resolve kirschner
TRANSCRIPT
Goals Choosing a mediator as a client
Choosing a practice as a
mediator
Choosing tools within the
practice.
In the beginning ADR consisted of a number of
processes that could be used on matters the
subject of court proceedings to resolve those
matters. It had the benefit of speed and flexibility.
It lent itself well to a model of ADR assisted by an
ex Judge or a senior counsel.
Example: scheduling errors in the NEM.
What has Mediation become?
It became evident that the skills and tools
were useful for a wider application. The first
extension was within the skill set and existing
cultural milieu of the legal fraternity:
Example: the sale of shares in a high profile business.
There is a partnership dispute that has resulted in a
deadlock at the Board level. The lawyers for one party
have a potential buyer. They don’t want to put this option
on the table without ensuring there is an interest in a sale or the price may go up etc.
• To provide a resource in a settlement conference to
identify deadlocks and try and finesse a solution to them.
• Problem solving mediation
• Transformative mediation (e.g. conferencing)
• Conflict coaching
• Non binding evaluation
• Conflict assessments.
• The next extensions moved beyond the traditional Western
dispute resolution culture.
Each of these interventions looks to replace the dispute
into its context and use that context to assist with the
resolution of the whole issue of which the legal matter is
often but a part.
Perception and Law
Problem solving mediation
• Define the nature of the problem and work on
widening the options to get a more optimal solution.
The legal piece is just one of the strands.
• Example: The role out of software for a local council.
• Example: The local distributor is saying that it did not
receive the ceiling insulation that was sent.
Perception and Law
• Transformative mediation
• Work on the relationships to transform them. The legal piece
and
the problem are just strands.
• Lots of shareholder disputes (Example: Kevin Jacobsen
and Col Joye Dirty Dancing and the Entertainment Centre)
• Lots of workplace (Example: The Office in the NSW TAFE
where there are 5 people on stress leave in a Department
of 18)
Choosing a Mediator
Do we use the Court?
• It’s free
• It’s for the Court
• The process is predetermined
and it doesn’t offer us a bespoke range of
mediation processes.
• Mediators are like artists, they have a signature.
• Mediators are like Counsel, there are many
good people but choice matters.
It is important to be clear about what it is you are
trying to achieve. That will determine the process
refinement and the mediator.
The Mediator
What expertise would be useful to clean up the mess:
• Legal, Accountancy
• Emotional
• Other. (economics, engineering, group dynamics)
• To what extent must the mediator have these skills, harness them
understand them, challenge them?
Macro Wholefoods: $80million turnover no talking, love affair and a
psychic…;
Failed marriage across cultures with children and extended family
Choosing a Mediator
The relationship is over:
What is the goal:
• Resolve the past
• Enhance the present
• Expand and build capacity
What level of understanding/input do we need from the
mediator if any.
Choosing a Mediator
The relationship is ongoing:
Examples:
- Complaint by office manager 38 weeks pregnant
going on leave for a year and coming back to a
restructured workplace (clean the past)
- Distribution agreement in Aus (enhance it)
- Land Rights with Vic govt by newly established
Traditional Owner group (build capacity)
-Family redistribution of assets and life estate for grandma.
Choosing a Mediator
Choosing a Mediator- Culture
• How important is status to the clients on each side?
• Is this a formal/informal setting?
• What are the expectations of the parties with respect to
the mediator(s) personal status.
• What are the expectations of the parties re the mediator
role? (eg:legal/ family disputes)
• To what extent is acceptance of the person important.
• How is the dynamic likely to be affected by the
introduction of the person? (insider/outsider/gender)
Choosing a Mediator
Examples culture and status:
- Mediation between ASIC and an individual.
-European distributor and small rural Australian company
- Discussions between Arabs and Jews about sharing electricity
between two neighbouring towns.
- Boundary dispute between two neighbouring groups of
Aboriginal Australians funded by the Government.
Choosing a Mediator- Comms
What is the communication style of each party?
• Direct/indirect
• High Context / Low Context
• Detailed/ Big Picture
• Technical
Choosing a Mediator
Examples re Communication styles:
- American Navy and Japanese subcontractors on a base in
Okinawa.
- Partnership of an International Law Firm
- American owner and Australian licensee.
- Lawyers and engineers in a scheduling error.
- New Immigrant family from a traditional religious, patriachal
society.
Choosing a Mediator- costs
• What is the matter worth in terms of money?
• What are the consequences of it not being resolved (
think publicity, precedent lives)?
• What are the expectations of the parties with respect to
professional service costs (are they paying a large firm,
have they never used professionals before).
• What does cost mean to them ( does expensive = good in
their world)
• Who is paying? ( company, Govt, everyone)
Goals
• Thinking about the kinds of mediators and processes
available.
• Systematically matching process and dispute.
• Using some of the tools and techniques from mediation
more broadly in assisting clients.