Mediation skills for lawyers

Mediation Skills for Lawyers

In many ways I regard mediation and legal approaches as complementary. Mediation considers the well-being of all participants through the lens of interests. The legal approach considers the well-being of the one participant at a time through the lens of rights. Together all angles are catered for.

When the process that has been decided upon is mediation, it is constructive if all actions of all involved fall under the rubric of mediation. That is, it is as counter-productive to bring legalistic interventions into mediation as it is to bring in mediation interventions into litigation.

In a mediation in which participants are supported by their lawyers, participants have the best of both worlds: collective focus on participants’ collective future and individual focus on participants’ individual futures. Mediation with the professional support of lawyers is a system of checks and balances that provides for ongoing relationships and for creating individual futures.

A solution-focused, value adding relationship among participants, lawyers and the mediator forms a constellation in which the mediator is responsible for the process and follows the lead of the participants regarding content; the participants are responsible for the content and follow the lead of the mediator regarding the process; and the lawyers are each responsible to their client and demonstrate this by following the lead of the mediator with regard to the process and the participants, with regard to the content.

This set of slides, above, Mediation Skills for Lawyers explores this complementarity in four sections:

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‘What is Mediation?’ distinguishes mediation from settlement conferences; describes mediation and considers ‘How do you know you are at a mediation?’ and  ‘How do you know you are not at a mediation?’

‘How mediation is conducted’ describes the stages of mediation and the purpose of each stage in that context considers further ‘How do you know you are at a mediation?’ and  ‘How do you know you are not at a mediation?’

‘Role of lawyers’ considers lawyers as trusted advisors; lawyers as champions of the mediation process; lawyers as consultants to all as well as a brief consideration of participants’ roles and the complementarity of the roles of lawyers and their clients.

‘Mediation skills for lawyers’ shows graphically how the greater extent to which lawyers can listen assiduously, think creatively, speak optimistically, decide credibly and recognise the conclusion of the mediation, the more successful will be the mediation.

Of mediation and chocolate: “Mediation A Practical Outline” by Sir Laurence Street

 

Q: What is the difference between mediation and chocolate?

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This is the second in a series of my quick comments on the items in my blogroll. Being the second, it is now officially a series! Just to your right, you will find the mediation classic: Mediation A Practical Outline by Sir Laurence Street.

Sir Laurence is a pioneer in mediation. His Practical Outline is a succinct, brief and highly readable booklet that distills the complexity of mediation for a broad audience. Mediation participants, their personal support people and their professional support people all find Practical Outline to be relevant reading because while on the surface it describes the process of mediation, implicitly it conveys the beliefs, the values and the principles of mediation.

I find that participants read the booklet and become clearer on what they can expect of mediation, moderating both their hopes and fears. In my experience, with their clarity comes confidence, the confidence to stay with mediation and the confidence to leave mediation and the ability to decide which is appropriate. Likewise their personal support people clarify their own expectations of the process and are able to focus on being supportive.

Professional support people, including psychologists, lawyers and accountants read the booklet and are reminded of their unique role in mediation. The psychologist leaves therapy at the door; the lawyer and the accountant leave representation and strategy at the door.  None of these suggestions is made in the booklet. None of them needs to be made because the essence and tone of mediation is so clearly conveyed that the role of professional support people can be read clearly in bold text between the lines.

The mediator’s role is clear: to be able to put a tick beside each of the sections of the booklet. That is, to design and to maintain a process that enables participants and support people to participate in structured, facilitated process of natural justice.

Sir Laurence Street is known for his many remarkable achievements, some of which are listed on p. 2 of A Practical Outline. For me, this booklet is among them. Following a long career which included Chief Justice of the Supreme Court of NSW; a career which was premised on and encultured by the legal aspects of Justice, Sir Laurence explored, then became an advocate for and practitioner of, mediation. In becoming a mediator, Sir Laurence embraced a culture that is the obverse of the legal culture.  He exchanged his previous role of making determinations for that of facilitating outcomes; his previous criteria for resolving matters from statutes and rights for interests; his previous orientation to listening to professionals for listening to participants and his previous focus on the past for a future focus. How to do all this and more and how to support it being done is conveyed in 15 pages.

All of which brings me to the differences between mediation and chocolate.

The differences between mediation and chocolate highlight the value of this booklet. Consider chocolate. Most people know where to go to get chocolate. Most people know whether the chocolate they have is good chocolate. Just mentioning chocolate is often enough to create a want for chocolate. Most people know what to expect when they have chocolate.

Consider mediation. Most people do not know where to go to get mediation. Having got mediation most have no idea whether they have good mediation or not. For many people, just mentioning mediation is enough to bring on anxiety. Most people do not know what to expect from mediation.

Mediation A Practical Outline by Sir Laurence Street brings mediation closer to chocolate. That has got to be a good thing!

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