Music to my ears 2: Address by Wayne Martin AC, Chief Justice Supreme Court of Western Australia, Perth 6 March 2018

This post continues ‘Music to my ears 1‘ in which I pondered whether I could transpose an excerpt from the paper by the Chief Justice of the Supreme Court of Western Australia, The Hon. Wayne Martin AC, from a description of the scope and the constraints of court practices to a description of the scope and the constraints mediation practices.

Below I put my ponderings to the test, changing the legal terminology to mediation terminology and as little of that as possible.

You be the judge!

I like to think that if the Court versions are written in the key of C major then the Mediation version below is written in the key of A major. The F# minor version will follow in ‘Music to my ears 3‘.

  • Chief Justice re Court

It is important to remember that the issues of fact resolved by a court are only those which the parties choose to present, and that they must be resolved on the basis of the evidence presented by the parties.

Chief Justice re Court transposed to Mediation

It is important to remember that the issues that can be resolved by a mediation are only those which the parties choose to present, and that they are resolved on the basis of the interests presented by the parties.

  • Chief Justice re Court

In the adversarial system there is no practical capacity for a court to conduct its own investigations to establish the truth, nor is there any obligation upon the court to arrive at some notion of absolute or independent truth.

Chief Justice re Court transposed to Mediation

In the mediation approach there is no practical capacity for the mediation to conduct its own investigations to establish the truth, nor is there any obligation for the mediation to arrive at some notion of absolute or independent truth.

  • Chief Justice re Court

Australian courts are not commissions of enquiry and can only view the facts through a prism of the evidence presented by the parties, which may or may not give a true view.

Chief Justice re Court transposed to Mediation

Mediations are not commissions of inquiry and can only view the circumstances through a prism of information presented by the parties, which may or may not give a true view.

  • Chief Justice re Court

Similarly, courts are generally constrained to adjudicate only upon the legal issues presented by the parties and have very little capacity to take the law in a direction not proposed by at least one party.

Chief Justice re Court transposed to Mediation

Similarly, mediations are generally constrained to facilitate to assist parties to reach agreement only upon issues presented by the parties, and, contractually have no capacity to take the outcome in any direction.

  • Chief Justice re Court

The constraints imposed upon a court by the way in which the parties choose to present their case somewhat diminish the normative value of public adjudication.

Chief Justice re Court transposed to Mediation

The contractual constraints imposed upon a mediation significantly diminish the normative value of mediation.

  • Chief Justice re Court

We should remember that the incentive of each party is to win, not to establish the truth or to develop legal principles.

Chief Justice re Court transposed to Mediation

We should remember that the incentive of each party is to reach a satisfactory agreement, not to establish the truth or to develop societal principles.

  • Points for my further pondering

Based on this excerpt and to the extent that you can live with this transposition, to what extent are court and mediation processes related?

Could CDR be an abbreviation of Consanguineous Dispute Resolution?

  • Next post

Another approach, to put to the test, the CDR test, could be with regard to the currency (the unit of exchange) of the process and therefore of the people involved. In a court, the currencies are rights and authority; in a mediation the currencies are interests and authority.  Maybe that will underpin ‘Music to my ears 3‘.

The mediation process

 

 

Music to my ears 1: Address by Wayne Martin AC, Chief Justice Supreme Court of Western Australia, Perth 6 March 2018

Australian Disputes Centre ADR Address 2018 Alternative Dispute Resolution – A Misnomer?

Dispute Resolution in C maj.

The following excerpt from this highly quotable paper, at page 8, is one example among many, of the compelling reading presented by the Chief Justice. It describes the scope and the constraints of the court. For me it raised and started answering questions about the relationship of two approaches to dispute resolution: the courts and mediation.

“It is important to remember that the issues of fact resolved by a court are only those which the parties choose to present, and that they must be resolved on the basis of the evidence presented by the parties. In the adversarial system there is no practical capacity for a court to conduct its own investigations to establish the truth, nor is there any obligation upon the court to arrive at some notion of absolute or independent truth. Australian courts are not commissions of inquiry and can only view the facts through a prism of the evidence presented by the parties, which may or may not give a true view. Similarly, courts are generally constrained to adjudicate only upon the legal issues presented by the parties and have very little capacity to take the law in a direction not proposed by at least one party. The constraints imposed upon a court by the way in which the parties choose to present their case somewhat diminish the normative value of public adjudication. We should remember that the incentive of each party is to win, not to establish the truth or to develop legal principles.”

As I read it, the excerpt pertains to authority; authority of the people involved, that is, of  parties, judicial officers and of the process: substantive and procedural authority.

The excerpt is music to my ears because while it describes aspects of the scope and the constraints of the court; it could, I hypothesise, be transposed to describe parallel aspects of the scope and the constraints of mediation and, for that matter,  other processes in the suite of CDR, ‘Complementary Dispute Resolution’.

My ‘Music to my ears 2‘ post will put my hypothesis to your test. I will aim to transpose the excerpt from court (C maj.) to ADR (A maj.), specifically, mediation.

Court room

Mediation: participants are the raison d’être

There are very few aspects about my mediation practice that can be generalised. The a few things are: almost every participant I meet has been having a really difficult time in the weeks, months and years leading up to the mediation; almost every participant I meet has been through a period of blaming themselves and others and almost every participant I meet, because they are ready to consider doing things differently.

As I see it, in CDR (Complementary Dispute Resolution) participants’ roles can almost always be generalised as three interdependent roles: to express themselves assertively, to demonstrably cooperate with others and to actively contribute to each stage of the mediation proceeding smoothly. In each role, participants like all others involved, complement the roles of the mediator(s), the personal supporters and the legal advisers.

mediation roles participants cascade 140123

Participants as assertive contributors of content

  • listen generously to be well informed so that they can refine their own points of view
  • think productively to clarify their concerns so they know when the mediation is working satisfactorily
  • speak moderately to express themselves so that they can keep their options open
  • decide wisely to consider advice from personal and professional trusted advisors
  • conclude satisfactorily to focus on the future so that they can move on with their lives

Participants as cooperative contributors to progress 

  • listen generously to hear how others’ concerns are connected to theirs so that joint, creative possibilities can be considered
  • think productively to include the concerns of all  so that proactive discussions can be held
  • speak moderately to respond to what they hear so that each comment is easily heard by other participants
  • decide wisely to persevere through short difficult phases so that all involved benefit from the progress being made
  • conclude satisfactorily to show good faith so that resolution brings benefits for all involved

Participants as partners in the process

  • listen generously to contribute to the mediation accomplishing the purposes of each stage of the mediation
  • think productively to demonstrate curiosity so that they contribute to the inclusive nature of mediation
  • speak moderately to keep the focus on the future so that they contribute to practical outcomes being reached
  • decide wisely to call breaks for thinking time so that the issues receive suitable consideration
  • conclude satisfactorily to acknowledge recognition of having accomplished sufficient of what is important to all

mediation roles participant circles 140123

Mediating with Families by Linda Fisher & Mieke Brandon 3ed: a Review

 

Introduction

Review wMwFritten in 2014

The family mediation profession is fortunate  that Linda Fisher and Mieke Brandon decided to write the third edition (2012) of Mediating with Families.  The first two editions (2002, 2008) were very well received in Australasia and beyond, and the third edition is following suit.  Family Dispute Resolution Practitioners, mediators, academics and trusted advisors all have much to gain from engaging with this expanded and updated edition.

Spanning as they do, ten years of significant change, the three editions have recorded some of the history of mediating with families in Australia. In the years since the first edition of Mediating with Families, the most significant of the changes for families has perhaps been the advent of compulsory family dispute resolution from July 1, 2007.  For mediators, the development of clear qualification pathways for both Family Dispute Resolution Practitioners and for mediators has been similarly significant.

During the ten year period of the growth of mediation theory and practice, the concept of family has also undergone significant social change. Perhaps each in their own way, both mediation and families have transformed in the way that a child, born in 2002 has developed over the same time.   As with the child, a synergistic mix of nature (evolution) and nurture (largely policies and the legal system) has brought family mediation into the second decade of the century.

Signature attributes

Mieke Brandon and Linda Fisher have ensured that this third edition of Mediating with Families carries its signature style and content while being thoroughly up-to-date.

Welcoming

Review_3The style that permeates the book is welcoming, generous, understated and highly accessible. The text is approachable in a way that invites certain reciprocity. Linda and Mieke offer their insights for the consideration of the reader, rather than as immutable truths. They have written a text that understates its place in the world of family mediation and is all the more accessible and therefore influential for it. Some texts imply that theirs is the first and the last word on the topic. This one speaks with a confident voice, welcoming other confident voices.

The authors’ accessible, conversational writing and is complemented by easy-to-navigate organisation. The reader can engage in the style of conversation that they choose: a collegial conversation, a mentor-mentee conversation, a knowledge gathering conversation. I find that I hear the text as I am reading it.

Insightful

In this edition the authors are as generous as ever in sharing their collective wisdom and experience which go well beyond transmitting plain knowledge. Grounded in sound theory, the authors provide their insights in a way which is both engaging and motivating. This edition broadcasts the pivotal message of previous editions: at all times think about yourself as a mediator and the effect you and your interventions are likely to be having on participants. I read the message as ‘keep in mind that the mediator is there for the participants’. This message extends to two related insights: the importance of professionalism and of self-care foremost. Typical of the positive frame of this book is that these insights are delivered through a lens of affirmation of practitioners.

Content

The content of the book is considerably updated to account, in particular, for the changes to Family Dispute Resolution in Australia, and for a broadening of the concept of ‘family’. New Zealand FDRPs will welcome Mediating with Families, following their recent introduction of Family Dispute Resolution.

Due to the welcoming tone and the accessible approach, just as with the first two editions, the reader can be thought of as accepting any one of multiple invitations from the authors. I will consider the two most likely: one could be to read with a family focus and the other to read with a mediation focus. Others include a cultural focus, a skills approach and a parenting focus. Each of these themes is anchored in particular chapters and developed throughout the book.

Families focus

In the big picture, for readers with families in front of mind, there is a variety of invitations including, for example, to appreciate families and their place in society and to consider the society that forms and is formed by families. There are more for the looking.  The reader whose primary focus is families and whose secondary focus is mediation, might start with Chapter 1 ‘Setting the context: the family’ then take that framework with them to Chapter 4, ‘Issues for separating couples’, Chapter 5, ‘Issues for couples: established and new relationships’ and Chapter 7, ‘Issues for parents and children’, in particular, the section entitled ‘The Family’s Sense of Self’ and Chapter 9 ‘Practice considerations’.

From the micro perspective, in one among many examples of family dynamics, Chapter 1, at 1.130, introduces ‘power and control’; chapters 4, 5, 6, 7 and 9 develop, analyse and exemplify the concepts that provide context for issues of power and control.

From a specialised perspective, Mediating with Families can be thought of as being oriented toward families whose degree of complexity is within approximately one standard deviation of the norm. The versatility of this book is such, however, that family complexity beyond that range is addressed in a number of ways. Every family is a complex family and some are more complex than others[i].  As Kaspiew et al (2014)[ii] have shown, complexity creates a need for holistic interdisciplinary approaches. Mediating with Families addresses complexity by taking a systems approach, that is, a holistic, interdisciplinary approach, summarised in figure 1.1 and in the two chapters on language and culture. The authors address many of the components of complexity including vulnerability, violence, safety, and abuse. Third, they identify a variety of family constellations including adoptive families, stepfamilies, families involved with surrogacy, single parent families, same-sex families and nuclear families. While the focus is as the title suggests, readers could choose to follow a pathway through Mediating with Families to add to their knowledge of families with complex needs, with respect to conflict and mediation.

Mediation focus

In the big picture, for readers focusing on mediation there is an invitation to consider mediation processes in all their permutations and another to develop and/or to review skills. To read as a mediator is to be invited to reflect both on mediation practice and on the self-as-a-mediator.

The reader who accepts the invitation to focus on the mediation process in the family context could start their pathway at Chapter 2 and follow on to Chapters 3, 6, 8, 9 and 10. Chapter 2 has been very usefully updated to consider four approaches to family mediation, a comment on diversity in approach, mediation frameworks, and philosophy, practice and process. I find the mediation frameworks especially helpful for reflecting on my own practice.

From a mediation practice micro skills perspective, one among many mediation skills that is developed throughout Mediating with Families is the use of agendas. Agendas and their vagaries are  considered in a variety of contexts across five of the chapters. Agendas can be tricky. Chapter 11 describes communication patterns to reach the phrasing of a robust agenda which in turn becomes the scaffolding for agreements.

From a specialised perspective, Chapter 6 includes mediation of wills and estates, Chapter 7, parent-adolescent mediation and Chapter 8, some aspects of elder mediation.

Mediation Participants

In 2008 when I reviewed second edition of Mediating with Families I was intrigued by what I read as the developing dialogue between the authors and the reader of the role of the mediator. developed throughout the book. This third edition deserves the same praise as the second, for this thread. On reading this edition I found myself also intrigued by the authors’ portrayal of the participants in mediation. For each main assertion of the authors, there is a practice application in the form of either a case study, followed by self-paced learning questions or a series of examples or a relevant Appendix. The authors are in touch with reality and ensure that the reader is too. Consistent throughout the case studies, the questions, the analysis and the examples, the empathy, compassion and respect of the authors for families in conflict, shines through.

Organisation

Finding your way around

The reader who is wondering how to investigate their choice of theme, will be pleased to know that the authors have identified the starting point, a descriptive contents pages and from there, each step of the way can be mapped in the comprehensive index. Think of the topic, decide the approach, start with the contents pages then shift to the index to find the topics and more. The advantage of being able to take this approach is that the constructs are in their setting. Everything you read raises awareness of the issues and your self-awareness as a mediator or trusted advisor.

For many of the authors’ assertions, there is a practical application in the form of either a case study, followed by self-paced learning questions or a series of examples or a relevant Appendix. The authors are in touch with reality and ensure that the reader is too. Consistent throughout the case studies, the questions, the analysis and the examples, the empathy, compassion and respect of the authors for families in conflict, shines through.

As well as the scope and detail of the book, the Additional Resources at the end of each chapter convey to the reader a reminder that there is much more to consider and much more that has been considered. To have identified and included the Classics in these sections acknowledges and affirms the foundations on which Mediating with Families and many contemporary texts are built. Footnotes provide another source for those wanting to excavate the archives. The inclusion of Booklets in the resources section is particularly family friendly.

Approach

Characterising the approach to each of these applications of models and theory are themes of inclusivity, consensus, relationship orientation, cooperation and self-determination.

Hub

From my perspective the hub of this book is introduced in Chapter 3, ‘What mediators bring to practice’. That is, this book assumes that improved practice is dependent on greater self-awareness. In each topic, the movement from unconscious unknowing to conscious unknowing to conscious knowing follows the pathways of mediator and mediation as it develops the role of the mediator.

Principles

Characterising the approach throughout the book are principles of inclusivity, consensus, relationship orientation, cooperation and self-determination; themes that recognise and acknowledge participants.

One of the techniques that integrates the subject matter is the way in which the authors exemplify the principles of mediation both in what they say and what they do. The book is an avatar of mediation. The practice of mediation is an inclusive one; it is the role of the mediator to be inclusive; Mediating with Families is inclusive. One among many of the indicators of inclusivity is the breadth of the list of excerpts used throughout the book.

Another of the fundamental principles of mediation is its focus on party participation. Mediating with Families provides ample opportunity for the reader to participate well beyond consolidating the concepts under discussion to internalising them in the practice setting. As a point of comparison, legal negotiation and litigation are premised on professional participation.

A mediator is tentative regarding content (facts) and assertive regarding process; as is Mediating with Families.

In the same way that mediation involves a peer-like relationship among mediator and parties, each with their different fields of expertise, the tone of Mediating with Families is one in which authors and reader are peers in a partnership, each with their different fields of expertise. The authors convey their expertise in an informal way which affirms the reader as expert in themselves and in their application of the authors’ expertise to their practice.

The authors ask the reader to look at the family situation as unique and to adapt the practice of mediation to suit the family circumstances. This is another of the fundamental principles of mediation: that it is situational and individualised.

A book entitled Litigating with Families could be expected to exhibit the principles of exclusivity of content, professional participation, hierarchical relationships, emphasis on precedent.

By absorbing the content in the way that it has been presented, the reader gains knowledge of the family and family disputes, self-development as a mediator and experience of the distinctive approach of mediation.

The content is provided from the general to the specific; from theory to practice concluding with language and culture, which is the underpinnings of all that has been before.

Over Coffee

Review_4In writing this review I have conducted my own dialogue with the authors, unbeknown to them! The welcoming and open style invites discussion. One of the comments by Mieke and Linda that I look forward to discussing comes from Chapter 2, on the topic of ‘Diversity in Approach’ in which they comment

Many mediators, however, do not maintain such distinctions in their practice and prefer an eclectic approach. These mediators approach the diverse situations that come to family mediation using interventions from a range of approaches that seem to meet the parties’ needs.

I read this as an endorsement of an eclectic approach. I have concerns about an eclectic approach from an integrity and internal consistency point of view both in terms of professionalism and in terms of cohesion of experience from participants’ point of view… to be explored over coffee.

Conclusion

Mediating with Families comes highly recommended. Its subject matter could be summarised as being concerned with access to justice for families. Its approach is one that resonates with the approach described by Hayes and Higgins[iii]: it advocates, albeit gently, for collective awareness, common narratives and coordinated approaches to promoting resilience, in this case through mediation for decision-making and dispute resolution.

Linda Fisher and Mieke Brandon are to be congratulated again. It is the families of Australasia who will benefit from their dedication, leadership and insights.

[i] Apologies to George Orwell

[ii] Kaspiew, R., De Maio, J., Deblaquiere, J & Horsfall, B.  (2014) Families with complex needs: Meeting the challenges of separation AIFS

[iii] Hayes, A. & Higgins, D. (2014) Complex family issues: collective awareness, common narratives and coordinated approaches to promoting resilience AIFS

The elegant camel and the resilient horse

Image

Federal workplace conflict management desk reference: a compilation of Alternative Dispute Resolution (ADR) Processes, Partners and Resources October 2013

Interagency Working Group, Conflict Management Section

This is ADR gold, particularly in the months following the discouraging closure of NADRAC. Before your hopes canter, I will point out that the term ‘Federal’ in the title refers to the Federated States of the United States of America. It could however refer to any federation, real or fictitious. The authors have produced a Desk Reference that epitomises the principles of ADR. It is inclusive, person centred, peer oriented and much more. It is intended to ‘give people working in this area a common understanding of the variety of [ADR] processes and approaches… and to ‘broaden the context within which they [ADR] are used.

There are four sections. Section I describes 17 distinct ADR processes under headings which cover who, what, when, where, how, why and much more including possible concerns about each approach. The information in Section I is universal, highly accessible and down-to-earth. Section II considers partnering opportunities which complement the aims and objectives of ADR processes and agencies. It is conspicuously USA oriented. The focus of this section on the USA provides scope for the Australasian imagination to consider what may be possible. In the literal sense of the word, Section III returns to the universal: using technology in dispute resolution. Section IV provides a short list of resources the breadth and depth of which again convey the theme of universality. There are resources on topics as far ranging climate assessment, communities of practice and appreciative enquiry. Section V is just one page that demonstrates the suitability for and the versatility of the processes described in Section I.

What is often said about committees and writing refers to a metaphor of camels and horses. This desk reference has been written by a committee that could have designed a camel if they’d set out to or a horse if that had been their aim. We in the ADR field are fortunate that they set out to write the Federal workplace conflict management desk reference: a compilation of Alternative Dispute Solution (ADR) Processes, Partners and Resources. They have written a document that has seamlessly integrated the strengths of each of the contributors to produce an elegant camel and a resilient horse.

I intend this to be the first in a series of quick comments on the items in my blogroll.

 

Where in the university does mediation belong?

The Kluwer Blog is one of the blogs I look forward to.  Recently two posts have created such interest that I have re-read them. I’d like to re-read all of them. I rarely make the time.

Deborah Masucci declared that it is ‘Time for another big bang in Alternative Dispute Resolution‘ and Constantin-Adi Gavrila similarly considered ‘What went wrong with mediation?‘.  There is a lot of good reading and rereading in these posts.  I’m making my very brief comments here after failing thrice on the Kluwer blog site to enter the number to identify myself as human.  I decided that either I am not human or the ‘ReCaptcha’  is human!

After reading Constantin-Adi’s post, and before I was stymied by ‘ReCaptcha’ I wrote:

Great article.  In my experience, including at a well attended Law Summer School yesterday, mediation has been reluctantly and perfunctorily accepted by the law profession, perhaps as a public relations exercise with both government and with  potential participants.  Under the wing of the legal profession, mediation suffers tokenism; controlled tokenism.  And ‘mediation’ is not mediation.  It is mostly settlement conferences: quiet and respectful banging heads together.

Expanding on the above comment, I’ve considered – what went wrong? As I see it, mediation has been sent to boarding school in the next suburb, instead of living with the family.  Mediation is a humanity. The skills of mediation are the skills of humanities.  The process of mediation is a process of humanities.  The substance of mediation is the substance of humanities, in the context of the law.  The interpersonal aspects of mediation are the subject of humanities.

Law schools have taken good care of mediation, for subject that is a ring in.  And that is all.  Mediation is not and never will be one of the priestly 11.  Mediation needs to go home  where it can be developed into an undergraduate degree.  As a humanity, it can be promoted to government, business and individuals in a way which is consonant with the philosophy  and principles of the humanities rather than in a way which is dissonant with the philosophy and principles of law.

Law schools can develop excellent courses in advocacy, representation and negotiation  for their students, the soon-to-be trusted advisors in mediation.

Mediators’ and trusted legal advisors’ roles are complementary.  Participants experience a holistic approach.

mediation roles mediator cascade 140123mediation roles professional support cascade 140123

Participants then have the best of both worlds,  worlds which are the antithesis of each other. Mediation is promoted well.  The mediation profession thrives as does the legal profession.  Importantly they thrive by cooperating in what I refer to as CDR (Complementary  Dispute Resolution).

Mediation: the skilful lawyer

I find that dispute resolution is portrayed as either lawyer-lead or mediator-facilitated. Like most binary analyses, this one is simplistic and exacerbates the antipathy between the capitulating and the creative approaches. People are complex. Solutions for people involve complexity. I prefer to have the best of both approaches: Complementary Dispute Resolution. In CDR  lawyers fulfill three interdependent roles: trusted advisors, champions of the process and consultants to all. In each role they, like all others involved, complement the roles of participants, mediators and personal supporters.

mediation roles professional support cascade 140123

Lawyers as trusted advisors

  • listen assiduously to hear their clients’ evolving expression of what is of importance and of concern
  • think creatively to assist their clients to identify core issues and later to contribute options
  • speak tactfully to assist their clients to clarify issues and to consider possibilities that could address their concerns and responsibilities
  • advise credibly to enable their clients to consider the impacts of other courses of action and to assess the risks of each
  • conclude supportively to assist their clients to commit to practical steps to move forward

Lawyers as consultants to all

  • listen assiduously to assist their clients to hear what is of concern and of importance to each of the participants
  • think creatively to assist their clients to contribute substantive options that are of potential benefit to each of the participants
  • speak tactfully to assist their clients to provide considered responses to each of the participants and feedback to the mediator
  • advise credibly to assist their clients to develop responses and options that are potentially productive for each of the participants
  • conclude supportively  to assist their clients to commit to practical steps to move forward with agreements reached by all

Lawyers as champions of the mediation process

  • listen assiduously to contribute to the attentive tone of the mediation and by confining most comments to the private sessions
  • think creatively about the purpose of each stage to encourage their client to participate in a way that maximises the effectiveness of mediation for all
  • speak tactfully to provide their clients and mediations in general with encouragement by noting progress stage by stage
  • advise credibly according to the purpose of the stage of mediation and to validate the mediator’s management of participants’ expectations
  • conclude supportively to affirm their clients and all present by commenting on participants’ commitment to the process

mediation roles professional support circles 140123

Mediation and lawyers: roles of lawyers in Complementary Dispute Resolution

I hear three common themes when I meet initially with each prospective mediation participant: that relationship breakdown is the cause and the effect of the dispute; that changes by the other person/people would resolve the situation; and that to date resolution has been pursued independently and in competition with the other(s). My perspective is that resolution involves others; it is a venture that is necessarily interdependent.  So, to me ‘resolution’ and ‘independently’ are a contradiction in terms. Independent pursuit of a solution inevitably becomes passive and/or adversarial. When it is adversarial people argue and disengage; lawyers contradict and compete; and friends divide and take sides. Passive ‘pursuit of a solution’ means waiting, being dependent on another to change their ways. Resolution is when, for each participant, the degree of satisfaction with a collectively agreed outcome sufficiently surpasses individuals’ degrees of satisfaction with the status quo.

In Complementary Dispute Resolution (CDR) participants, lawyers and support people  work cooperatively to maximise the likelihood of a satisfactory agreement being reached, if an agreement is regarded by participants as appropriate. Participants listen, connect and discuss; lawyers listen, advise and support; friends assist all round.

I’ve been reflecting in particular on the role of lawyers in CDR mediation,. My thoughts so far are that lawyers in CDR mediation, whether or not they attend the mediation, make a valuable contribution by fulfilling three significant roles. First and foremost is lawyers’ roles as trusted advisors to their clients; next is their role as champions of the mediation process; and also they can be consultants to all.

A CDR lawyer knows what mediation is and what it is not and so can complement the flow of the mediation process. An adversarial lawyer alternates between fighting the process and being in flight from the mediation. They handicap the mediation and disadvantage their client. This occurs particularly among lawyers who are yet to learn that mediation is not a settlement conference .

In an earlier entry, Mediation roles, I described briefly and in general terms how I see the roles of participants, advisors and support people and the mediator. Here I start to unpack the role of a skilled lawyer in mediation.

This blog entry takes off at a tangent from my entry of a fortnight ago Enquiry into Access to Justice when I had a fair bit to say about (actually, I bemoaned) the submission of the Law Council of Australia to the Productivity Commission. In response to the LCA’s defensive antagonism toward mediation, I mentioned the notion of Complementary Dispute Resolution (CDR) as my preferred way of mediating. In short, CDR is occurring when each contribution of each person in the mediation adds value for each of the participants. That is, when what the mediator does adds value for each participant and what each lawyer does adds value for each participant and what each participant does adds value for each other participant then Complementary Dispute Resolution is underway.

Lawyers as trusted advisors to their clients

In CDR mediation participants instruct their lawyers about their interests and are advised by their lawyers about their rights, which together contribute to participants reaching a robust, satisfactory agreement, if an agreement is appropriate.

As trusted advisors in mediation, I regard it as the role of lawyers to

  • follow the lead of their clients and of the other parties to assist with identifying  issues for discussion.
  • review the risk analysis of their client primarily in terms of interests then in terms of rights
  • accept instructions and advise  clients regarding their ATNAs and their current BATNA
  • fulfil the roles that Bobette Wolski explains in her fascinating PhD
    • advise clients of the law that applies
    • provide legal information
    • evaluate the merits of the case
    • project likely results in an adversarial setting
    • assess the likely litigated outcome
    • promote informed consent
    • guide clients toward responsible decision making
    • evaluate options from the point of view of their client and others

That is, the role of lawyers is to provide legal advice to complement the participant’s expertise both about themselves and their relationships with the other participants.

Lawyers as champions of the mediation process

In CDR mediation participants and their lawyers maximise the benefit to them and to the other participants of each stage of the process.

As champions of the mediation process, I regard it as the role of lawyers to

  • engage with the process, the mediator and all other participants
  • follow the lead of the mediator with respect to the process.
  • explain the aims of mediation to the client prior to the mediation
  • distinguish mediation from a settlement conference
  • support the participants and cooperate with the process
  • explain the purpose of each stage of mediation
  • tailor their advice to the purposes of each stage of mediation
  • regard each person in the mediation as pivotal to reaching an agreement

That is, the role of lawyers is to provide advice to complement the process.

Lawyers as consultants to all

In CDR mediation participants invite input from their lawyer that contributes to the progress of the mediation.

As consultants to all in the mediation process, I regard it as the role of lawyers to

  • observe  the mediation process
  • contribute comments as catalysts for progress
  • refer to  the principles of mediation when advising participants regarding feedback
  • assess for best practice
  • assess for ongoing suitability

That is, the role of lawyers is to contribute on the basis that the better the overall outcome the more their client will benefit.

In my next entry  I will summarise five of the skills of lawyers in CDR mediation that work well with my approach.

Choosing mediation

Each person is unique; each mediation is different from each other mediation.  Even so, I start every mediation by meeting with each person separately and at that meeting I explain the essence of mediation.

This is one of the diagrams that I use.

mediationis 140123 logo title background copyright

The first line explains what mediation is and the second line explains what mediation is not.  What I raise is that + differs on every dimension from v and that resolving agreed issues is an experience incomparable with the experience of accepting a pronouncement on a set of issues described by the law.