Music to my ears 3: Address by Wayne Martin AC, Chief Justice Supreme Court of Western Australia, Perth 6 March 2018

Mediation and court: diagrammatically distinct… experientially …?

This post is the third in a series of three:  ‘Music to my ears 1- 3’. It was prompted by a paper presented by  the Chief Justice of the Supreme Court of Western Australia, Hon Wayne Martin AC,  in March 2018.

Music to my ears 1‘ raises the possibility that there are some similarities in both the scope and the constraints of court procedure and mediation processes .

Music to my ears 2 explores the possibility of some similarities by transposing ‘court’ to ‘mediation’ to establish the extent to which the statements originally referring to court procedure can be read as broadly describing mediation processes.

This post, ‘Music to my ears 3’, builds on apparent similarities of the scope and constraints of court procedure and mediation processes by translating the comments of the Chief Justice into the concepts and then into the language of mediation to begin to explore the notion that it may be the language of each of the processes that contributes to them being perceived by many to be antithetical.

If that can be done meaningfully then I suggest that from participants’ perspectives, perhaps it is in part the language used by each that distinguishes one from the other. This possibility raises thoughts of participants receiving explanations of the two processes in terms of what they have in common and how they are distinct rather than the current situation of one process being seen to be the antithesis of the other; one process and its proponents being seen to be undermining the process and proponents of the other.

  • 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. p. 8 under the heading ‘The Constraints upon Adjudicated Outcomes’

Chief Justice re Court transposed to Mediation concepts and language

At mediation it is significant that the information is provided by participants and is the information that participants individually and collectively choose to present. Typically it is presented throughout the stages of the ‘top triangle’, where in the exploration stage everything that may become relevant to reaching resolution is aired in an environment of ‘all information is valid… maybe differently valid’. It is that information that is referred to when, during the stages of the second triangle, the mediator facilitates participants’ creation of options, followed by reality testing, filtering and then reaching agreement, as appropriate.

  • 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 concepts and language

At mediation the notion of truth is often conceptualised by participants as significantly similar recollections which can cause and can result from ‘workable truths’, that is, participants’ perceptions of reciprocated authenticity underpinned by acceptance (and possible disagreement) of  others’ perspectives.  These ‘workable truths’ appears to be present in a tenuous way throughout mediation for many participants.

‘Workable truths’ are person and therefore mediation specific. Mediation is future focused: the question of truth in mediation is a question of ‘workable truths’ projected to unknown and dynamic circumstances. In mediation, truth often refers to a commitment to future honesty, predicated on privacy.

  • 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 concepts and language

Mediations are private and consider only participants’ and constituents’ future focused interests, all of which, because they are developed from the past and are dynamic in the present, have a significant hypothetical element to them.

  • 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 concepts and language

At mediation the issues are those identified by the mediator and agreed by the participants. Typically the agreed issues form an agenda, each item of which is future focused, neutral and mutual. Agenda items can relate to any and all domains of participants’ decision-making: legal, moral, interpersonal, practical etc

  • 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 concepts and language

The outcomes of most mediations almost always remain private outcomes which results in little or no data being available for reporting or analysis. With no comprehensive sociological and statistical data available, participants often describe their mediation experience in a way that I shall summarise as ‘pioneering’. Any learning from other pioneers is due to word-of-mouth. Society remains unaware.

  • 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 concepts and language

Mediation participants are initially motivated by a constellation of motives. During the mediation their motives coalesce into reaching a durable, practical, private agreement and  in many situations, also to restoring and maintaining at least cordial relationships. Principles are far from the focus and ‘the truth’ (much of it inconvenient) has been relegated to the periphery.

  • Points for further pondering

Ho: From an objective conceptualisation of participants’ perspectives of their experiences, described in both the terminology of the court and the terminology of mediation, the procedures of the court and the processes of mediation are significantly similar.

H1: From an objective conceptualisation of participants’ perspectives of their experiences, described in both the terminology of the court and the terminology of mediation, the procedures of the court and the processes of mediation are significantly distinct.

It would be interesting to be able to measure, with validity and reliability, the experience of court and of mediation and of other forms of dispute resolution from the perspective of participants, constituents and society.

 

 

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

 

 

Selecting your mediator: all for one and one for all… updated

Now in 2019, after more than 23 years of mediating , I specialise in providing professional development for individual mediators and for very small groups of mediators.

This post describes some criteria which from my experience I think it wise to consider in your selection of a mediator. If it is a list of mediators in your region that you’re looking for, rather than criteria, I suggest you start here.

When you and the other person or people involved in a dispute have decided that you will consider mediation, it’s time to select a Mediator. The Mediator Standards Board explains why it is wise to choose an accredited mediator. I endorse all that the MSB has to say on the topic.

Over the years, in my practice and in complaints handling for Resolution Institute and other organisations, I have listened to clients explaining what they looked for in a mediator. In summary what I’ve heard is that people have sought out and been satisfied with a mediator who has experience, professionalism applied to the necessary people skills to keep each participant focused first on identifying their future-focused interests and then facilitating the creation of agreed outcomes for the future.

Your mediator is each participant’s mediator; their mediator is your mediator

It’s ironic that just when you and the other people involved are having trouble making joint decisions, it is important that you make a joint decision to have a mediator who is acceptable to all. Mediation participants tell me that there are numerous ways of selecting a mediator, including:

  • Sometimes one person takes the initiative and decides to meet with a mediator before mentioning it to other potential participants. They then make a recommendation to the other potential participants.
  • Sometimes participants reach a general decision to mediate then, by agreement, one person identifies a mediator.
  • Sometimes people decide on their mediator together, based on information, interviews and referrals.
  • Sometimes a mediator is appointed by an external body.
  • Sometimes a combination of approaches is used.

It can be a positive first step if you can select your mediator cooperatively.

On the other hand, realistically, if you select a mediator who is accredited, registered, experienced, professional and compassionate, you will be highly likely to participate in a more than satisfactory mediation.

To select your mediator cooperatively, start with an MSB accredited mediator. I suggest you then interview them about how, during each phase of mediation, they maximise each participant’s opportunity to

  • listen generously to what each other participant has to say
  • think productively about other people’s ideas
  • speak moderately throughout even when they feel quite heated
  • make wise personal and commercial decisions that preserve dignity and relationships
  • conclude satisfactorily with respect.

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Who is engaging whom? Make an informed decision.

You and the other people involved engage a mediator. A mediator does not engage you! I suggest that you and other potential participants design some questions to find out what you want to know before you decide on a mediator. As well as asking what mediator will do to assist you to fulfill your role, above, you can

  • Ask about experience

The experience that is relevant is the experience that the mediator has of adapting the mediation process to a wide range of circumstances. It is generally true to say that the mediator manages the process and the participants manage the content. You are looking for a process ‘expert’ in a mediator. You and your advisers, personal and professional, are the content experts.

  • Ask about qualifications

The qualifications that are relevant, in addition to the MSB initial accreditation and ongoing registration, may be indicated by academic qualifications (FDR), membership of panels (franchising), for example. .

  • Ask about tricky situations

‘What if …’ questions that address your concerns about mediation will provide you with decision-making information and show that you are thinking through the reality of mediation. A mediator is mediating only when they simultaneously and even-handedly work with each of the participants.

By asking the sorts of questions about tricky situations, qualifications and experience you’ll get a feel for how well you connect with the mediator and knowing the other people as you do, you’ll get a sense of how well they might connect with the mediator.

My comment is that if you get the impression that a mediator is listening to and speaking to you in the same way that they will listen and speak to each other person involved, then it’s likely you’re on to a good mediator.

In a nutshell, I suggest you select a mediator who you think is likely to spend most time listening respectfully to each participant; much time thinking compassionately about the circumstances; some time speaking optimistically … and then realistically. When you’ve got that far, I suggest you select a mediator who is likely to diligently facilitate an even handed mediation and who is likely to know when enough is enough and will conclude your mediation.

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If you’re stuck

If you are really stuck, one way forward is for all but one of the people involved to make a very short list of acceptable mediators which they provide to the other person who chooses the mediator from the list.

As you learn more about mediation, be open to changing your mind about your selection

What are the costs of changing your mind? To what extent might the benefits outweigh them?

In the same way that you decide on a builder, an architect, a pharmacist and medical practitioner is advisable to decide on a mediator. Just as initial discussions, advice and information from a competent builder, architect, pharmacist or medical practitioner may cause you to confirm their suitability or change your mind, so might initial discussions, advice and information from a professional mediator.

Having engaged your mediator provide them with feedback regularly and in private sessions ask them for feedback.

A competent, professional mediator will respond positively to your feedback.

You can find a list of reputable mediators here.

All the best!

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.

Mediation roles

Mediation Roles

Above, I’ve provided a link to a handout I’ve developed which provides a brief overview of roles in mediation.  I find it useful when I explain mediation to participants.  Other descriptions that I recommend are on the NADRAC [National ADR Advisory Council] site and the MSB [Mediator Standards Board] site.  I developed my description from the NADRAC one in particular.

The handout is a brief overview of roles in mediation.  In summary, the role of participants is to be responsible for the content of the mediation. They decide on the ‘what’ of their mediation.  Participants then take responsibility for their substantive decisions.  In some situations, the participants might choose to consult the mediator regarding the content.  The mediator may then decide to provide generic information; not advice.

The mediator is responsible for the process of the mediation, the ‘how’ of mediation.  The mediator might tentatively consult participants regarding the process in a way which maintains their even handedness.  They then take responsibility for their procedural decisions.