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.

Mediation: an approach for using ‘Tips for reaching agreement’

This is typical of agreements reached in mediation with one proviso: each agreement is unique; none is typical.

This is typical of agreements reached in mediation with one proviso: each agreement is unique; none is typical.

I’ve previously mentioned that I commence each mediation by meeting with each participant separately. I encourage participants to be accompanied by a support person, whether a professional support person or a personal support person. Toward the end of the initial session I provide a sheet of Tips for reaching agreement, commenting  along these lines:

MH: “This is a sheet that I provide to each person who may be participating in a mediation.

“Whether it is a relationship matter, a commercial matter, a workplace matter or a family matter, I provide the same sheet of tips.

“I’ll give you a few minutes now to glance through them to see if any leap out at you. They may take a bit of studying after this session.

“I will be/will have given the same sheet to each of the other people involved in your mediation.

“The idea is that quite likely by now, you each have heard or you each feel as if you have heard, everything the other participants have to say… and you are possibly concerned that the mediation will be just more of the same… ‘same old…same old’?

“To give it the best chance and to be future focused, your mediation needs at least some elements of a fresh start. There are a number of things you can do and that I can do to create a fresh start.

“One of those things that I find works well is to put some of these tips into practice.

“What I will ask you to do, is to choose two or three of these tips. You know yourself better than anyone does and you know the other participants (whom I name) much better than I do. You are well placed to make a wise selection of tips that can really influence the outcome of this mediation.

“I have two criteria for you to use to make your selection. You may have others.

“The first is to choose two or three tips which are things you normally wouldn’t do.

“The second is to choose two or three tips which are likely to encourage the other participants(named)  to listen to you.

“When you’ve chosen the tips, it can be helpful if you can practice them a bit in day to day life leading up to the mediation.

“I will ask you which tips you are going to use in your mediation, privately, before your joint sessions commence. I’ll also check in with you in private sessions during your mediation about how the tips are working for you… and other aspects of the mediation as I mentioned earlier.

“It is my role to assist you to into practice the tips that you each choose and to assist you to put some of the others into practice too.

“I’ll give you an example of a recent mediation when one of the tips was particularly influential… (I provide a real, de-identified example)

Tip 23: Be generous at the end:  Whose generosity?


It is my observation that the ‘Tips’ sheet works in a variety of ways. Participants are pleased to have some precise steps to take; pleased to be able to have an expectation of constructive dialogue; pleased to have an expectation of reaching agreement; pleased to know that other participants will be approaching the issues according to the tips; pleased that other participants’ understanding of their changed approach is likely to be perceived as a commitment to agreement; pleased that providing the sheet is a routine part of my practice; pleased that the tips that are chosen remain private.