not satisfied with the

(e) Avoidance of negligence claims: because the client participates actively in the settlement, engages

procedure, he or she is free to terminate it at any time and to

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