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TABLE OF CONTENTS Foreword....................................................................................................................................................... iii Preface............................................................................................................................................................ v Acronyms and Abbreviations....................................................................................................................... vii Chapter 1: How to Manage and Control Disputes: Alternative Dispute Resolution.................................... 1 Introduction............................................................................................................................................. 1 Disputes and Conflicts............................................................................................................................ 2 Choosing Alternative Dispute Resolution............................................................................................... 4 Dispute Resolution Methods................................................................................................................... 6 Designing Conflict Management Systems............................................................................................ 19 Mediation Essentials–Deskbook Overview.......................................................................................... 22 Notes..................................................................................................................................................... 23 Chapter 2: How to Make the Most of Mediation....................................................................................... 25 Introduction........................................................................................................................................... 25 Before You Go to Mediation................................................................................................................. 25 During Mediation.................................................................................................................................. 31 After You Leave Mediation................................................................................................................... 36 Chapter 3: How Professional Advisers Can Add Value to Mediation........................................................ 39 Introduction........................................................................................................................................... 39 Main Principles of Mediation............................................................................................................... 40 General Knowledge that Mediation Advisers Should Attain................................................................ 43 Assistance before Mediation................................................................................................................. 43 Assistance during Mediation................................................................................................................. 48 Assistance after Mediation.................................................................................................................... 52 Notes..................................................................................................................................................... 53 Chapter 4: How to Use Guiding Principles and Ethics to Ensure the Integrity of Mediation.................... 55 Introduction........................................................................................................................................... 55 Guiding Principles: Mediators Work to Ensure You Will Be Satisfied with the Process ..................... 55 Integrity: Mediators Are Committed to the Mediation Process and Ethical Principles ....................... 60 Competence: Mediators Know What They Are Doing......................................................................... 61 Impartiality: Your Mediators Are Not Your Lawyers—They Are Unbiased......................................... 62 Contribution to Advancement of Practice: Mediators Can Improve the Reputation of Mediation in General............................................................................................................................. 62 MEDIATION SERIES: MEDIATION ESSENTIALS | TABLE OF CONTENTS i Chapter 5: How to Draft Contractual Documents for Mediation............................................................... 65 Introduction........................................................................................................................................... 65 Mediation Clauses................................................................................................................................. 66 Agreements to Mediate......................................................................................................................... 69 Mediated Settlement Agreements......................................................................................................... 71 Notes..................................................................................................................................................... 73 ii TABLE OF CONTENTS FOREWORD The Mediation Series is a celebration of the long-term work of the International Finance Corporation (IFC), member of the World Bank Group, in helping client countries adopt and integrate mediation to increase the effectiveness of their conflict resolution systems. Since 2004, IFC has extended technical assistance to both governments and the private sector to ensure that mediation is established effectively. IFC’s projects cover the Balkans, East and South Asia, Sub-Saharan Africa, and the Middle East and North Africa and have led to a considerable increase in the use of commercial mediation. The success and the expansion of our mediation projects globally and the scarcity of material in Arabic have inspired the Mediation Series. The series offers a unique and comprehensive set of Alternative Dispute Resolution (ADR) learning resources for users, policy makers, lawyers, judges, and ADR professionals. The resources aim to support the growth and sustainability of mediation and ADR in the region and beyond. The Mediation Series consists of a three-book-package (Mediation Essentials, Making Mediation Law, and Integrated Conflict Management Design Workbook) that explores mediation-related topics in-depth. The Mediation Essentials deskbook serves as an orientation guide to ADR generally and to mediation specifically for users, advisers, and mediators. Making Mediation Law offers a robust perspective on how to design successful mediation policy and legislation. The Integrated Conflict Management Design Workbook offers a hands-on focus for designing efficient and effective dispute management systems with companies and organizations. The publications appear in both English and Arabic, except for the Integrated Conflict Management Design Workbook, which is in Arabic only. ABOUT MEDIATION ESSENTIALS As the title suggests, Mediation Essentials is the definitive deskbook on mediation. It brings together in one compact publication the essential knowledge and know-how on mediation. Mediation Essentials is the must-have book for mediators, lawyers, and other advisers, disputants, and anyone involved in conflict. It has been structured to appeal to a wide range of readers. Jean Denis Pesme Practice Manager, Middle East and North Africa Finance & Markets, World Bank Group MEDIATION SERIES: MEDIATION ESSENTIALS | FOREWORD iii PREFACE Mediation is one of the most frequently used alternative dispute resolution processes worldwide. Mediation provides faster, cheaper, and better solutions than a traditional court decision can. Benefits are important for individuals as well as for disputing businesses from the private sector and for public sector institutions. Understanding the principles, process, and skills of mediation is essential for anyone whose professional role involves managing disputes of any kind. CHAPTER OVERVIEW Mediation Essentials comprises five chapters and appears in both English and Arabic: Chapter 1: How to Manage and Control Disputes: Alternative Dispute Resolution Chapter 2: How to Make the Most of Mediation Chapter 3: How Professional Advisors Can Add Value to Mediation Chapter 4: How to Use Guiding Principles and Ethics to Ensure the Integrity of Mediation Chapter 5: How to Draft Contractual Documents for Mediation HOW TO USE THIS BOOK Mediation Essentials can be read from start to finish in a linear fashion; alternatively, it can be read out of order. The chapters are sequenced so that each chapter builds on the previous one, but they are also written as standalone publications. So if, for example, you already have some basic knowledge about mediation but wish to understand better the role of professional advisers in mediation, you may go straight to chapter 3. Alternatively, if your organization has already committed to engaging in mediation, you might go immediately to chapter 2. If you are a lawyer and wish to draft a mediation clause for your client’s business transaction, you might begin with chapter 5. As a result, there is inevitably some overlap among the individual chapters of Mediation Essentials. These overlapping sections serve two functions: ■■ They enable the chapters to function on a standalone basis. ■■ They reinforce important themes from a variety of perspectives. ACKNOWLEDGMENTS The publication of this manual was made possible because of the generous support of the Spain-IFC Technical Assistance Trust Fund and Switzerland’s State Secretariat for Economic Affairs (SECO) through contributions to the trust fund supporting the activities of the World Bank Group’s Investment Climate Advisory Services. The conceptualization and preparation of this deskbook was led by Fatma Ibrahim. The finalization was orchestrated by a team composed of Nina Pavlova Mocheva, Akvile Gropper, and Ejona Fuli from the World Bank Group. MEDIATION SERIES: MEDIATION ESSENTIALS | PREFACE v We are grateful to our team of peer reviewers: Nina Mocheva, alternative dispute resolution expert at the World Bank Group; Dr. Mohamed Abdel Raouf, director of the Cairo Regional Centre for International Commercial Arbitration (CRCICA); and Dr. Eman Mansour, director of the Investors’ Dispute Settlement Center, affiliated to the Egyptian General Authority for Investment and Free Zones (GAFI). This manual was edited by Publication Professionals, LLC. Design was by Aichin Lim Jones and Amy Quach. We would also like to thank Alex Azarov and Crystal Chin for their contributions and assistance. Nadja Alexander, Singapore, May 2016 Academic Director, Singapore International Dispute Resolution Academy Hon. Professor, The University of Queensland Senior Fellow, Dispute Resolution Institute, Mitchell Hamline School of Law Fatma Ibrahim, Cairo, May 2016 World Bank Group Jean-François Roberge, Montreal, May 2016 Professor and Director of Dispute Prevention and Resolution Program, Faculty of Law, Université de Sherbrooke vi PREFACE ACRONYMS AND ABBREVIATIONS ADR Alternative Dispute Resolution arb-med-arb arbitration-mediation-arbitration process DRC Dispute Resolution Counselor IMI International Mediation Institute MOU Memorandum Of Understanding MSA Mediated Settlement Agreement NADRAC National Alternative Dispute Resolution Advisory Council (Australia) MEDIATION SERIES: MEDIATION ESSENTIALS | ACRONYMS AND ABBREVIATIONS vii CHAPTER ONE How to Manage and Control Disputes: Alternative Dispute Resolution CHAPTER ONE How to Manage and Control Disputes: Alternative Dispute Resolution INTRODUCTION This chapter will introduce you to different ways of managing conflict when you are involved in general and specific disputes. It also offers a framework for understanding dispute resolution. Disputes are part of life, and we all experience them sometimes. They give us an opportunity to solve problems and to improve relationships, but they carry a risk of being destructive if not managed well. When we think of disputes, we often think of going to court to obtain a court decision. Lawyers are often involved in this process, assisting each side of the dispute. Courts have demonstrated—and continue to demonstrate—their value by promoting the rule of law, administering people’s rights and obligations, and maintaining the relevance of social norms through law reform. Disputes are part of life, and we all experi- The process of going to court is called litigation, and it can also have ence them sometimes. They some disadvantages. Litigation can cost a lot of money and take up a lot of your time. It is a public process, which means that the details give us an opportunity to solve of your dispute are on public record. Litigation is also a formalistic problems and to improve rela- and legalistic process in which you will have little say. tionships, but they carry a risk of being destructive if not This chapter outlines some alternative processes to litigation that offer managed well. disputants certain benefits that may not be available in a court. These benefits include informality, low cost, privacy, and a greater say in the outcome of the dispute. These processes are known as alternative dispute resolution (ADR) because they offer an alternative to the court process of dealing with disputes. ADR processes involve a broad spectrum of dispute resolution mechanisms with different characteristics to suit every kind of dispute. These processes range from facilitative ADR, which focuses on managing and guiding negotiations between you and the other side, to advisory ADR, which involves greater input into the substance and merits of your dispute, MEDIATION SERIES: MEDIATION ESSENTIALS | CHAPTER ONE 1 and to determinative ADR, which involves someone things. So it is important not to be afraid of disputes else, such as a judge, making a decision that is and not to avoid them. You can use the constructive binding on you and the other side.1 potential of disputes by managing them yourself or finding someone to help you. DISPUTES AND WHAT ARE WAYS TO RESPOND CONFLICTS TO CONFLICT? Think of a recent dispute in your life. How did you The term dispute generally refers to a conflict that react to the dispute, and how did you try to manage concerns a specific set of issues and has escalated. it? Each of us has a habitual style of reacting to a The term conflict is more general and can refer to dispute. Some people feel strongly about defending a state of tension between you and another person. themselves in a dispute and will work actively to However, in everyday language the two terms are get what they want. Some people try to ignore the used interchangeably. Accordingly, in Mediation dispute by avoiding conversations with the other Series: Mediation Essentials, the terms dispute and person or by changing the subject when the dispute conflict are used interchangeably and consistently arises. Some people try to find a fair compromise— with general usage. giving something to the other person but getting something for themselves too. Some people do not WHAT IS A DISPUTE OR A like disputes and are willing to lose something just CONFLICT? to resolve the dispute. They may do something or give something just to satisfy the other person and Disputes are a normal part of life. They are often a make the tension of the conflict go away. Are any of disagreement about the following: these styles similar to yours? ■■ Needs or wishes ■■ Values or beliefs There is yet another style of managing a dispute, ■■ Communication styles one that involves talking to the other side, trying ■■ Ways to do things to understand what the dispute is really about, and ■■ Ways to interpret information trying to find a solution that will satisfy everyone ■■ Priorities involved. This style is similar to trying to find a fair ■■ Resources, such as money compromise, but the analysis of the dispute is deeper ■■ Power such as authority in the workplace or and the resulting solution better (and often more political or institutional positions (for example, creative) than a simple compromise. It is described the chief executive officer of a corporation who as a collaborative style and is used in some dispute holds a lot of power) resolution processes such as mediation in certain circumstances. Disputes can involve emotions, which affect how we think and communicate. We can say things There is no right style to use when resolving we normally would not say, and we can behave disputes. Different styles may be appropriate for irrationally. Disputes can cause physical harm but different circumstances. Maybe your style has can also harm our relationships. worked for you and you are happy with it. What is important is to become aware of how you react It is interesting to note that disputes can also be to disputes and how you manage them so that you constructive. If they are managed well, disputes can can determine whether another style could give you allow the people involved to learn something new, better results. change their opinion, or improve ways of doing 2 HOW TO MANAGE AND CONTROL DISPUTES: ALTERNATIVE DISPUTE RESOLUTION WHAT ROLE DO EMOTIONS calm and respectful—by doing so, you will help PLAY IN CONFLICT? them to gradually do the same. Acknowledging their emotions can make them feel heard and help Conflict is often fueled by emotions, and, in turn, to diffuse destructive emotions. If you see that conflict fuels emotions. A simple argument can emotional outbursts are hindering communication, escalate to a heated, and even violent, confrontation suggest that everyone take a break and discuss the very quickly. When people suppress negative problem at another time once people have calmed emotions, even a minor issue can cause them to down. explode at someone, creating a dispute. Be aware of emotions, both your own and those of others—they WHAT ARE SOME GUIDELINES can make it difficult to resolve a dispute rationally. FOR PREVENTING DISPUTES AND MANAGING CONFLICT? Being aware of your own emotions will help you prevent disputes and manage conflict. We often do Now that you have a better understanding of not notice how emotional we are until it is too late conflict, here are some suggestions to help you and we have done or said something we later regret. prevent situations in your life from escalating into Awareness of your emotions improves with regular disputes: practice. Pay attention to signals (what is visible) ■■ Give people an opportunity to express their view and symptoms (what you feel but is not visible). even if you disagree with it. Common symptoms of emotions like anger or ■■ Listen carefully while someone speaks and do fear may include a faster heart rate, sweaty palms, not just think about what you want to say. difficulty expressing yourself, an upset stomach, ■■ Clarify any uncertain issues or ambiguous dilated pupils, and tightened muscles. Common statements. signals of anger or fear include crossing your arms, ■■ Ask what people want and why they want it. aggressive body language, clenched teeth and fists, ■■ Try to see the situation from the other person’s scrunched eyebrows, and a loud voice. point of view. ■■ Point out any interests you have in common with Becoming aware of your emotional state gives you the other side. more control over your words and actions. You ■■ Ask open questions when possible. can try different techniques to reduce the physical ■■ Ask how the other person wants things to be in and psychological effects of emotions on you. For the future. example, the simplest technique is to take some ■■ Deal with problems in a relationship effectively deep breaths while counting slowly to 10 in your before they cause a dispute. head. This technique will slow your heart rate, calm ■■ Deal with bothersome people or situations you down, and reduce the effects of emotions on effectively and do not let your emotions your thinking. You may also need to take a break to accumulate. calm down and clear your mind—ensure that you take the time to do so. It can be very important to HOW DO YOU COMMUNICATE your ability to think and act in a constructive way. CONSTRUCTIVELY? Recognizing when other people are becoming Disputes are often escalated by destructive emotional will help prevent disputes and manage communication. This is communication that conflict. Often when emotions run high, people intends to personally hurt the other person, makes don’t think rationally, and they may make strong a negative and unfounded judgment, contains statements without thinking things through. Do exaggerations and generalizations, and is sarcastic not take these statements personally. Instead, stay or offensive. To prevent disputes, avoid destructive communication such as the following: MEDIATION SERIES: MEDIATION ESSENTIALS | CHAPTER ONE 3 ■■ Personally hurtful statements like “You are CHOICES ABOUT HOW TO DEAL useless” WITH YOUR DISPUTE ■■ Exaggerations like “You are the worst employee I’ve ever hired” The following questions can help you decide how ■■ Generalizations like “All these people are liars” you want to manage your dispute: ■■ Negative and unfounded judgments about people ■■ What relationship do you want to have with the ■■ Statements that change the subject other side in the future? ■■ Sarcasm ■■ How much time and money are you prepared to ■■ Offensive or rude language spend to sort out the dispute? ■■ How much control do you want over the dispute If you are unsure about your communication, think resolution process? about what it would achieve. If it is to communicate ■■ How much control do you want over the result? some information, to obtain information, to clarify ■■ How do you think the other side wants to manage an issue, to stimulate a discussion, or to express the dispute? your interests, then it is likely to be constructive. ■■ How do you feel about having an independent If the aim of the communication is to put the person helping you resolve the dispute? other side down in the hope of fulfilling your ■■ How do you envisage that an independent person desire for revenge, then it is likely to have a might be able to help you and the other side destructive rather than a constructive impact on resolve your differences? resolving the problem. To prevent disputes, choose ■■ How formal or informal do you want the dispute constructive communication instead of destructive resolution process to be? communication as much as possible. If you have been unable to prevent a dispute from developing, BENEFITS TO ALTERNATIVE you may need to consider methods of dispute DISPUTE RESOLUTION resolution. Alternative dispute resolution processes offer you the following benefits to varying extents: CHOOSING ■■ Privacy and confidentiality ALTERNATIVE DISPUTE ■■ Flexibility ■■ Control RESOLUTION ■■ Cost minimization One decision that you will need to make is whether Privacy and confidentiality to try to manage your dispute alone or with the help of someone else. If talking to the other person ADR processes are generally private and largely (sometimes called negotiating) is not working, then confidential in contrast to court processes. Most you could look for help from someone such as the court processes are open to the public, which means following: that anyone, including the media, can observe your trial and report it. In contrast, participants ■■ A person trusted by everyone involved in the in ADR processes are bound to keep information dispute about what happens in mediation confidential. This ■■ A lawyer or another professional adviser requirement gives disputants a lot more freedom ■■ An ADR practitioner, for example—a mediator to say what they want without fearing that it ■■ An ombudsman could be used against them later. In addition, the ■■ A judge principle of confidentiality means that information revealed during ADR cannot be used as evidence 4 HOW TO MANAGE AND CONTROL DISPUTES: ALTERNATIVE DISPUTE RESOLUTION in a later court process. The privacy of ADR makes what you want or you lose and have to accept the disputants more comfortable to discuss the dispute decision of the judge. In ADR, different processes without fearing that someone could form opinions will offer different types of outcomes. For example, or negative judgments about them. in mediation you control the outcome of the dispute and are empowered to find a creative solution that Flexibility fulfills your needs. Such agreements are usually more reliable and durable than decisions imposed ADR processes offer different types of process by a judge, which can be appealed. Mediation also structure. At the same time, the private nature of allows for the continuation of your relationship ADR permits you to tailor each ADR process to suit with the other side and for the preservation of your your needs. For example, depending on the specific reputation and goodwill. For example, a company ADR process, you may be able to have input into can keep a trustworthy relationship with its the following: customers or investors. Moreover, you will improve ■■ Time your conflict resolution skills and possibly prevent ■■ Place disputes in the future. ■■ Level of formality ■■ Choice of ADR professional Cost minimization ■■ Cost of the process ■■ Other procedural aspects The cost of legal advice, legal representation, and court fees is usually high. The long duration of A court process usually has a rigid framework one court cases also means that costs add up. ADR has must operate within, and you must seek permission the advantage of being cheaper than litigation in from the judge if you want to change something. most cases. The more formal and legalistic the ADR In contrast, mediation is bound neither by strict process, the more expensive it becomes (although legal rules of evidence nor by set procedures of it is usually still less expensive than court). For presenting your case. example, arbitration is a relatively formalistic and legalistic ADR process. Arbitration is generally Control more expensive than mediation, the latter process being characterized by high levels of flexibility When you manage your dispute in court, the most and informality. In mediation, your dispute may active people will be the judge and the lawyers. You be resolved in just a few weeks (preparation for will passively participate, usually doing what your the mediation and the mediation session itself); lawyer advises and accepting what the judge says. litigation in court can take several years. ADR can give you more control of managing your dispute. Depending on the ADR process, you may Studies conducted in different countries show be able to make choices such as these: that using ADR, including mediation, could save ■■ The type of process to use you between 50 percent and 97 percent of the ■■ The ADR practitioner to help you total costs of going through court. Compliance ■■ The extent to which professional advisers are with agreements resulting from mediation (called involved mediated settlement agreements) is high, usually ■■ The issues to discuss (including nonlegal issues) between 50 percent and 85 percent. There is usually a high level of satisfaction with mediation, Most important, your choice of ADR process and this satisfaction leads to mediated settlement influences the type of solution that will be available agreements that are sustainable. for your dispute. In court, you either win and get MEDIATION SERIES: MEDIATION ESSENTIALS | CHAPTER ONE 5 TEN GUIDELINES What is negotiation? Here are 10 guidelines to help you choose an We all negotiate. It can be a negotiation between a appropriate process and help you manage your parent and child about bedtime, between a husband dispute as effectively as possible: and wife about household finances, between an 1. Clarify all of the issues in the dispute and all of employer and employee about a pay raise, between the factual details as much as possible. potential business partners about a contract, between warring nations about a cease-fire. 2. Seek support if you feel that you need it or are Negotiation involves people trying to ensure that unsure. they get what they want. You and another person 3. Look for the simplest way to resolve your can resolve your dispute through direct negotiation. dispute. Direct negotiation can include these actions: 4. Look for ways to minimize the costs of your ■■ Listening and being heard by each other dispute while still managing it in an appropriate ■■ Working out what the disputed issues are way. ■■ Working out what everyone agrees on 5. Try to resolve your dispute as soon as possible, ■■ Working out what is important to each person but do not make hasty decisions. ■■ Aiming to reach an agreement ■■ Working out options to resolve each issue 6. Get as much information as possible before ■■ Considering what to do if no agreement is choosing the ADR process that is appropriate reached2 for your dispute. 7. Try to resolve your dispute using negotiation. When is negotiation suitable? If that is not successful, then use ADR. If ADR does not work out for you, only then use a court When you have a dispute, you can decide that you or tribunal as a last resort. do not need or want the assistance of anyone else, and you can try to resolve it by negotiating directly 8. Expect effective, affordable, and professional with the other side. Various factors will influence ADR services. Complain about ADR services your wanting to choose negotiation rather than that fail to meet minimum standards. litigation or ADR to resolve your dispute. These 9. Describe ADR processes to other people include having a situation in which the following accurately and consistently. conditions apply to both sides: 10. When you are trying to resolve your dispute, ■■ Have the ability and intention to use constructive remember to be patient when someone else is communication speaking and to listen carefully. You will get a ■■ Do not need assistance to communicate or make chance to speak. decisions ■■ Want to maintain a continuing relationship ■■ Want to control the outcome of the dispute rather DISPUTE RESOLUTION than accept an imposed outcome ■■ Want to keep discussions confidential METHODS ■■ Want to find creative ways to resolve the dispute that satisfy both sides NEGOTIATION Negotiation is one of seven dispute resolution Even if not all of the above factors are present, you methods addressed in this chapter. The others are can still try direct negotiation with the other side. If mediation, conciliation, neutral evaluation, use of it is not successful, then you can consider alternative an ombudsman, arbitration, and use of the courts. methods of resolving your dispute. Negotiation 6 HOW TO MANAGE AND CONTROL DISPUTES: ALTERNATIVE DISPUTE RESOLUTION may not be suitable when your relationship with the MEDIATION other side is very negative and you feel that direct negotiation may cause more harm and make the Mediation is similar to negotiation, but it has some dispute worse. important differences. How can you negotiate well on What is mediation? your own?3 In the previous section, we discussed how you could To make the most of your negotiation, you negotiate directly with another person to resolve should prepare thoroughly and use constructive your dispute. Mediation occurs when you involve communication and strategies during the an impartial, conflict resolution intervener—the negotiation. Preparation can include these tasks: mediator—to assist you and the other side with negotiations. Hence, mediation can be called ■■ Thinking about what you want and why you facilitated negotiation. During direct negotiations want it you may reach a point when you and the other ■■ Thinking about what the other side wants and side are stuck in your positions and cannot find why any middle ground or satisfactory solutions. It’s ■■ Thinking of options for outcomes that satisfy also possible that the communication between you what everyone wants and the other side is so bad that you are not able to ■■ Thinking about what you will do if you cannot constructively negotiate any outcomes. reach an agreement by negotiation ■■ Seeking advice or a more objective view from When direct negotiation is not working, you may someone you trust be more successful with the help of a mediator. The mediator can help you and the other side to do the During negotiation, you can increase your chances following: of reaching an agreement by doing the following: ■■ Listen to and be heard by each other. ■■ Be “hard on the problem”—discuss all the issues ■■ Work out what the disputed issues are. involved in the dispute. ■■ Work out what everyone agrees on. ■■ Be “soft on the person”—treat the other side ■■ Work out what is important to each person. respectfully and do not blame or try to dominate ■■ Attempt to reach an agreement that would work. the other side. ■■ Develop options to resolve each issue. ■■ Focus on the issues in dispute, not the personalities ■■ Develop options that take into account each of the people involved. person’s needs and desires. ■■ Emphasize any interests or options that you and ■■ Assess the options to find an outcome that the other side share. everyone can live with.4 ■■ Be creative when thinking about options. ■■ Avoid unfair tactics. As stated by the National Alternative Dispute ■■ Manage your emotions. Resolution Advisory Council (NADRAC), “a ■■ Make sure that any ambiguities are clarified and mediator can help you and the other participants that everyone understands each other. have a respectful, evenhanded discussion and ■■ Look for an outcome that will work for everybody. decision-making process. Your role is to listen to the other points of view, contribute to the discussion, and make decisions.”5 MEDIATION SERIES: MEDIATION ESSENTIALS | CHAPTER ONE 7 Mediation is not about deciding who is right or you have with mediation. For example, mediation wrong, who is innocent or at fault, and who should may be a good choice if the following conditions be declared the winner and the loser. Mediation apply to you and the other participants: is about looking to the future. The focus is not on ■■ Think a mediator can organize a respectful who said or did what in the past. Instead, the goal discussion about the issues is to find a practical solution and settlement that ■■ Feel safe in the presence of each other is acceptable to everyone involved, considering ■■ Want a conflict resolution intervener to assist the the different interests while seeking to preserve discussion business or other relationships. The illustration in ■■ Want to determine the outcome yourselves box 1.1 highlights how mediation can help achieve ■■ Want to maintain an ongoing relationship better outcomes for everyone. ■■ Want to keep discussions confidential ■■ Want to find creative ways to resolve the dispute, When is mediation suitable? such as an outcome in which everybody’s needs Mediation should be suitable in most cases and are satisfied (a win–win outcome)6 unsuitable in some exceptional cases. Mediation is suitable in most cases because it brings many It is usually worth trying mediation, even if many of benefits and is unlikely to negatively affect your the listed factors are absent. However, some factors dispute even if the mediation does not result in might indicate that your dispute may be unsuitable an agreement. Even if you try mediation and do for mediation. For example, if you not reach an agreement, you are likely to gain ■■ Do not feel safe when communicating (such as something from the process. talking or e-mailing) with the other participants, or Various factors may make your dispute suitable for ■■ Are forced against your will to participate by the mediation. The greater the number of these factors other people involved in the dispute.7 present in your dispute, the higher the success rate Box 1.1: The importance of peeling away to the heart of the dispute A parent walked into the kitchen and found two siblings fighting over an orange. Both children insisted that they needed the whole orange, but there was just one left. Not having the time to deal with their arguing, the parent just decided to split the orange in two and gave one half to each child, which seemed to be a fair resolution of the argument. Later that day, the parent realized that both children were still unhappy and understood why. The younger child had wanted the entire orange’s peel for a cake and the older child wanted the entire orange’s pulp to make juice. With just half an orange, there could be no cake and there could be no juice. Everyone was disappointed. This story illustrates that it is sometimes not productive to focus only on what people want in a dispute, without understanding their underlying needs. And it is important to be patient, to avoid making too many assumptions based on first impressions, and to dig deeper to find out what outcome will really satisfy everyone and resolve the dispute. Good mediators do all of these things! 8 HOW TO MANAGE AND CONTROL DISPUTES: ALTERNATIVE DISPUTE RESOLUTION Table 1.1 lists the main factors that indicate whether for mediation, conciliation or other ADR processes your dispute may be suitable for mediation. It is may be suitable. not exhaustive but gives you a list of factors you can discuss with your adviser to decide whether Even though a dispute may not appear to be suitable mediation is an appropriate option for managing the for mediation at first, you should remember to dispute. Using this table, you can make an informed review the situation frequently to assess whether or decision about moving forward. Remember to not mediation or another ADR process may become consider all factors in the context of your dispute appropriate later. It is not easy to assume that a rather than relying on factors individually to dispute is unsuitable for mediation. It is wise to determine the suitability of mediation. Where assume that practically every dispute is likely to be factors indicate that the dispute may not be suitable suitable for mediation at some time in its life cycle. Table 1.1: Determining suitability of mediation to deal with your dispute Factors indicating mediation is suitable for Factors indicating mediation may NOT be your disputea suitable for your dispute Everyone is willing to negotiate. At least one side is not willing to negotiate (sometimes this position can change during mediation). Everyone wants to resolve the dispute quickly. Conflict has escalated too far. Everyone wants control of the process and outcome. Your client has already tried to mediate the dispute unsuccessfully. Everyone wants a tailored solution rather than a At least one side wants to obtain a legal precedent. court decision. Everyone wants a commercial solution. Impending expiration of limitation period for legal action.b There is a need to focus on a future relationship. Excessive power imbalance. Everyone has some common interest(s). A disputant has health problems preventing participation in mediation. Everyone is fatigued by the dispute. At least one side is only interested in delaying the dispute. Everyone wants to manage (or even terminate) At least one side wants to use mediation just to the existing relationship amicably. prepare for litigation. There are multiple conflicts between the two sides. At least one side participates in mediation only to comply with a court referral. Everyone wants to resolve dispute confidentially. At least one side will not participate in good faith. Everyone wants to minimize costs. At least one side perceives that going to mediation will be a sign of weakness. Everyone wants an opportunity to vent and to have At least one side wants to emotionally hurt the other emotional closure. side. Everyone wants a durable solution with which Complete lack of trust or willingness to comply with everyone will comply. any future agreement. a. If a factor applies only to one disputant and not the other, it could still mean that your dispute is suitable for mediation. However, you should explore why it does not apply to everyone and if this would be a problem during mediation. b. However, mediation may work after initiation of legal proceedings. MEDIATION SERIES: MEDIATION ESSENTIALS | CHAPTER ONE 9 What does a mediator do and There are some things that mediators do not do. not do?8 They do not do the following: ■■ Take sides. It’s important to understand the role of a mediator. n They are impartial and are there to assist each Conflicts between a mediator and participant participant. can arise because of unrealistic or inaccurate ■■ Make decisions. expectations. A mediator does not resolve the n You and the other participants make decisions. dispute for you or solve your problems. The ■■ Dictate what to agree to. mediator’s role is to help you and the other side n You decide what to do, including whether to solve your problems yourselves. Ideally a mediator stay at mediation. acts like a catalyst, bringing disputants together ■■ Decide who is right or wrong. in new ways and opening up new pathways for n Mediation is not about making judgments; the constructive communication. A mediator can help focus of mediation is on finding an outcome in these ways: that everyone can live with. ■■ Designs a mediation process to suit your ■■ Give legal, financial, or other expert advice. circumstances n Your lawyer can give you legal advice before, ■■ Helps you decide whether mediation is suitable during, and after mediation if you choose. for your dispute n Your financial adviser can give you financial ■■ Brings the appropriate people together advice before, during, and after mediation if ■■ Explains the way the mediation process will you choose. work ■■ Provide counseling. ■■ Provides a supportive environment n Your psychologist, psychiatrist, or counselor ■■ Sets the guidelines or ground rules for how the can give you support before, during, and after mediation will work mediation if you choose. ■■ Assists you and the other participants in understanding each other’s point of view Sometimes the mediator can act as a “messenger.” ■■ Helps you and the other participants stay focused He or she listens to you and the other participants on resolving the dispute separately and communicates ideas between you. ■■ Helps you and the other participants escape This is called “shuttle mediation” because the negative communication cycles mediator shuttles between participants during the ■■ Helps you and the other participants communicate process. Unless there are safety concerns, it is constructively always advisable to speak directly with the other ■■ Clarifies any uncertainties or misunderstandings side and not rely on messengers like the mediator during discussions or a professional adviser.10 ■■ Makes sure you and the other participants know and understand what issues have been agreed on How does the mediation process ■■ Manages interactions so that they are fair work? ■■ Helps you and the other participants decide whether possible solutions are realistic When you participate in a mediation process, it is ■■ Supports you and the other participants as you important to remember that the process is essentially try to reach a final agreement that you all agree an assisted negotiation. Mediation addresses both is appropriate the factual issues and the legal issues, but “the law” ■■ Refers you to other services that can assist you9 is not the focus of the process. Instead, mediation emphasizes the underlying interests of you and the other people involved in the conflict, such as personal, business and commercial, family, social, 10 HOW TO MANAGE AND CONTROL DISPUTES: ALTERNATIVE DISPUTE RESOLUTION and community interests. Mediation is about record will be made. Information given or statements creating a safe space and a creative environment made during the mediation process cannot be in which you and the other side can explore each admitted as evidence in any subsequent judicial other’s interests. This environment will help you process. Mediation does not affect your legal rights generate options with a view to resolving your or the legal rights of the other side in relation to any dispute. The goal of mediation is to find a mutually subsequent proceedings, for example in arbitration acceptable solution that adequately and legitimately or court. satisfies the needs, desires, and interests of both you and the other side. If an agreement to resolve a dispute is reached during mediation, the best practice is to put it in writing. It Because the mediator needs to understand all the can then become a binding and enforceable contract different points of view, it is essential that you between you and the other side. People usually attend the mediation in person. Mediation requires comply with their mediated settlement agreements active participation and decision making; therefore, because they have created a solution that works for a corporation should only send to mediation them. sessions an authorized representative with the instructions and authority to settle. Your lawyer or You can use mediation as soon as your dispute other professional adviser can attend the mediation arises. You can use a mediation center, which with you, but it is not essential. handles the administrative issues of mediation (such as hiring mediators and offering mediation Although mediation is a collaborative process rather rooms), or you can directly hire a mediator who than an opportunity to defeat the other side, you will will take care of the administrative issues. In the still have the opportunity to argue your position and Middle East and North Africa region, an increasing express your feelings and concerns—this can be number of domestic and international institutions, important and cathartic. It is therefore important to either private or public, administer mediations come to the mediation process prepared. and maintain a roster of certified mediators. As a general rule, starting mediation earlier is better to You must participate in the mediation process in avoid escalation of tensions, which tends to occur good faith, be open with everyone, and cooperate when the dispute continues for too long. People actively in searching for a solution. The mediation become stuck in their positions and generally start session is private. Only the mediator, you, and your to fear losing face.    authorized representatives and advisers will be permitted to be present during the mediation. You Mediation may be voluntary, court ordered, or may end the mediation process at any time, even required as part of a contract or external dispute unilaterally. resolution arrangement. For example, in some countries, a practice has developed in which courts The mediator is not your opponent and is not your take the active step of suggesting to the people in lawyer or adviser. The mediator is a guide that dispute the possibility of starting mediation after a you can trust knowing that anything you say will case has been initiated. In most legal systems, it is be kept confidential unless or until you allow the possible for people to ask for the court’s permission mediator to disclose it. The mediator might also ask to pause the proceeding, giving them time to settle to have private discussions with you and the other their dispute. person separately. Mediators regularly deal with disputes in the The mediation process is confidential because the following sectors: agriculture, residential goal is for everyone to speak freely. No formal property, construction and engineering, energy, MEDIATION SERIES: MEDIATION ESSENTIALS | CHAPTER ONE 11 oil and gas, banking, financial services and take different forms and can be offered on various insurance, intellectual property, technology and topics: telecommunications, maritime, personal injury, ■■ Legal or technical information related to the professional negligence, shareholder and family substance of the dispute business disputes, supply and distribution contracts, ■■ Procedural matters in conciliation, litigation, or transportation, venture capital, and others. other dispute management processes ■■ The merits of the dispute The mediation process generally comprises five ■■ Information on how other (unidentified) stages as shown in table 1.2. disputants in similar cases have dealt with similar issues CONCILIATION ■■ Recommended out-of-court resolutions to the Conciliation is similar to mediation in that it involves dispute facilitation of negotiations, but the conciliator has ■■ The likely outcome of a dispute if the matter additional expertise and authority. goes to court What is conciliation? Conciliators may prevent you and the other side from entering into an agreement that seems In conciliation, negotiations are assisted by a grossly unfair and goes beyond what is considered conciliator. The conciliator has technical or legal acceptable by the law. Conciliation can be similar expertise and is empowered (usually by law) to to mediation, although the conciliator’s role may be offer technical and legal information and advice more directive and advisory. and even suggestions for an outcome. Advice can Table 1.2: Mediation process in five stages. What should I expect during mediation? Stages What should l expect? 1. Preparation The mediator will contact the lawyers or you and the other side directly to gather some information about the dispute and the people involved in it. The mediator will explain the process and his or her approach and style as well as give an outline of the day and respond to any concerns. 2. Opening statement The mediator will begin with an opening statement to introduce the process and the roles of each person. The mediator will confirm your (and the other side’s) commitment to attempting to mediate. The mediator will also confirm that everyone is willing to engage in the process in “good faith” and to follow a few guiding principles or rules. 3. Facts and interests You and the other side will then be invited by the mediator to share your concerns. You will both be given an opportunity to hear and understand each other’s perspective of the facts as well as interests, needs, values, priorities, and emotions. 4. Options and negotiation You and the other side (possibly with their advisers) will be invited to develop options/solutions/ideas that could be acceptable to resolve the dispute so that both sides are satisfied. The mediator will encourage creativity to overcome difficult situations and may help you in finding solutions that work for both sides. 5. Agreement and If you and the other side reach an agreement in the mediation, the terms of the closing agreement will usually be put in writing and be signed by everyone present. 12 HOW TO MANAGE AND CONTROL DISPUTES: ALTERNATIVE DISPUTE RESOLUTION When is conciliation suitable? legislation or have relevant technical expertise. This expertise enables the conciliator to clarify Conciliation is generally suitable for your dispute any legal or technical issues related to the dispute. when you need assistance or guidance with the Conciliators will also focus on nonlegal issues that substance of the dispute. Conciliation may be useful are important to you and will help you articulate in any of the following situations: your interests. They differ from mediators in that ■■ There is a big power disparity between you and they are able to provide you with legal information the other side. and recommendations for a solution. A conciliator ■■ A disputant is not able to articulate what is usually helps in the following ways: important (that is, his or her interests) in resolving ■■ Conducts a process that has many similarities the dispute. with mediation ■■ Disputants need assistance or guidance with the ■■ Listens to your interests (and those of the other substance of the dispute and do not have separate side) expert advisers. ■■ Encourages you and the other side to talk to ■■ One side or the other does not want to negotiate each other or has unrealistic expectations. ■■ Exercises his or her specialist role under the ■■ The dispute could benefit from a professional authority of a specific law clarification or evaluation. ■■ Conciliates only in one specialist area (for example, workplace and labor disputes or Table 1.3 lists factors that can help you determine discrimination claims) whether your dispute is suitable for conciliation. ■■ Has specialist knowledge and can give you Remember to consider all factors in the context professional or legal information related to the of your dispute rather than relying on factors specialist area of conciliation individually to determine the suitability of ■■ Actively encourages you and the other conciliation. participants to reach an agreement ■■ Sets guidelines or ground rules for how the One last point: As you go through the factors in this conciliation process will work table, you may notice that some factors are similar ■■ Sets parameters, if needed, for the type of to the mediation table; however, other factors are agreement you and the other side are permitted different. This reflects the fact that mediation and to conclude (For example, in a discrimination conciliation share some characteristics, although dispute, the conciliator may not be able to permit they are distinct processes. It is essential therefore to an agreement if respondents do not acknowledge consider carefully the factors indicating suitability the impact of their discriminatory behavior in (or not) of conciliation. Where factors indicate that some way. Such a requirement may be part of the dispute may not be suitable for conciliation, the educational aim of the relevant law and the mediation or other ADR processes may be suitable. conciliation program.) ■■ Manages interactions so that they are fair What does a conciliator do and not do? NEUTRAL EVALUATION11 Conciliators are more involved in the substance of the dispute than mediators are. The latter are Neutral evaluation is not a negotiation process. more focused on helping you and the other side Rather, it involves an independent third-party articulate your interests and negotiate your own expert who provides an opinion on the best way to solution. Conciliators are likely to be experts in the resolve the dispute. topic of the dispute and are familiar with relevant MEDIATION SERIES: MEDIATION ESSENTIALS | CHAPTER ONE 13 Table 1.3: Determining suitability of conciliation to deal with your dispute Factors indicating conciliation is suitable Factors indicating conciliation is NOT suitable for a disputea for a dispute Disputants are willing to negotiate, but one or more Disputants are willing and able to negotiate within disputants are not able to articulate what is important a mediation setting or elsewhere (with or without for them (that is, their interests) in resolving the professional advisers). In this case, go to mediation. dispute. The dispute can benefit from an independent, Disputants have not tried mediation and are willing professional clarification and from preliminary advice and able to do so (with or without professional in relation to the disputed issues. advisers). In this case, go to mediation. A disputant has health problems preventing direct Disputants have professional advisers who are and full participation in mediation; however, the prepared to support their clients and assist in disputant could participate in a similar process with mediation. In this case, go to mediation. greater checks and support. Disputants need assistance or guidance with the An urgent interim decision is required to preserve substance of the dispute and do not have separate the status quo, such as an injunction to prevent expert advisers. demolition of property. Disputants have already tried to negotiate and/or A repeat player disputant wants to obtain a ruling or mediate the dispute unsuccessfully. precedent to use as a guideline for similar disputes. Everyone wants a tailored solution to suit the specific Impending expiration of limitation period for legal circumstances of the conflict rather than an arbitral action.b decision, which would not address the real issues in the dispute. Disputants seek an interest-based solution on an A disputant wants to use conciliation just to prepare informed legal basis but do not want the delay and for arbitration or court and is not interested in expense associated with arbitration. settlement. At least one disputant has unrealistic expectations. A disputant wants to emotionally hurt the other side. There is a need to focus on relational issues as well as Neither side is willing to negotiate at all (although other substantive issues. sometimes this position can change during conciliation). There is excessive power disparity between the A disputant will not participate in good faith. disputants. The cost of other dispute resolution processes such as Complete lack of trust or willingness to comply with arbitration and litigation outweighs the value of the any future agreement. dispute. Everyone is fatigued by the dispute and wants it to A disputant is only interested in protracting the dispute. end. a. If a factor applies only to one disputant and not the other, it could still mean that your dispute is suitable for mediation. However, you should explore why it does not apply to everyone and if this would be a problem during mediation. b. However, conciliation may work after initiation of legal proceedings. 14 HOW TO MANAGE AND CONTROL DISPUTES: ALTERNATIVE DISPUTE RESOLUTION What is neutral evaluation? the dispute from their point of view. The evaluator then gives all the participants written advice based NADRAC explains that neutral evaluation “is a on the documentation. process that may happen before a court or tribunal process is started. Sometimes your professional What does an evaluator do? adviser, such as a lawyer or accountant, will suggest that you may benefit from using neutral evaluation. The evaluator’s role is similar to that of a conciliator, Courts and tribunals sometimes refer people to but the process is more formal and legalistic. neutral evaluation.12 The evaluator will conduct a relatively informal process consisting of “summary submissions” by Neutral evaluation involves the following: you and the other side, or your lawyers, and will ■■ The participants present their points of view and offer nonbinding recommendations that you and the facts to an independent person (an evaluator). other side are free to follow or not. An evaluator ■■ The evaluator will form an opinion about the key may do any or all of the following: issues in the dispute and the most effective way ■■ Listens to all sides of the dispute and identifies to resolve the dispute. any missing information ■■ The evaluator is often legally trained and may ■■ Gives you and the other people involved in your have expertise in a particular area. dispute an idea of what he or she thinks a court or tribunal might decide Neutral evaluation processes can be confidential ■■ Gives you an idea of what an expert in the and work best if participants try to limit the number relevant field would recommend as a solution to of documents they bring. the dispute ■■ Gives you an opportunity to discuss a settlement When is neutral evaluation suitable? agreement between you and the other participants ■■ Makes suggestions about what further ADR Neutral evaluation may be suitable when the process you and the other participants could use following are true: ■■ You and the other side seek a technical or legal An evaluator does not make a ruling on the dispute. recommendation. Participants choose for themselves whether to ■■ Factual questions are at the core of your dispute. accept any assessment or advice that an evaluator ■■ You feel the need for a risk-analysis assessment provides and how to use that information. given by a credible and impartial, mutually chosen expert who knows about the subject OMBUDSMAN of your dispute (for example, a person who An ombudsman is used in cases that involve an understands the way your business or industry agency, usually a public entity or public officials. operates and who knows the relevant laws). In addition ombudsmen can also be found across certain industries such as finance and energy. Even if you think that legal action is the best option to resolve your dispute, neutral evaluation can still be valuable. It can assist you and the other What is an ombudsman?13 participants in reducing the number of issues that a An ombudsman is usually someone appointed court or tribunal has to consider. by the government to investigate and attempt to resolve complaints by the public about government A neutral evaluation process does not require that officials. The complaints can relate to infringement the parties meet with the evaluator. Participants may of rights or administrative issues and can lead to instead give the evaluator documents that explain the ombudsman making recommendations for MEDIATION SERIES: MEDIATION ESSENTIALS | CHAPTER ONE 15 systemic change. Although state ombudsmen deal What does an ombudsman do? with a range of complaints, there are also specific ombudsmen in some industries (for example, Ombudsmen can consider your dispute or complaint energy and water ombudsmen or financial services and decide what action should be taken. Ombudsman ombudsmen). The term ombudsman commonly offices may provide a variety of services to assist in describes both the person who holds the position of resolving disputes or complaints: ombudsman and the office the person operates. The ■■ ADR processes, such as assisted negotiation, term comes from the Swedish ombud, which means mediation, and conciliation agent, delegate, or commissioner. ■■ Investigations, either conducted by the office on its own or as part of a larger investigation An ombudsman office is an independent ■■ Opinions (for example, whether or not the office organization that does the following: agrees with a decision) ■■ Deals with disputes or complaints, including ■■ Recommendations (for example, suggesting that consumer complaints a decision be changed) ■■ Often works with government or industry to improve service delivery and administration Some industry-based ombudsmen also make decisions that bind service providers, such as utility Almost all ombudsmen will encourage you to try to companies. resolve your dispute or complaint with the agency or company before asking them for assistance. Ombudsmen will try to reach an outcome that is fair Generally, when you ask an ombudsman office for to everyone involved in the dispute. An ombudsman assistance you can expect the following: takes into account the following: ■■ The office staff members provide assistance free ■■ The content of the law of charge. ■■ Any codes of practice that apply ■■ The office does not require you to be represented, ■■ Good administrative or industry practice that for example, by a lawyer. applies ■■ The ombudsman will try to help you resolve ■■ A fair and reasonable resolution considering the your dispute or complaint quickly and informally circumstances of the dispute or complaint using a variety of interventions and processes. ARBITRATION Different types of ombudsmen include the The most important aspect of arbitration from a following: user’s perspective is that the decision is binding. ■■ Parliamentary ombudsmen can assist with disputes or complaints about government What is arbitration? agencies. Arbitration is a process in which the following ■■ Industry-based ombudsmen can assist you with occurs: disputes or complaints about service providers, such as banks, insurance companies, and utility ■■ You and the other participants, often through companies. lawyers or other experts, present your arguments ■■ Statutory ombudsmen and commissioners can and evidence to an independent person (the assist you with disputes or complaints about arbitrator). professionals or how the law applies. ■■ The arbitrator makes a decision on the basis of this information. ■■ You and the other side agree in advance to be bound by the decision. 16 HOW TO MANAGE AND CONTROL DISPUTES: ALTERNATIVE DISPUTE RESOLUTION Arbitration is a determinative ADR process. This ■■ You want an expert to make a decision that binds means that the arbitrator will make a decision that you and the other side. is binding on you and the other side. It is generally a more formal and structured process than mediation Arbitration is different from a court process in these or conciliation. It can appear similar to a court ways: or tribunal hearing because it follows structured ■■ It may be less formal. rules, it requires legal arguments in addition to ■■ It may be quicker and less expensive, depending commercial arguments and the presentation of on the extent to which legal professionals are evidence, and lawyers may be present. However, engaged. unlike in the public court and tribunal system, you ■■ It may be more convenient. and the other side may select your arbitrator(s), ■■ The hearing and outcomes are private. the venue, the law to be applied, and various other matters. Also arbitration is private. Table 1.4 lists factors that can help disputants and their advisers determine whether their particular In many jurisdictions around the world, specialized dispute is suitable for arbitration. Where factors arbitration tribunals arbitrate disputes in specific indicate that the dispute may not be suitable industries. For example, if you have a commercial or for arbitration, other ADR processes (such as workplace dispute, you may find that an arbitration mediation, conciliation, or neutral evaluation) may tribunal can help you resolve that kind of dispute. be suitable. Here are some other features of arbitration: What does an arbitrator do? ■■ You and the other participants or your legal Arbitrators may have a legal background or other representatives will present technical and legal qualifications in the subject of your dispute. arguments and produce evidence (facts). ■■ There may be one arbitrator or a panel of Arbitrators do the following: arbitrators (usually three) to hear your dispute. ■■ Confirm the procedure and time frames with ■■ Arbitration will focus on technical aspects of the everyone involved. dispute and therefore may require arbitrators to ■■ Listen to the arguments, cross-examine witnesses, be specialists in the subject matter of the dispute. and consider the evidence. ■■ Decide the outcome of the dispute (called Usually people involved in a dispute over a “issuing an award”). contract will use arbitration because they agreed in the contract to use it if such a dispute arose. Once a decision has been made and an award Alternatively, you and the other side may choose to issued, it is final. There are limited circumstances go to arbitration after a dispute has arisen. in which a court may hold the award to be invalid or refuse to enforce it. When is arbitration suitable? Arbitration may be suitable for you if the following COURT is true: Going to court is often seen as a last resort in dispute ■■ You and the other participants want a process in resolution. Court is a public form, presided over by which a final and binding decision is made by the a judge whose decision is binding. conflict resolution intervener (arbitrator). ■■ The dispute is primarily based on clarification and interpretation of facts. MEDIATION SERIES: MEDIATION ESSENTIALS | CHAPTER ONE 17 Table 1.4: Determining suitability of arbitration to deal with your dispute Factors indicating arbitration is suitable Factors indicating arbitration is NOT suitable for a disputea for a dispute Facilitative and advisory ADR processes (such as The dispute is suitable for facilitative or advisory mediation, conciliation, or neutral evaluation) are processes. unsuitable or exhausted. A repeat player disputant wants to obtain a ruling or Disputants want to have a say in the conduct of the precedent to use as a guideline for similar disputes. process and the content of the outcome. There is a complete lack of trust or willingness to Disputants want a tailored solution to suit their comply with any future agreement. particular circumstances rather than an arbitral decision, which would not resolve the nonlegal issues in dispute. There is excessive power disparity. Disputants require an urgent decision to preserve the status quo, such as to prevent demolition of property. Ability to easily enforce the outcome is desirable. There is a need to focus on a future relationship. A party is only interested in protracting the dispute Disputants share some common interests and through nondeterminative processes. concerns. Severe health problems prevent participation in Disputants want to resolve the dispute quickly. mediation or conciliation. A party seeks cross-border recognition and Disputants want a solution with which everyone is implementation of the outcome, such as through likely to voluntarily comply. the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958. Disputants desire the finality of a binding decision. Disputants want to minimize costs. Disputants desire privacy but confidentiality is not Disputants want to resolve the dispute on a strictly strictly necessary. (Note: Arbitration may not be confidential basis. confidential in some jurisdictions.) The dispute is primarily based on clarification and Disputants are willing to negotiate. interpretation of facts. a. If a factor applies only to one disputant and not the other, it could still mean that the dispute is suitable for arbitration. However, you should explore why it does not apply to everyone and if this would be a problem during arbitration. Note: ADR = alternative dispute resolution. What is the court process (litigation)? ■■ The judge makes a decision on the basis of submissions made. Generally in court processes, the following occurs: ■■ You and the other participants present your You will be required by law to comply with the points of view and facts to an independent judge, decision, except if you successfully appeal it. In usually through a lawyer. some jurisdictions, you may be required to take part ■■ The judge guides the process according to court in an ADR process such as mediation before you go rules and procedures, as well as relevant laws to a court or as part of the court process. (for example, evidence law requirements). 18 HOW TO MANAGE AND CONTROL DISPUTES: ALTERNATIVE DISPUTE RESOLUTION In jurisdictions where mediation is well established, SELECTING AN APPROPRIATE most people who have a dispute resolve it without ALTERNATIVE DISPUTE going to court. Most of those parties who do start RESOLUTION PROCESS a court process settle their dispute by agreement before any final court hearing, sometimes on the Table 1.5 summarizes the roles of the ADR steps of the courthouse! professional in the various dispute resolution processes introduced previously in this chapter and You can use all sorts of ADR processes to try to the relevant factors to take into account when you reach an agreement before a hearing takes place, consider using them. including the following: ■■ Negotiation ■■ Mediation DESIGNING CONFLICT ■■ Conciliation MANAGEMENT ■■ Neutral evaluation ■■ A combination of ADR processes SYSTEMS When is it suitable to go to court? INTRODUCTION So far we have discussed ways to address a dispute Sometimes using a court or tribunal to make a once it has already developed. However, there may decision on your dispute is necessary. The reasons be times in your life when you will encounter a could include the following: system that is already in place to manage future ■■ Urgent action is required. conflict and disputes that may occur with a business ■■ Serious safety risks are involved. contract or even in your workplace. Many of these ■■ No agreement can be reached through ADR. systems are multitiered, consisting of several ■■ Your dispute can only be resolved by determining progressive steps to address a dispute. These legal issues. systems are referred to as conflict management ■■ You want to establish a precedent for use in other systems or dispute resolution systems.15 related cases. Conflict management systems generally involve In a court hearing, a judge or magistrate will make a combination of different types of ADR. They a decision on your dispute according to the law. consist of several steps that progress from simple, Using a court to determine your dispute involves less formal, and less expensive ways of addressing a more formal process. The nature of your dispute disputes to more complex, more formal, and more will determine which court hears your issue.14 expensive procedures. How do you appeal a court decision? For example, a conflict management system may If you believe that a judge made the wrong decision first require you and the other side to negotiate on a legal issue, you can lodge an appeal of the directly with each other, thereby assuming decision with a higher court. Once your appeal responsibility for managing your own dispute. Thus has been decided at the highest court, you have no the first step may start with a simple requirement further appeal options. Appeals are usually costly for one side to notify the other of a problem and and time-consuming processes. to ask for a response. The next step could be a meeting between you and the other side to discuss the problem and to try negotiation. If you are not able to reach agreement, then there will be a MEDIATION SERIES: MEDIATION ESSENTIALS | CHAPTER ONE 19 Table 1.5: Which alternative dispute resolution process is appropriate for your dispute? When is this ADR process appropriate ADR process Role of the ADR professional for you? Mediation n To facilitate discussions and n Your relationship with the other side is a negotiations between you and priority. the other side without advising n You need support from an impartial, problem- on the dispute or making a solving person to help you talk to and decision negotiate with the other side. Conciliation n To facilitate discussions and n There is a big power imbalance between you negotiations between you and and the other side. the other side n Professional advisers are not involved. n To offer technical or legal n Either you or another disputant does not want information and advice and even to negotiate or has unrealistic expectations. suggestions or parameters for an n The dispute can benefit from a professional outcome clarification or evaluation. Neutral n To hear “summary submissions” n You and the other disputants seek a technical evaluation by you and the other side, or your or legal recommendation. lawyers n Factual questions are at the core of your n To offer nonbinding recommen- dispute. dations that you and the other n You and the other disputants desire a risk side are free to follow or not analysis assessment by an impartial expert. Ombudsman n To offer services appropriate n You need flexibility in terms of choices of to the particular office, usually dispute resolution processes to adapt to the a combination of various changing context. approaches to dispute resolution n You have limited financial resources. represented in this table Arbitration n To make a decision that is final n There are legal or technical questions you and binding upon you and the want addressed. other side n You want an expert to make a binding decision for you. n You may want to enforce the decision in a foreign jurisdiction. Note: ADR = alternative dispute resolution. gradual increase of intervention by an independent as arbitration, in which an independent conflict conflict resolution professional. Mediation is often resolution professional (an arbitrator) will hear the a next step, with a mediator offering you and your dispute and make a decision that is binding on you counterpart in conflict a structured process to help and the other side. you sort out your differences. In case the parties don’t reach agreement, an advisory process may Figure 1.1 shows an example of a conflict follow. This process may involve an evaluation management system from the National Electricity of the issues with a recommendation for you Market of Singapore. You will see that the system and the other side to consider. Finally, if you are first requires direct negotiation by those in dispute; still not able to resolve the dispute, there may be in case of no agreement, this step is followed provision for a determinative ADR process such by mediation and then possibly arbitration. 20 HOW TO MANAGE AND CONTROL DISPUTES: ALTERNATIVE DISPUTE RESOLUTION Figure 1.1: Conflict management system for the National Electricity Market of Singapore Serve a notice Serve a notice File a notice of dispute of mediation of arbitration NEGOTIATION MEDIATION ARBITRATION Players: Players: Players: Disputants Disputants Disputants DRC Negative: DRC DRC Negative: Refer to DRC for Mediator Refer to Arbitration tribunal mediation arbitration Time limit for Time limit for Time limit for dispute resolution: dispute resolution: dispute resolution: 40 business days, or 20 business days As soon as longer if agreed after appointment of reasonably mediator, or longer practicable if agreed Positive: Positive: Positive: Dispute resolved Dispute resolved, such as Settlement or settlement agreement arbitration tribunal determination Source: National Electricity Market of Singapore. 2006. “Guide to Resolving a Dispute.” Energy Market Company, Singapore. https://www.emcsg.com/f168,40852/emc_disputeresolutionbooklet_for_web.pdf. Note: DRC = Dispute Resolution Counselor. CONFLICT MANAGEMENT IN them. If a dispute does arise, the first step might THE WORKPLACE be to involve the human resources department. If this is not enough, perhaps a conflict management Many organizations have conflict management coach can meet with the aggrieved employees to systems in place to deal with workplace conflict. The help build their capacity and confidence to resolve systems aim to encourage employees and employers problems. If the dispute still persists then mediation to use dispute resolution as early as possible and as may be appropriate. easily as possible by, for example, upgrading the skills of human resource professionals in conflict If a workplace dispute is not resolved through coaching and other conflict management skills mediation, then a formal complaint may be and making conflict management consultations necessary; this complaint could result in an available on a confidential basis for those who have investigation through the organization’s formal a complaint or find themselves in a dispute. dispute resolution processes. The result of the investigation might be a determination by the In a workplace, it is best for productivity and cost- executive level and decisions imposed on those effectiveness to prevent disputes from occurring or involved or even on other staff. to address them as soon as they arise. For example, effective team-building policies can create a positive A conflict management system should flow environment where employees feel comfortable to smoothly through escalating steps and should give address constructively any issues that are bothering you and others involved maximum opportunities to MEDIATION SERIES: MEDIATION ESSENTIALS | CHAPTER ONE 21 resolve the dispute at each step and to go back to ■■ Move from low intervention to higher earlier processes if and when desired. intervention processes. ■■ Move from interest-based processes in which the CONFLICT MANAGEMENT IN disputants are directly involved toward advisory PROJECTS or adjudicative processes, and not the other way around. Dispute management systems are also relevant ■■ Move from confidential and private to more in relation to the design of dispute resolution public processes. procedures for major projects such as joint venture ■■ Move from nonrecorded and nondocumented projects, construction, and oil and gas projects. You processes toward recorded and documented may be the manager of an internal project within processes. your organization or working on a project with ■■ Build loops into the system so that disputants another organization or a collaboration of several can choose to revisit an earlier procedure, for organizations. example, so they can move back to mediation even though they are at the arbitration stage. Planning a conflict management system for a project ■■ Ensure the system or sequence is flexible to is similar to planning a dispute resolution clause in accommodate unexpected changes and to build a contract. See the section, “Mediation clauses,” in feedback. in chapter 5, which addresses drafting a mediation clause in a contract. The same factors can be applied to planning for dispute management in a project. You should consider the scope of disputes you may MEDIATION face, the use of multitiered dispute management, ESSENTIALS— time frames, identification of independent people DESKBOOK OVERVIEW to assist with dispute management, potential costs, descriptions of the processes, location, language, HOW TO MANAGE AND and relevant laws. CONTROL DISPUTES: ALTERNATIVE DISPUTE There is a wide range of possible projects; therefore, RESOLUTION no single best conflict management system suits them all. You will need to consider as many factors This chapter has introduced you to disputes and as possible and apply them appropriately to the different ways to manage them, including direct context of your project. This process will ensure negotiation, mediation, conciliation, ombudsman that the system you design will work effectively in services, neutral evaluation, arbitration, and going case a dispute arises. to court. It has also introduced the concept of conflict management systems, including multitiered CONFLICT MANAGEMENT processes for use in your workplace, projects, DESIGN PRINCIPLES and other situations in which you may encounter disputes. The following chapters will explore one Conflict management systems should be designed ADR process in detail, namely mediation. to be simple to use, accessible, efficient, cost- effective, and durable, and designed to provide HOW TO MAKE THE MOST OF satisfying outcomes. When designing a multitiered MEDIATION conflict management system, consider the following principles: Chapter 2 prepares you to get the most out of ■■ Move from informal to more formal processes. mediation. It explains what you can do before you ■■ Move from low cost to higher cost processes. go to mediation, what you can do during mediation, 22 HOW TO MANAGE AND CONTROL DISPUTES: ALTERNATIVE DISPUTE RESOLUTION and what you can do after you leave mediation. the event that future disputes arise. They provide The more you prepare, the more benefit you can a framework for managing future disputes. Next, get from mediation, as well as making it a more the chapter sets out what to do and what not to do pleasant and constructive experience. when drafting agreements to mediate. Agreements to mediate are contracts signed by people who HOW PROFESSIONAL ADVISERS are about to participate in mediation. Finally, the CAN ADD VALUE TO MEDIATION chapter outlines what to do and what not to do when drafting a mediated settlement agreement. Mediated Chapter 3 is written for professional advisers who settlement agreements are drafted when people want to assist a client going through mediation. It have resolved their dispute through mediation and outlines the main principles of mediation from an want to finalize and commit to the agreement terms adviser’s perspective. It explains what it takes to in writing. be a mediation adviser and the general knowledge an adviser should have. The chapter then discusses how an adviser can assist a client before, during, and after mediation. It contains useful checklists NOTES for lawyers and other professional advisers in mediation. 1. Parts of this chapter are adapted from National Alternative Dispute Resolution Advisory Council (NADRAC), “Your Guide to Dispute HOW TO USE GUIDING Resolution,” Australian Attorney-General’s PRINCIPLES AND ETHICS TO Department, Sydney, 2012, http://www.ag.gov. ENSURE THE INTEGRITY OF au/LegalSystem/AlternateDisputeResolution/ MEDIATION Pages/default.aspx. Chapter 4 explores the fundamental guiding 2. Ibid. principles at the core of mediation ethics and 3. This subsection is adapted from Ibid. illustrates them with practical situations. Its goal 4. Ibid. is to show you that mediation, when conducted 5. Ibid., 16. properly, is as robust and procedurally fair a process 6. NADRAC, “Your Guide to Dispute as the court process. The chapter outlines guiding Resolution.” principles such as participant autonomy, good faith 7. Ibid. and transparency, confidentiality, and fairness and 8. This subsection is based on Ibid. diligence. It also discusses ethics of a mediator that 9. Ibid. include the mediator’s integrity, competence, and 10. Ibid. impartiality and the mediator’s contribution to the 11. This section is based on Ibid. advancement of mediation practice. 12. Ibid., 19. 13. This section is based on NADRAC, “Your HOW TO DRAFT CONTRACTUAL Guide to Dispute Resolution.” DOCUMENTS FOR MEDIATION 14. Adapted from Ibid. 15. For more information on Integrated Conflict Chapter 5 provides guidance on three types of Management Design, see Nadja Alexander and contractual documents used in mediation: mediation Fatma Ibrahim, Mediation Series: Integrated clauses, agreements to mediate, and mediated Conflict Management Design Workbook settlement agreements. First, the chapter explains (Washington, DC: World Bank Group, 2016) what to do and what not to do when drafting a (in Arabic only). mediation clause in a contract. Mediation clauses 16. See Ibid. are included in commercial and other contracts in MEDIATION SERIES: MEDIATION ESSENTIALS | CHAPTER ONE 23 CHAPTER TWO How to Make the Most of Mediation CHAPTER NUMBER CHAPTER TWO Chapter Chapter Title: How Title to Make the Most Chapter Title of Mediation INTRODUCTION This chapter will explain how you can make the most of mediation. Making the most of mediation requires an open mind, good listening skills, and a problem-solving attitude throughout the process. This chapter walks you through what you need to do before you go to mediation, at mediation, and after mediation. Preparation is key to a successful mediation. Knowing yourself and being able to identify your own priorities and to see the dispute from the other’s perspective are an effective starting point. Listening to the other and engaging in a problem-solving conversation are vital to help you move toward a mutually satisfactory solution. After mediation, follow-up procedures may be needed to secure implementation of the agreement and to prevent potential future disputes. Preparation is key to a successful mediation. Knowing yourself and BEFORE YOU GO TO MEDIATION being able to identify your own priorities and to see the dispute THINK ABOUT YOUR OWN POSITION from the other’s perspective AND NEEDS are an effective starting When we are in conflict, we typically have a position. We either want point. something to happen or don’t want something to happen. Mediation teaches us to explore positions and to discover underlying needs. Our needs are the reasons we want something. Identifying needs can help us discover a variety of options for achieving what is really important to us. Naturally, a good way to determine our needs is to ask, why do I want this? Table 2.1 contains some examples of positions you might have in a conflict and possible needs underlying them. MEDIATION SERIES: MEDIATION ESSENTIALS | CHAPTER TWO 25 Table 2.1: Your positions and needs in conflict Your possible underlying Description of conflict Your position needs (parts relating to needs are in italics) You and your sister are having an You want the whole orange. You need the pulp of the orange argument over an orange. to make juice. Your employer announces a new You refuse to follow the new policy. You wanted to be included in policy without consulting you, developing the new policy and causing a workplace conflict. feel a lack of respect from the employer. Your father dies and, in his will, You want the house for yourself. You were always jealous of your leaves the family house to you more successful older sister and instead of your older sister. Your feel empowered by receiving the older sister cared for your father house. in the last years of his life. She disputes the will in court. Your neighbor had a wall built You refuse to pay half of the costs You are upset because your adjacent to your property. of building the wall and want it neighbor did not discuss with you demolished. the building of the wall. You quit the company where you You want to operate your own Your ideas were not recognized were employed and open your business. at the company, and you felt that own business. The company sues you did not have any autonomy in you for infringing its intellectual your job, and that is why you quit. property rights. We have a range of needs, from basic ones, like of what the other side wants and why. That view health and financial security, to more complicated may make a positive outcome seem unlikely, if not ones, like self-esteem, respect, and a sense of impossible. Furthermore, we sometimes discover identity. Some needs are less obvious than others that our assumptions are wrong. but can be extremely important. For example, people often value a sense of justice or fairness To get the most from mediation, you can benefit over money; people may also value relationships from exploring the other side’s underlying needs. over material needs. Understanding your needs can Why do they want what they say they want? Try to help you have more clarity in discussions during be as open-minded as possible in this exercise. Do mediation and work on solutions more effectively. not make quick judgments, especially emotional ones. You can make a list of questions for the other THINK ABOUT THE POSITION side and will have an opportunity to ask these AND NEEDS OF THE OTHER SIDE questions during the mediation. This exercise can humanize your opponent and make it easier to Just as you have needs underlying your position, listen properly during mediation. so do the people with whom you have a conflict. Naturally, we know more about our own situation Table 2.2 continues from table 2.1, adding the and tend to make assumptions about the other side. positions and possible underlying needs of the other As a result, we may have a fairly simplistic view side. 26 HOW TO MAKE THE MOST OF MEDIATION Table 2.2: The other side’s positions and needs in conflict Your possible The other side’s underlying needs possible underlying Description of Your The other side’s (parts relating needs conflict position position to needs are (parts relating to underlined) needs are in italics) You and your sister You want the You need the pulp Your sister wants Your sister needs are having an whole orange. of the orange to the whole orange. the rind of the argument over an make juice. orange to make a orange. cake. Your employer You refuse to You wanted to Your employer Your employer is announces a new follow the new be included in wants you to really worried about policy without policy. developing the follow the new the organization’s consulting new policy and feel policy. financial situation you, causing a a lack of respect and introduced workplace conflict. from the employer. the new policy to improve efficiency as quickly as possible. Your father dies You want the You were always Your older sister Your older sister and, in his will, house for yourself. jealous of your wants the house feels that you leaves the family more successful for herself. did not take any house to you older sister and responsibility for instead of your feel empowered caring for your older sister. Your by receiving the father. She is older sister cared house. pregnant and will for your father in need a bigger house the last years of his for her new family. life. She disputes the will in court. Your neighbor You refuse to pay You are upset Your neighbour Your neighbour is had a wall built half of the costs because your wants you to pay scared of you and adjacent to your of building the neighbor did not for half the cost of your dogs, which property. wall and want it discuss with you building the wall. keep coming onto demolished. the building of the your neighbor’s wall. property. This is why he decided to build the fence and did not talk to you. You quit the You want to Your ideas were The company The company is company where operate your own not recognized at wants you to close concerned that you were business. the company, and your business you will take away employed and you felt that you and to pay its clients and open your own did not have any compensation. doesn’t want a business. The autonomy in your competitor using company sues job, and that is the intellectual you for infringing why you quit. property you its intellectual developed while property rights. you were working at the company. MEDIATION SERIES: MEDIATION ESSENTIALS | CHAPTER TWO 27 REFLECT ON THE CONFLICT alternative (for example, a good chance of winning OBJECTIVELY in court), then you may not be very interested in reaching an agreement with the other side during If you are too involved in the conflict, you can ask mediation. A careful analysis will show how much a more objective person to help you analyze the going to court will cost in time and money and other side’s position and underlying needs. If you might drive you to reconsider the attractiveness of cannot find an adviser, try to analyze the conflict the alternative. from the point of view of a more objective person. A more objective person might be someone who Mediation is a process that offers people innovative knows both you and the other side but is not aligned ways to handle difficult situations. As a party with either of you. How would that person analyze to mediation, you should try to let go of the idea the conflict? Alternatively, you could think of the that you have to reach a solution. This mindset, situation from the point of view of a judge. How do paradoxically, is likely to limit your ability to reach you think a judge would decide the dispute? an agreement. Focusing too much on a potential agreement can limit your discussions and lead you You can also think about what kind of information quickly to a deadlock. This is why it is so important is important in your conflict. In some conflicts you to think about what you might do—and about what may want to obtain some objective information or the other side could do—if the mediation does not an expert opinion. Examples could include the value end in an agreement. or cost of something or facts about an issue that is in dispute. Thinking about the conflict objectively CONSIDER USING SUPPORT and trying to obtain objective information can PERSON(S) AND PROFESSIONAL make your participation in mediation much more ADVISERS effective. If you are not confident or comfortable managing IDENTIFY ALTERNATIVES TO AN your conflict alone, you can look for support. AGREEMENT Support can come informally from friends and relatives or formally from professional advisers. Before mediation, good practice dictates that you Sometimes support people may even attend the identify the best and worst alternatives to a mediated mediation with you. settlement agreement, for both you and the other side. In other words, if you and the other side do Informally, you can talk to a friend, relative, or not resolve your conflict in the mediation, what colleague about your conflict. These individuals happens when you walk away? What alternatives may be able to give you advice, provide emotional are available to you? Knowing your alternatives to support or motivation, give you a different view of a mediated settlement agreement can help you have the issues in your conflict, and help you understand a more realistic and practical discussion and can any uncertainties. Ask them to be honest with you. motivate you to get the most out of the mediation. They should feel free to challenge any of your views or positions. Make sure that you are prepared Both sides will probably have several alternatives to accept constructive criticism and that you do not to reaching an agreement. Some of these are enter into a conflict with your supporting person. obvious (for example, going to court). Once a conflict has escalated, fewer viable alternatives You may choose to seek more formal support may appear to be available. How we perceive from an expert. This person might be a lawyer or available alternatives will influence how everyone a specialist in an area relevant to your conflict, behaves during mediation. You have to analyze such as an engineer or a financial expert. For more your alternatives carefully. If you have a very good information on how to work with professional 28 HOW TO MAKE THE MOST OF MEDIATION advisers, see chapter 3, “How Professional Advisers The level of decision-making authority required on Can Add Value to Mediation.” the day of the mediation must be clear beforehand. Will you and the other side have authority to sign an If you prefer, you may arrange for a support person or agreement? In some cases you may need to prepare professional adviser to assist you during mediation written decision-making authority and bring it to to advise you, help you negotiate, or speak on your the mediation. The mediator will advise you if this behalf. Make sure that you talk with the mediator document is needed. about anyone you wish to bring to mediation and who might attend from the other side. If you have any concerns about your own or anybody else’s safety, discuss this with the mediator as soon CONTACT THE MEDIATOR as possible. The mediator has several options for dealing with safety issues, such as placing people If you have not already met with the mediator before in different rooms, running the mediation by mediation, you can ask for a meeting. This meeting telephone or Internet, or deciding that mediation is will help you clarify issues, answer questions, and not appropriate. For example, a victim of domestic manage any concerns. Ask the mediator to describe violence may not want to be present in a room with the mediation process. Make sure you understand the offender during a divorce mediation. In general, how the mediator will conduct the mediation and safety could be an issue if someone has made threats who will pay the various associated costs. of violence or has a history of violent behavior. During the meeting you will find out what the Ask as many questions at this meeting as you like mediator expects from you in terms of preparation, and let the mediator know if you are uncomfortable your role in the mediation, and so on. You can also with any aspect of the mediation process. Mediation check whether you can bring a support person or is flexible, so it can be adapted to suit all participants. a professional adviser. And you should clarify the mediator’s role: Will the mediator manage the PREPARE MENTALLY AND communication between you and the other side and coach you both through a negotiation? Identify the PHYSICALLY topics you will discuss? Offer you information about Being in conflict can be stressful. How you react court processes? Give a personal opinion about to and manage the stress will have a big impact possible outcomes? Offer expert (for example, on how you manage the conflict. To get the most legal) opinions about the merits of your case and from mediation, you should go into it mentally and possible solutions? These points are important physically prepared. If that is not possible, you may to clarify up front because—despite the clear want to ask to postpone the mediation for the sake mediation principles set out in chapter 1—people of everyone involved. often have different expectations of the mediator, and mediators will have different approaches. Your mental preparation will depend on you personally. People have different ways of managing You can also confirm the logistics with the mediator. stress, and you should find something that works for What time does the mediation start, how long will you. Many people think a lot about their conflict, but it go, can you take breaks, where will the mediation you may be better off distracting yourself, thinking be, how do you get there, where can you park, and about something else, or clearing your mind. Being so on. If you have special needs, make sure you calm and clear will let you manage your conflict clarify these with the mediator and ensure that they much more effectively and efficiently. are satisfied on the day of the mediation. This last point may affect the mediator’s choice of venue, the The same rule applies to physical preparation: find arrangement of equipment, and so on. something that works for you. Some people manage MEDIATION SERIES: MEDIATION ESSENTIALS | CHAPTER TWO 29 stress with sports or vigorous exercise; others prefer 2.4. Alternatively, the mediator or your adviser may a relaxing walk. Getting a good night’s sleep before help you persuade the other side to participate in going to mediation is also important. mediation. Table 2.3 summarizes the main personal preparation What was your score? If you got 0–3 Yes answers, points that have been explained above. then you do not seem to have many shared interests with the other side. It may be challenging to PERSEVERE IF THE OTHER SIDE convince the other side to participate in mediation, IS RELUCTANT TO MEDIATE and it might not be appropriate for your dispute (see chapter 1, “How to Manage and Control Disputes: Sometimes the person on the other side of the Alternative Dispute Resolution”). If many of your dispute is reluctant to mediate. If you believe that answers were Uncertain, then you could contact the mediation is worth trying, how do you get the other other side to ask the same questions. This process side to agree to use it? How can you persuade the can help you and the other side decide together if other side to participate in this assisted negotiation mediation is appropriate for you. process? The answer is simple: propose it! Propose it in a way that focuses on shared reasons for If you got 4–7 Yes answers, then you have a good participating so that you avoid conveying a sense number of shared interests with the other side. of weakness.  You can do this by explaining why You can communicate to the other side those mediation would benefit the other side as well as points to which you answered Yes. You can raise you. To maximize your chances of persuading the the Uncertain points with the other side to confirm other side, you can prepare by “putting yourself whether mediation can help you both. into the other person’s shoes” as suggested in the Mediation Shared Interest Questionnaire in table Table 2.3: How to prepare for mediation Actions the mediator can take to advise and guide you and Questions to ask yourself the other side What do I want the other Ask about each side’s expectations of the other. Ask everyone to prepare side to hear from me? a summary of the dispute, including ideas about how to use the first joint (Positions and facts) meeting most effectively. Ask if you and the other side share a mutual understanding of the relevant facts. Ask if you and the other side want to share documents before the mediation. Why have I chosen to start Ask about both sides’ expectations of the process and the mediator. Ask mediation now? about each person’s previous experience with mediation (if any). Ask both (Needs and interests) sides to prepare cost information and do a risk analysis. (Your advisers may help you prepare this; see chapter 3). Ask both sides about the importance of a future relationship and reputation. Explore what has prevented both sides from resolving the dispute. What are likely acceptable Suggest that each side come to the mediation with at least three possible solutions for me and the solutions that are likely to be acceptable to the other side. Suggest that each other side? (Options) side bring, or even exchange, a draft agreement in a suitable format to be worked on during the day. What will I do if no agreement Suggest that both sides prepare a realistic alternative in case no agreement is reached? (Alternatives) is reached. Suggest that each side assesses the practical consequences (financial, psychological, and others) of not reaching an agreement. 30 HOW TO MAKE THE MOST OF MEDIATION Table 2.4: How to persuade the other side to use mediation Mediation Shared Interest Questionnaire When filling out this questionnaire, please consider the other side’s point of view as well as your own perspective. Please answer the questions by Yes, No, or Feeling uncertain. Yes No Feeling uncertain I see opportunities for a creative solution that works for both sides. Improving trust between us may be the beginning of new opportunities. Improving communication and clarifying misunderstandings can help solve the problem and prevent new conflicts. A quick solution would be good for me and the other side. We have a common network, and conflict has a negative impact on both of us. We have frequent dealings with each other, and conflict has a negative impact on both of us. We are concerned about saving money on legal fees. We want “peace of mind” and to “move on.” We believe a judge’s decision will not solve our problem efficiently. We are concerned about the psychological and emotional stress of a court process. Total Yes answers might be useful to persuade the other side to participate in mediation. No or Uncertain answers might be useful questions to explore with the other side to better know their interests and priorities and convince them that mediation could satisfy their needs. If you got 8–10 Yes answers, then you have many turns into a shouting match. The aim of mediation shared interests with the other side. By discussing is to establish effective communication between all the points to which you answered Yes, you will you and the other side. By listening properly and have a fairly good chance of convincing the other asking good questions, you can help your mediator side to participate in mediation. achieve this goal. DURING MEDIATION Have you ever experienced a conversation in which you were simply waiting for the other person to LISTEN AND ASK GOOD finish speaking so you could speak yourself? In those cases, the other person is speaking, but you QUESTIONS are not listening properly. You are thinking about In conflict, people have a tendency not to listen and, what to say next or waiting for a pause so that you conversely, have a strong desire to be heard. Until can say what you really want to say. Realizing we are able to say what we want, we will not be when you are doing this is important because then satisfied and will get more and more upset as our you can control yourself and actually listen to the patience runs out. However, the other side has the other person. same need, so communication during conflict often MEDIATION SERIES: MEDIATION ESSENTIALS | CHAPTER TWO 31 An old saying notes that because we have only one Sometimes in conflict, the other side says mouth but two ears, we should listen twice as much something that really upsets you or offends you. as we talk. Interrupting can cut off communication You may experience an urge to immediately before it has a chance to expand and become more disagree or defend yourself. Not interrupting at meaningful. If you have an urge to interrupt, try to this stage and continuing to listen properly can wait and let the other person finish. You can make be very challenging. However, your nonverbal a note about the important thing you want to say. communication can send a clear signal that you do The mediator is responsible for ensuring that all not like what was said, and waiting for the person parties have an opportunity to say everything that to finish speaking will allow you to respond more they want to say. If you listen patiently to the other rationally than emotionally. side, you will be given the opportunity to respond. KNOW YOUR EMOTIONS Certain ways of responding to the other side can Conflict often activates our emotions. When we feel make the mediation even more worthwhile. Instead offended or attacked, we can experience emotions of just waiting for the other person to finish speaking like anger, fear, and surprise. These emotions are and then saying what you want to say, you can ask accompanied by physical reactions like a surge some clarifying questions about what the person just of adrenalin, faster heart rate, sweaty palms, and said. Your questions may be about something that more energy. These are natural reactions that sounds important to you or something that needs increase our chances of survival in a dangerous more details. Asking good, clarifying questions will situation. However, in a heated conversation they help in these ways: can do more harm than good. Research shows that ■■ Shows the other person that you were listening as our emotions escalate in a conflict situation, we properly start to use shorter sentences and less complicated ■■ Generates better communication between you language. We begin to have more difficulty and the other side expressing what we want to say. Our ability to ■■ Makes the other side more likely to listen think properly decreases, and the chance of saying properly to you something we will regret increases. Thus, to get the most from mediation, you should be prepared to If you don’t ask constructive clarifying questions deal effectively with emotions, both your own and because, for example, you are too upset to focus, those of the other side. you may find that the mediator does so. Box 2.1 offers some examples of typical clarifying questions Becoming aware of emotions is the first important that you or the mediator might ask. step. If you are not aware of them, you cannot possibly manage them. In yourself, you can become Box 2.1: Clarifying questions ■■ It sounds as if you are really frustrated with the contractor. Can you explain more about that? ■■ It sounds as if quality workmanship is really a priority for you. Is that right? ■■ Could it be that you feel your contributions are not appreciated by the partnership? ■■ So you feel you have been unfairly treated in this situation? 32 HOW TO MAKE THE MOST OF MEDIATION aware of the physical signs of stress previously and acknowledged, an outcome that helps build mentioned. In others, you can become aware of trust and better communication. Acknowledging signals of heightened emotions: agitated movement, people’s emotion can help them manage it and crossed arms, emotional facial expressions, redness reduce their outbursts. People often get more and in the face, simpler speech and shorter sentences, more emotional when they feel they are not being phrases repeated with more emphasis, a louder heard. voice, swearing, and so on. When acknowledging, make sure you don’t state After becoming aware of emotions, you can try something as a fact, because you may be wrong. to manage them. Pause, take a deep breath in, and For example, instead of saying “You don’t want to breathe out slowly. Breathing more slowly and discuss it,” say, “It seems to me that you don’t want deeply than normal can help reduce the negative to discuss it.” This allows the other side to agree or physical effects of your emotions. Writing down to correct you without getting defensive. what is upsetting you can shift you into a more rational rather than emotional state. Naming Remember that acknowledging what someone emotions or describing how you’re feeling can help has said or is feeling does not mean you agree. you focus the discussion on the causes. For example, Saying “It seems that you think I’m an unreliable you can say, “What you’re saying is making me employee” does not mean you agree that you are very angry” or “There is no progress and I am an unreliable employee. However, it acknowledges getting frustrated.” If you notice your emotions are your employer’s concern and allows both of you to really hindering you, ask the mediator for a break. explore what may be causing it. Stand up and move around, get some fresh air. You can ask to speak to the mediator privately and talk PRACTICE A USEFUL freely about what is bothering you. COMMUNICATION SKILL: SUMMARIZING If the emotional expressions of the other side are bothering you, then you can mention this at an Conflict can be chaotic. Another mediation appropriate time in the mediation. You cannot really skill—summarizing—is useful when you are control someone else’s behavior and emotions, but feeling overwhelmed or confused. Sometimes in a you can control how you respond to them. Try to discussion, people jump from one topic to another, stay calm and respectful, and do not get trapped in start talking about a new issue without having the other side’s drama. finished talking about the first issue, or say a lot without really having a point. To bring some order PRACTICE A USEFUL to the discussion, you can summarize the main issues that are being discussed and the main points COMMUNICATION SKILL: mentioned so far. Ask to discuss each issue in detail, ACKNOWLEDGING one after the other, but be prepared to be flexible if Acknowledging is a basic communication skill a new, more important issue is raised. that mediators should be proficient in and one that you can use yourself. It involves simply noting Summarizing issues also presents an opportunity to what someone has said or noting an emotion that identify common ground. Common ground refers someone is experiencing. For example, “I can see to issues that concern both you and the other side; that this issue really bothers you.” This statement alternatively, it may refer to common needs that may seem trivial and unnecessary, but it can have a you both have. You can focus the discussion on powerful effect. When you acknowledge something such common ground and make the mediation more that is important to someone, that person feels heard constructive. MEDIATION SERIES: MEDIATION ESSENTIALS | CHAPTER TWO 33 FOCUS ON THE PROBLEM, However, in some situations, mediation may be NOT THE PEOPLE advised—for example, by a lawyer, arbitrator, or judge—or may be required—such as by legislation Conflicts can escalate and become personal, or a court referral system. In those cases, you or meaning one person attacks the personality of another participant may be reluctant to engage in another. Such attacks can be in the form of personal the mediation process appropriately. In countries insults, generalizations, and exaggerations like “You where mediation is compulsory, the law or court are worthless,” “He never listens,” “She only cares practice may require that the parties participate in about herself,” or “They never do anything right.” good faith. This requirement might be imposed by Naturally, when people feel attacked, especially legislation or included as a contractual term in an with exaggerations, they can react in various agreement to mediate. Good faith usually becomes defensive ways. Some will become emotional and an issue in situations in which the conflict is not argue against the attack, others will become angry resolved at mediation and the matter goes to a and silent, others will attack in return to shift the court for a decision by a judge. If it can be shown focus away from themselves. that someone did not put in a sincere effort during mediation (such as not attending the mediation Mediation helps you focus on the problem rather hearings), then negative consequences may result than on the person. Sometimes the problems relate for that person. For example, the court may impose to people themselves, but you can still identify cost penalties or adjust the amount of damages specific behaviors that are bothering you rather than awarded. attacking the person. Instead of saying, “You’re always late,” you can say, “I want us to discuss Regardless of whether or not you are explicitly punctuality.” obligated to put in a sincere good-faith effort during mediation, you would be wise to do so. Not only If the mediation becomes too personal, you can will you get more from the mediation, but, in the switch the focus to discussing specific problems. future, others may judge your attempts to resolve the However, be aware that some problems are conflict. “Others” may be a judge in court; however, superficial and are the result of a deeper conflict. they could also be an employer, a potential business People may argue over very unimportant things partner, a new friend, or a relative reflecting on your when they have problems with their relationship. attempts to deal with your dispute. Better to act in If during your mediation you feel that you are good faith than to develop a reputation for acting in not having a constructive discussion, then ask the bad faith so that people are reluctant to trust you or other side if they have concerns related to your deal with you in the future. relationship. You can focus the discussion on relationship issues like trust, communication, and MOVE FROM THE PAST TO THE respect. Getting to the deeper causes of the conflict FUTURE will save you a lot of time and energy arguing over superficial problems. People often get trapped in arguments about the past: What happened? Who did what? Who was right? ACT IN GOOD FAITH Who was wrong? If you feel that the mediation is trapped in the past, try to focus the discussion on Mediation is most effective if you participate in the future. You could say to the other side, “It seems the process genuinely and in good faith with a that we cannot agree about the past right now. What sincere effort to work toward an agreement. When would you like to see in the future?” mediation is voluntarily entered into, such an attitude generally follows. When talking about negative events from the past, people are likely to experience negative emotions 34 HOW TO MAKE THE MOST OF MEDIATION related to those events. As discussed in the section might seem like a good solution in a conflict, but it “Know your emotions,” this can make the discussion often means that nobody is really satisfied. more difficult or destructive. Sometimes people cannot let go of the past until they have satisfied The mediation process is designed to promote a some need; for example, they have received an discussion before thinking about solutions. This is apology or had a chance to vent. If you’ve tried called the exploration phase. It is very important to talk about the future and the other side keeps during the exploration phase to raise all issues, returning to the past, you may need to explore what uncover as much information as possible, and talk exactly they want from the discussion. through everything that is on your mind. If you focus on solutions that seem obvious, you may be When focusing on the future, focus specifically on making wrong assumptions and may prevent the a positive future. Discussing positive options, even underlying issues from coming to the surface. if they seem unlikely at first, can stimulate positive emotions and make it easier for you and the other A common mediation concept is a win–win side to explore those options. If you cannot even outcome. The aim of mediation is for both sides to imagine your future with less conflict, then you are find a mutually acceptable solution to their problem likely to continue reliving the conflict of your past. that addresses the needs of both. This is called a win–win outcome because both sides win. Thus, DON’T FOCUS ON SOLUTIONS both sides in the conflict are happy with the result TOO QUICKLY rather than just being resigned to a compromise. In the example, the brother’s getting the juice from the When shifting from the past to the future, be careful orange and the sister’s getting the rind is a win– about moving too quickly to solutions. People are win outcome—both get what they need. In contrast, often taught to be analytical, to find solutions to with a win–lose outcome, one side gets what it problems. So when we are in a conflict, we may wants and the other side does not. For example, think that there is an obvious solution. Consider the referring again to the orange illustration, in a following example introduced in chapter 1: win–lose outcome, the sister might get the whole orange (juice and rind) and the brother would get nothing. She then would go and peel the rind from Two siblings are having an argument over the orange to make a cake and throw the rest of the an orange. They each want the orange for orange away. themselves. Their mother interrupts their argument and wants to resolve the conflict. A win–win outcome may not always be possible, She thinks that the fairest solution would be but there is nothing to lose by trying. Searching for the children to split the orange into halves. for a win-win outcome may require asking good What do you think the mother could ask the questions, using creativity, and having a thorough children before deciding on the “obvious” discussion. To get the best outcome from mediation, solution? do not focus on solutions too quickly. MAKE SURE YOUR SOLUTIONS If the mother asks the children, “Why do you want ARE REALISTIC the orange?” she will discover that the brother wants the juice and the sister wants the rind for a cake. If One way a mediator can help during mediation is you thought that giving half the orange to the brother by being an objective critic of demands or proposed and half to the sister was the best outcome, then you solutions. A mediator does this in an impartial way focused on a solution too quickly. A compromise to be clear that the mediator is not supporting one MEDIATION SERIES: MEDIATION ESSENTIALS | CHAPTER TWO 35 side over the other in the conflict. To get the most You and the other side need to decide whether from mediation, you should also check whether you want a written mediated settlement agreement your own demands or solutions are realistic. or just a verbal one. If you (jointly) decide that the agreement is legally binding, make sure you A good way to test whether something is realistic have a lawyer draft it or at least look it over for is to explore the details. Our ideas may, at first, you before you sign it. If you have a professional seem fantastic but quickly appear flawed and not adviser with you during mediation, that person feasible. We may also be making assumptions that can confirm your obligations and rights under the are inaccurate. Be careful about vague statements, mediated settlement agreement. Make sure you and ask clarifying questions. If someone says, understand the consequences of breaching the “It will be finished as soon as possible,” ask about mediated settlement agreement. Alternatively, the an estimate of time and perhaps suggest a time agreement may be in the form of a memorandum of frame. You may be eager to make a promise to understanding with no legal implications. resolve the conflict, but you should think carefully whether you would be able to fulfill it. Be thorough If the mediation ends with no mediated settlement when working on a solution, and you will increase agreement, consider whether you want the the chance of a successful outcome—not just on the mediator to draft a summary of the issues and surface but also in the details. options discussed during mediation. This document can be confidential and may be useful for future BE THOROUGH AND CHECK negotiations. If some aspects of the mediation were ALL DETAILS OF A POTENTIAL resolved, a partial agreement on those issues may AGREEMENT be possible, noting that disagreement remains on other issues. If you and the other side seem to be making progress toward resolving your conflict, that is a good sign. Ensure that you take the time to carefully consider whether the following are true: AFTER YOU LEAVE ■■ The mediated settlement agreement you are MEDIATION making is feasible. (See the previous section.) ■■ The contents of this agreement meet your needs THINK ABOUT WHAT NEEDS TO to a satisfactory extent. (See “Before You Go to BE DONE AFTER MEDIATION Mediation” at the beginning of this chapter.) After the mediation, you may have some more work ■■ The agreement is better than your walk- to do. Consider the following suggestions: away alternatives. (See the section “Identify 1. If there is a mediated settlement agreement alternatives to an agreement.”) at the end of the mediation, then you will need to implement the terms of the agreement. You If things seem to be going well, beware of falling can arrange follow-up meetings with the other into the trap of false confidence and rushing to end side to see how certain parts of the agreement the mediation. You need to be certain that what you are working (or not working). This point and the other side have agreed to will work and will might be relevant when aspects of a business last. An agreement should provide enough detail partnership have been renegotiated and might that all parties understand their responsibilities, need adjustment a few months later. provide for relevant time frames, and provide for consequences if a party does not fulfill the terms of 2. If a mediated settlement agreement is the agreement. reached but not formally drafted, you might arrange to meet with a lawyer to draft the 36 HOW TO MAKE THE MOST OF MEDIATION mediated settlement agreement into a legally CONDUCT A REVIEW AND binding format, which needs to be signed by ASSESSMENT you and the other side. You may choose to have a feedback session with the other side Mediation can be challenging and exhausting. To and that side’s professional adviser (if any), get the most from mediation, you should do some to discuss how the mediation went and to work after it too. The work doesn’t have to begin confirm your obligations and rights under the immediately afterwards, but the longer you wait, mediated settlement agreement. Make sure you the less you will remember and the less likely you understand the consequences of breaching a will do it. mediated settlement agreement. When reflecting on the mediation process, ask 3. If you did not reach a mediated settlement yourself the following questions: agreement, don’t give up. You may need a new mediation. Often, mediation is the ■■ What worked well? Think of specific examples catalyst for further negotiations and subsequent of things you did or others did that helped the agreements. Consider making contact with the discussion move along. other side again. Try to use constructive skills ■■ What didn’t go well? Think of anything and communication techniques you experienced that seemed to have a negative effect on the during the mediation. Also, try to maintain discussions. any positive momentum or communication ■■ If I were to go to mediation again, what might I established during the first mediation. Don’t do differently? be surprised if the other side initiates contact; be open to a signal from the other side. If you You can discuss the answers with your support start new negotiations, you should preferably people or someone not involved in the mediation. work with a mediator. Without the mediator’s If you cannot find someone to review the mediation assistance, you may slip back into your old with you, simply write down the answers for contentious habits. yourself. The process of analyzing the mediation is important. Reviewing the mediation will help you 4. If mediation is not working, consider using prevent conflicts from developing in the future, and another dispute resolution process, such as when conflicts do develop, you will have better neutral evaluation, arbitration, or court. skills to manage them. MEDIATION SERIES: MEDIATION ESSENTIALS | CHAPTER TWO 37 CHAPTER THREE How Professional Advisers Can Add Value to Mediation CHAPTER CHAPTER THREE NUMBER How Professional Chapter Advisers Title: Chapter Title Chapter Can Add Value to Title Mediation INTRODUCTION Professional advisers wanting to act in the best interests of their clients need to know how to make the most out of mediation. Generally, professional advisers such as lawyers have skills that can be very useful for a client in mediation. However, in countries where mediation has yet to be established, professional advisers may have limited experience with mediation and may be reluctant to encourage clients to engage in mediation. They may be worried that mediation advising is less lucrative than court advocacy or that going to mediation may be a sign of weakness. Actually, experience shows that mediation is effective and makes good sense for clients. Moreover, there is no evidence to suggest that using mediation instead of litigation to help clients resolve disputes is likely to result in less Mediation advising revenue for professional advisers. Rather, mediation advising will involve a significant change in thinking for many professionals, including lawyers, will involve a and poses challenges for them in terms of defining their new role and significant change skills as mediation advisers. Mediation advising involves making the in thinking for many following shifts: professionals, including lawyers, ■■ From the adversarial to the collaborative and poses challenges for them ■■ From win–lose (satisfying the needs of only one side) to win–win in terms of defining their (satisfying the needs of both sides) new role and skills as ■■ From a focus on the past to a focus on the future mediation advisers. ■■ From a focus on lawyers in the trial process to a focus on disputants in the mediation process ■■ From the need to convince a judge to the need to reach a consensus with the other side Internationally, lawyers are increasingly required (for example, through ethical rules issued by bar associations) to inform their clients of the appropriateness of alternative dispute resolution (ADR), and specifically mediation, throughout court proceedings. On the MEDIATION SERIES: MEDIATION ESSENTIALS | CHAPTER THREE 39 suitability of various ADR processes, see chapter 1, “How to Manage and Control Disputes: Alternative MAIN PRINCIPLES OF Dispute Resolution.” MEDIATION This chapter describes the main principles of To provide the best assistance to your client as a mediation to give professional advisers a good professional adviser, you must understand the understanding of the process and how to contribute main principles on which mediation is based. This constructively. For more details, a training course knowledge will help you prepare for the type of in mediation advising will be helpful. process and attitudes generally expected during mediation. Remember that mediation differs Since mediation generally involves a facilitated significantly from litigation. These differences negotiation, professional advisers should negotiate become apparent when we consider the mediation within a mediation framework to the highest level principles of process informality, collaborative of skill and technique. This chapter will examine problem solving, nonlegal interests, and direct participation in mediation from the perspective of party participation, set out below. The principles a professional adviser, also known as a mediation of mediation are also addressed throughout the adviser. Mediation advisers come from various deskbook, and particularly in the following professional backgrounds. They may be lawyers, chapters: chapter 1, “How to Manage and Control engineers, accountants, or other professionals. Disputes: Alternative Dispute Resolution”; chapter Nonlawyers can assist and support parties to a 2, “How to Make the Most of Mediation”; and mediation; however, some of the duties of mediation chapter 4, “How to Use Guiding Principles and advisers, as  the context indicates, are primarily Ethics to Ensure the Integrity of Mediation.” relevant to legal professionals. INFORMAL PROCESS The extent to which professional advisers participate While court processes involve strict, formal in mediation varies considerably. In many cases, procedures governed by legal rules, mediation is they may not be involved at all. This may be the designed to be informal. People are asked to speak case in small business or community settings and freely and to provide any information that they feel conflict situations in which the parties have not will help resolve the dispute, without being restricted yet consulted a lawyer before going to mediation. by evidence laws. The process usually has some For example, in many workplace disputes, the structure: opening statements, a discussion phase, a employer or human resources department of the phase to generate options. However, this structure is employer organization may contact a mediation not fixed and is up to each individual mediator, with service provider directly without the involvement input from the mediation participants, to determine. of lawyers. When litigation is considered a possible course of action, lawyers and other professional The flexibility of the mediation process is also what advisers such as accountants or engineers, makes it informal. If participants make suggestions depending on the subject matter, are more likely to (for example, to take a break or to change to a less be involved in the mediation process. formal seating arrangement) and everyone agrees, then the process can be changed. However, the mediator is in charge of the process and ultimately makes the decision about how to run the mediation. 40 HOW PROFESSIONAL ADVISERS CAN ADD VALUE TO MEDIATION Advisers who are accustomed to more formal may award a sum of money (called legal damages) processes will need to be aware of this principle and to a person whose business partner has breached avoid introducing formality through their behavior. a commercial contract. However, a judge cannot Participants are expected to treat each other and the help the parties make a new contract to continue mediator with respect, and their efforts to find a a profitable business relationship. Disputes are not mutually acceptable solution to the dispute should always about legal interests, and mediation allows not be hindered by unnecessary formalities. for a much broader exploration of what is important to those in dispute. COLLABORATIVE PROBLEM SOLVING Here are some examples of disputes in which nonlegal interests, rather than legal ones, play an Many advisers will be used to the adversarial style important role: of traditional conflict resolution, in which they fight like a gladiator to win for their client and cause ■■ Example 1 (commercial). Your client quits her job the other side to lose. The other side is seen as an at a company and opens her own business. The opponent to be conquered and dominated. Often, to company sues her for infringing its intellectual win in such a setting requires clever manipulation, property rights. In court, the focus would be on strategy, and tactics. Mediation is very different the legal issues relating to intellectual property from all of this. and whether or not your client is allowed to operate her own business. However, your client Mediation is based on encouraging both sides in a quit her job because she was not being respected, dispute to collaborate and try to understand their her efforts were not being recognized, and she situation as much as possible. The two sides see did not have the autonomy that she wants in her each other as partners with a common aim to find work. Your client’s real interests are the need for solutions acceptable to them both. This approach respect, recognition, and autonomy—in other does not mean that the two sides are expected to words, nonlegal interests; and these are things become friends during mediation, but they do need a court cannot provide. Mediation would enable to—at least—show good faith in trying to resolve her to discuss these issues with her old company their dispute together. and perhaps result in her going back to work there or collaborating on future projects with the Professional advisers can ensure that their client’s company. interests are satisfied during the collaborative ■■ Example 2 (workplace). Your client’s employer problem-solving mediation. However, advisers introduces new work policies without consulting must ensure that they do not bring adversarial him. He refuses to follow the new policies habits and behaviors into the mediation because and gets fired. He sues his employer for unfair that would hinder the process and would not be in dismissal. A court would focus narrowly on their client’s best interests. his dismissal and not on the overall workplace relationship. The outcome would be your client’s either getting his job back (and not improving the NONLEGAL INTERESTS work relationship) or being compensated by his Traditional court-based disputes relate to legal employer but still being unemployed. Mediation rights and positions. Judges interpret and apply the would allow your client and his employer to law to make rulings about the dispute. The outcomes discuss their workplace relationship and issues of disputes decided in courts are framed by legal such as communication, cooperation, and procedures and limited to the types of outcomes that consultation. They might craft a new policy that a judge has power to deliver. For example, a judge suits both your client and the employer, and— MEDIATION SERIES: MEDIATION ESSENTIALS | CHAPTER THREE 41 having improved the workplace relationship— see the first two sections in chapter 2, “Think about the employer might agree to have your client’s your own position and needs” and “Think about the job reinstated. position and needs of the other side.” ■■ Example 3 (family). Your client’s father dies and leaves the family house to your client instead of DIRECT PARTICIPATION to his sister. Your client’s sister was the only one In litigation, professional advisers are hired who cared for their father during the last years by clients because they are experts and have of his life. The sister disputes the will in court. knowledge and skills that the clients do not have. The judge will only consider your client’s and The expectation is that the expert does certain his sister’s legal rights and not their relationship. research, investigation, or analysis and that the Mediation would enable them to discuss personal client then receives advice or the results of this interests, needs, and issues they have with each work. The adviser has an active role and the client other, such as moral responsibility and feelings usually has a passive role in such a relationship. of unfairness and jealousy. Your client would This balance applies especially to lawyers, who are be able to work out an outcome that recognizes expected to win the case for their client, while the both him and his sister in their father’s will and client is mostly a passive participant in the litigation that satisfies both of them. Furthermore, using following the lawyer’s instructions. mediation they will not waste their father’s estate paying for lawyers and court fees. Mediation promotes the opposite relationship: the client is actively involved in resolving the dispute, As you can see from these examples, many types while any professional adviser has a more passive of nonlegal interests and needs can lie at the core role, giving support when necessary. This principle of a dispute. While litigation in court deals only is one of the most important in mediation because with legal interests, mediation allows your client the success of the mediation and the success of to deal with the nonlegal issues as well and to find any resulting agreement depend primarily on how solutions that satisfy all the parties. Outcomes that much those involved in the dispute participate can be reached through mediation, and not court, in the process. If people feel that they did not and that satisfy nonlegal interests include these actively create the solution or were pressured into examples: an agreement, they are unlikely to comply with ■■ Apology it. However, if people feel that they participated ■■ Explanation of what went wrong directly, they have a strong sense of ownership of ■■ Agreement to compromise the outcome and, as a result, any agreement is more ■■ Agreement to keep the outcome secret durable. ■■ Agreement about how to interact in the future ■■ Agreement to provide goods or services instead In addition, research from around the world shows of money that direct participation by clients in mediation contributes to their level of satisfaction with the As a professional adviser, you need to be aware that way disputes are handled and with professional nonlegal interests reflect people’s needs and can be services. Logically and out of habit, you may just as important (if not more important) to people want to be active during mediation, speaking on in dispute as legal interests. People in dispute behalf of your client, for example, or asking the should be encouraged to discuss any interests that other side questions. However, clients who feel are important to them and should not be persuaded that they were not given a chance to participate to focus only on interests familiar to the adviser. themselves are likely to be dissatisfied with the For further discussion about exploring interests, process and less likely to seek your services in the 42 HOW PROFESSIONAL ADVISERS CAN ADD VALUE TO MEDIATION future. It is important to consult with your client INFORMATION TO PROVIDE as much as possible to determine together what TO YOUR CLIENT BEFORE level of participation your client wants and to then MEDIATION1 manage this level depending on how the mediation is proceeding. Your clients may be unaware of some of the principles and benefits of mediation. Providing this information may improve their attitudes toward it GENERAL KNOWLEDGE and may also help address any concerns or fears they might have about the process. Check through THAT MEDIATION the following list and ensure that your clients ADVISERS SHOULD are aware of all this important information about ATTAIN mediation. ■■ Mediation is an opportunity to see if the dispute Mediation advisers should strive to attain a can be resolved now. knowledge base that reflects international best ■■ Mediation differs from litigation: it is informal practice. Commercial and other clients are and involves no judge to please or to make increasingly sophisticated users of dispute resolution decisions for you. services. They select legal advisers who have ■■ The mediator will not decide anything, including practical problem-solving skills in addition to legal who is right or wrong. expertise. Table 3.1 lists the best practice standards ■■ The mediator is impartial. from the International Mediation Institute (IMI) and ■■ Participants must make their own decisions. the general knowledge to which mediation advisers They will not be compelled to agree to a proposed should aspire. It offers a useful starting point for outcome. professionals entering a mediation-advising role. ■■ Mediation is an opportunity to tell the whole IMI has established a certification program for story without interruption. experienced mediation advisers. ■■ Mediation provides an opportunity to see how the other side views the dispute. ■■ The mediator may help the other side better ASSISTANCE BEFORE understand the dispute. MEDIATION ■■ Meetings in the same room with the other side may be stressful. Any participant can request a break at any time. If the assistance of the As a professional adviser, you can help your clients mediator or lawyers is not reducing stress to a in many ways before mediation begins. Most manageable level, then the process may proceed important, you can help them prepare for mediation with the participants in separate rooms. and coach them on how to manage the dispute. ■■ Lawyers may or may not attend. Further, you can give advice about legal rights ■■ Mediation is confidential. or technical issues in the dispute. How you assist ■■ Your client can meet with the mediator privately will depend on your area of expertise. However, and confidentially. you can generally be helpful by having your own ■■ Your client can ask for information about the perspective on a dispute, listening well, and asking background and qualifications of the mediator. good questions. The following two sections discuss ■■ Your client will have an opportunity to discuss your assistance in more detail. the costs involved with mediation, including the mediator’s fee. ■■ Your client can get an estimate of the duration of the mediation. MEDIATION SERIES: MEDIATION ESSENTIALS | CHAPTER THREE 43 Table 3.1: General knowledge that mediation advisers should aim to attain Knowledge Description Alternative dispute resolution Ability to identify procedural options and preferred processes for reaching optimal (ADR) process knowledge outcomes Mediation landscape Understanding of the nature, procedure, appropriateness, and advantages and disadvantages of mediation schemes and programs, procedural rules, and relevant costs Suitability of the mediation Knowledge of the suitability (or not) of mediation as a process to address particular process issues Timing Understanding of the best timing, and ability to apply it to each dispute resolution process Mediation models Understanding of a variety of mediation practice models and the differences among them Role of mediator Understanding of the role of a mediator Key factors and principles in Awareness of the key factors and principles for making the most out of mediation mediation success How to prepare for mediation Knowledge of forms of written preparation for mediation, such as the Olé Case Analysis & Evaluation Tool available at imimediation.org/ole Negotiation and participant Knowledge of negotiation and processes that help find solutions, as well as dynamics knowledge of participant dynamics Mediation law Knowledge of relevant laws affecting mediation practice, including structure and enforceability of agreements to mediate, confidentiality and (non) admissibility of evidence of mediation communications, and structure and enforceability of mediated settlement agreements Interests Knowledge of interest-based negotiation and the distinction between positions, interests, and issues; also, knowledge of nonlegal interests Alternatives and solutions Familiarity with methods of finding solutions, including assessing available options and alternatives to a mediated settlement agreement and preparing the client and self for joint/private mediation meetings Familiarity with mediation Familiarity with techniques such as questioning, summarizing, active listening, techniques framing and reframing, reflecting, and paraphrasing Intercultural fluency Familiarity with intercultural issues and dynamics Cross-border mediation Understanding of cross-border mediation procedures, laws, and regulatory structures Multiperson mediation Knowledge of processes when dealing with multiple mediation participants Ethical standards Understanding of professional and ethical standards and behaviors and the use of ethics in generating, informing, and setting norms Mediated outcomes Ability to understand and interpret mediated settlement agreements and procedural options Mediation within its regulatory Ability to explain the operation of relevant court-connected mediation schemes, framework institutional procedural rules, relevant costs, and relevant professional codes of conduct or ethics Negotiation approaches and Knowledge of the distinctions between distributive (based on positions) and styles problem-solving (interest-based) approaches to negotiation; also, knowledge of when, why, and how to use each approach How to make use of mediation Knowledge of techniques to productively support people in a dispute, their processes representatives, the mediator, and the process, and of how to use the mediator and the process effectively to help find a mutually acceptable outcome 44 HOW PROFESSIONAL ADVISERS CAN ADD VALUE TO MEDIATION ■■ Mediation may save time and money. It is usually You can refer to the IMI tool, “Ole!: Concise more expedient than going to trial. Case Analysis & Evaluation Tool,” to assist you ■■ Your client can terminate the process at any time. with written preparation for your client.2 The tool ■■ Your client can take time to review and reflect includes sections dealing with the basic facts of the on any mediated settlement agreement, in dispute; case analysis; strategy analysis; financial consultation with you, before entering into a loss analysis; assessment of strengths, weaknesses, legally binding agreement. opportunities, and threats for each side; alternative ■■ Your client has little to lose because other process outcomes if the dispute is not resolved; options for options will still be available if the mediation moving forward; and future strategy. does not resolve the dispute. CONFLICT COACHING As an adviser, you can help your clients assess the A practice called conflict coaching helps individuals suitability of mediation to deal with a dispute. You who are experiencing conflict. The main difference need to determine whether your clients have any between conflict coaching and mediation is that a safety concerns. This point could be relevant if the conflict coach works one-on-one with a client only other side has a history of being violent or making and not with everyone who is in dispute. As an serious threats. You can also check if your client adviser, you can use conflict coaching skills to help prefers a process different from mediation. Some clients prepare for mediation by helping them do clients might want a judge’s decision to use later as the following: a guideline, or they might think that their dispute needs to be made public through a court case. ■■ To gain clarity about various aspects of the Mediation could be unsuitable for various reasons, dispute and the situation so this topic is important for you to discuss with ■■ To understand their own, and the other person’s, your client. Refer to the section “When is mediation needs and goals suitable?” in chapter 1. It lists the factors that make a ■■ To identify and evaluate their choices for moving dispute suitable for mediation as well as the factors forward that make a dispute unsuitable for mediation. ■■ To develop confidence and competence in managing conflict and achieving their goals WRITTEN PREPARATION Conflict coaching skills include the ability to listen Before going into mediation, your client should actively, acknowledge problems and emotions, thoroughly examine all the important details of the provide different perspectives or frames for your dispute. You can help create a written chronology of clients, summarize important issues from a large events that relate to the dispute. Lawyers can write amount of information, and ask exploratory and a case summary. You can also help your client write challenging questions. Some examples follow. down a summary of the main issues in the dispute. You can help your clients explore what needs are Another possibility for written preparation is to underlying their positions by listening for what is provide your client with written expert advice. important to them and asking questions about those This could be legal advice explaining in detail the points. legal aspects of the dispute and giving your client advice about various legal options. It could also You can encourage your clients to consider different be technical advice if the dispute involves some perspectives of the dispute, such as the perspective technical issues that require an expert to clarify. of an independent person or an influential person It could be financial advice relating to issues in who is familiar with the dispute (for example, the dispute or the potential costs of different ways of head of the company in a workplace dispute or the trying to resolve it. MEDIATION SERIES: MEDIATION ESSENTIALS | CHAPTER THREE 45 president of the Chamber of Commerce in a dispute ARGUMENTS TO ENCOURAGE between two corporate members) or the court, or the THE OTHER SIDE TO USE other side. By challenging your clients to broaden MEDIATION their perspective, you help them open their mind to creative and reasonable options for resolving the Sometimes the other side or its adviser may dispute. be reluctant to use mediation. If so, you may need to talk with them and encourage them to You can also do something called reality testing engage in the mediation process (see chapter 2, and doubt creation, objectively assessing a client’s table 2.4, which includes the Mediation Shared positions and options. By being on your client’s Interest Questionnaire). When suggesting side, yet far enough from the dispute to have a more mediation to the other side, you may encounter objective view of it, you can provide a more realistic misunderstandings. Therefore, you need to be aware perspective of problems, issues, and options. People of common misconceptions about mediation. These in dispute can be very confident of their position misconceptions are set out in table 3.2, along with but often have a narrow view affected by emotion. explanations that may support your conversations You can carefully challenge your client’s view and with people who are uncertain about participating help expand it. in mediation. Another part of your conflict coaching can focus on CONSIDERATIONS FOR CROSS- helping your client identify the most suitable way BORDER MEDIATION forward to deal with the dispute. For example, your Consider this example. Your client is a client may wish to try direct negotiation before multinational corporation doing business with entering mediation or another dispute resolution numerous organizations around the globe and process. is now embroiled in a dispute. You advise your client to try mediation. The international nature of Finally, as a professional adviser you can explain to the dispute or the disputants raises an important your client the standard steps of mediation, as well question: where and according to which law should as the main principles of mediation. You can use the mediation best be conducted? In other words, your conflict coaching skills to explore your client’s which jurisdictions have the most mediation- questions about the upcoming mediation and deal friendly law, infrastructure, and service provisions? with any concerns. You can help your client prepare an opening statement and a list of questions for the Typically, advisers select jurisdictions with which other side to answer during the mediation. You can they are familiar, whether for a contract mediation use the list provided in the section “Information to clause or an ad hoc mediation. For example, the provide to your client before mediation.” choice of jurisdiction might be the lawyer’s own jurisdiction or it might be another internationally If you wish, you can undertake further training in well-known jurisdiction that has been the standard conflict coaching. home for applicable law in dispute resolution clauses for decades. 46 HOW PROFESSIONAL ADVISERS CAN ADD VALUE TO MEDIATION Table 3.2: How to address misconceptions about mediation Misconceptions The reality of mediation about mediation Mediation is not If you choose to resolve your dispute in court, and the other side produces a defense, the case suitable when the can likely be resolved by a judge. However, the probability is high (often estimated at more than dispute’s outcome 90 percent) that you will reach an agreement before a judge hears your dispute. Internationally, depends on a reaching an agreement has become the norm, and trial by a judge is the exception in many point of law. countries. That is because most cases have nonlegal considerations, such as continuing relationships (commercial, family, labor, and others), that are top priorities for people in dispute— even more important than claiming legal rights. Mediation will If you submit your dispute to mediation, you can still use other methods of dispute resolution if deprive me of you do not reach an agreement. Also, mediation is confidential and does not affect your rights my rights. in any subsequent proceeding (arbitration, adjudication, litigation, and others). You can stop mediation at any time if you don’t like the path it is taking. Mediation is not The main advantage of involving a mediator in your dispute is to enable you and the other side to suitable when negotiate on the basis of your true priorities (what you need to be satisfied) rather than the positions people’s positions you have taken (what you want from the other side). In most cultures, people tend to negotiate are too far apart from what are called positions. Such negotiation usually involves extreme opening positions and to be able to reach a process of gradual and usually mutual concessions clouded by tactics (exaggerations, disguised an agreement. and undisguised threats, even lies and trickery). The result is often a compromise somewhere between the opening positions of the two sides. The presence of a skilled mediator changes the negotiating dynamic and helps both sides to keep the negotiation focused and framed positively, and to consider your positions and interests more objectively and realistically.  Mediation is a If you do not reach an agreement in mediation, it will often be achieved shortly afterwards. The waste of time if it agreement gap will usually be narrowed at mediation through the negotiation and the greater fails. understanding you and the other side will gain of each other’s situation as well as your own situation. Mediation almost always helps both sides develop a more realistic view of the situation. It also helps you consider the risks—legal and commercial—of not reaching an agreement. Mediation is a Mediation does involve costs: the mediator’s fee, the venue costs, and the fees of advisers for waste of money if the day (if you have them). However, when an agreement is not reached, the preparation for I do not reach an mediation is useful preparation for court or further negotiations. Most mediations last one or two agreement with days, so the additional fee to each side is small compared with the loss of time and the costs of the other side. going to court. Mediation is Choosing mediation is a wise option if you want to save time and money to resolve your dispute. always suggested Savvy lawyers who suggest mediation because it is a good option in your case hope that the by the side that good advice will motivate you to hire them again in the future. In many countries, mediation is has a weak legal a popular process for dispute resolution and is considered a valuable legal service. Mediation is case. not a soft option for a client or adviser. Mediation is a period of intense negotiation that requires flexibility, concentration, and imagination, as well as other legal and commercial skills. It is an intellectual and professional challenge, but the risks are low and the potential for a successful outcome is high. Mediation adds Many successful mediations follow unsuccessful negotiations between lawyers. Bringing people nothing to into mediation is often quicker and cheaper than negotiating through representatives. Mediation standard gives the people in dispute control of the negotiation and the opportunity for direct dialogue in a negotiations safe environment. If people have become stuck in their positions, the involvement of the mediator between lawyers. may be essential for them to evaluate their conflict objectively. Mediation will Mediation guarantees the people in dispute an opportunity to present their case to each other, prevent me from and to a neutral third person, in a way that allows them to highlight the issues important to them having my dispute and, if they wish, to show the strength of their feelings. In contrast, in a formal trial evidence is decided in court. limited by rules, and written statements of witnesses mean that there is little opportunity for you to speak. In addition, the mediation may be the first time that you and the other side have encountered each other in person since the dispute began; presenting the case face to face is often a powerful step toward improved communication—and thus to negotiation and to an agreement. If you do not reach an agreement at mediation (mediated settlement agreement) you can still go to court. MEDIATION SERIES: MEDIATION ESSENTIALS | CHAPTER THREE 47 But what if the best-known and tried-and-tested Some advisers prefer to be available by telephone, jurisdictions don’t have the best laws to support a appearing in person only if and when required by mediation process? What if, for example, the laws the client. Variations may also depend on culture. on nonadmissibility of mediation evidence in court The range of mediation adviser roles is set out are unclear? What if the attitude of the courts, in figure 3.1 according to the adviser’s level of while strong and clear in relation to arbitration, involvement in the mediation, from indirect forms remains uncertain and unpredictable in relation to of involvement to highly directive participation. mediation? Absent advisers. Absent advisers are exactly that: Making a choice about the applicable law for a absent. Advisers in this low intervention role need mediation clause should never be a default reaction to ensure that their clients can effectively and on the part of a legal adviser. Clients expect that efficiently participate in the mediation process, they are paying for reasoned, researched, and but they do not attend actual mediation sessions. rational advice. Professional advisers increasingly They provide legal, technical, and strategic advice need to have a good sense of the law applicable to before, during (by phone, text, or e-mail), and mediation processes in jurisdictions where they are after mediation; they also coach clients on how to likely to do business. participate in the mediation itself. Absent advisers may be involved in drafting a formal settlement Chapter 1, “How to Manage and Control Disputes: agreement when this occurs outside of the mediation Alternative Dispute Resolution,” can give you sessions. Absent advisers are most common when more ideas about helping your client prepare for direct client participation in the mediation is needed mediation. for a focus on relationships and individual needs without the imposition of legal or technical jargon. Thus, taking on the role of an absent adviser is ASSISTANCE DURING most suitable when your client has the capacity and willingness to participate actively and effectively MEDIATION in the process. This role also may be an attractive alternative when clients cannot afford the costs of FIVE ROLES OF ADVISERS: an adviser observer. WHICH ONE DOES YOUR CLIENT REQUIRE? Adviser observers. Adviser observers perform the Lawyers and other professional advisers can same tasks as absent advisers, and they attend play various roles in mediation. They may attend the mediation. As the word observer suggests, mediation in person for all or part of the session. professionals in this role do not participate Figure 3.1: Mediation adviser roles Supportive Absent Adviser Expert professional Spokesperson adviser observer contributor participant Less involved More involved Source: Samantha Hardy and Olivia Rundle. 2010. Mediation for Lawyers (Sydney: CCH Australia), chapter 5. 48 HOW PROFESSIONAL ADVISERS CAN ADD VALUE TO MEDIATION actively in the mediation and do not interact depends on their respective abilities and skills, the with the mediator, the other side, or any other mediation circumstances, and the strategy of the adviser; they only observe and offer legal or other adviser-client team. For example, advisers adopting professional advice to their client when needed. the role of supportive professional participant Adviser observers are suitable for more complex could provide legal or technical advice, assist with mediations in which disputants still wish to speak problem solving and reality testing, and draft a for themselves during the mediation but wish to mediated settlement agreement. Their clients could be supported by the presence of an adviser. In this offer their own views on what should be discussed role, advisers can help clients keep track of the at mediation; explain their priorities, interests, and complexities of issues and offer advice based on concerns; generate initial options; and make final new information learned during the mediation. This decisions after consulting with the adviser. The level of involvement prevents confusion that could supportive professional participant role works best arise in communicating with absent advisers, but it when both advisers and clients are well prepared, comes at increased cost to clients. work constructively together, and share similar views on desired outcomes. Expert contributors. Expert contributors perform the same tasks as adviser observers, but instead Spokesperson. Professional advisers take on the of being observers, they participate directly in the most directive role of spokesperson when they speak process by sharing their professional opinions with on behalf of their clients throughout mediation. In a the mediator, the other side, and the other side’s way, this role is the inverse of the adviser observer adviser. An exchange of professional opinions is a role. In that role, advisers speak only to their form of reality testing, in the hope of narrowing the clients; with a spokesperson, clients speak only to issues in question so that settlement can be reached their advisers to provide instructions as needed. sooner. (For example, disputants may be exposed The use of spokespersons should be reserved to conflicting views on the applicable law as the for mediations in which clients do not have the lawyers share their opinions.) However, expert capacity to participate actively. A person’s capacity contributors are still observers to the extent that can be affected by psychological disorders, mental they do not negotiate on behalf of their clients. As disabilities, and power imbalances between the with absent advisers and adviser observers, clients sides. When the spokesperson role cannot overcome must be prepared and able to conduct negotiations capacity issues, this role should not be adopted as on their own. The role of expert contributor is well it goes against the fundamental mediation principle suited to disputes in which legal or technical issues of direct disputant participation. In such cases it are important or complex enough to warrant the may be appropriate to manage the dispute through active presence and accompanying expense of an other dispute resolution methods, not mediation. adviser. These five mediation adviser roles demonstrate the Supportive professional participants. Supportive spectrum of involvement of professional advisers professional participants perform the same tasks in mediation. Notably, the presence of professional as expert contributors, but instead of being limited advisers in mediation does not remove the need for to sharing professional opinions, they work disputants to attend, as may be the case in court collaboratively with their clients as a team. This adjudication or arbitration. role maximizes the advantages of bringing advisers to mediation because it removes any restrictions As a matter of practice, advisers may vary the on their participation. The precise division of roles nature of their involvement in mediation, as the between professional adviser and client varies and case illustration in box 3.1 demonstrates. MEDIATION SERIES: MEDIATION ESSENTIALS | CHAPTER THREE 49 MONITORING THE MEDIATOR Make sure that the voluntary nature of your client’s participation is always respected. Your During the mediation, you can help your client clients should never be pressured into discussing by observing how the mediator runs the process something or agreeing to something. If you see and ensuring that the principles of mediation that this is happening, ask to speak to your clients are respected. You can raise any concerns in a privately and determine if they are happy with professional way so that the mediator does not get how the mediation is proceeding. In any event, defensive or feel criticized. Mediators are expected you should do this before your clients make any to promote and practice the principles of mediation, important decision to make sure they are making but you can provide extra safety for your client in an informed decision that they will not regret in the case a mediator makes a mistake. future. Box 3.1: Case illustrationa In her capacity as chief executive officer of a financial product development company, Ms. Fastcash is preparing to attend mediation concerning allegations of misrepresentation of one of the company’s financial products. She consults a lawyer, Mr. Law. Considering the different mediation advocacy roles outlined in figure 3.1, Mr. Law thinks about the different ways he could approach the mediation with his client. Mr. Law could choose from among these actions: ■■ Coaching Ms. Fastcash on how to represent herself in mediation and having no further involvement himself ■■ Attending the preliminary conference with his client, Ms. Fastcash, and then leaving Ms. Fastcash to participate in mediation meetings on her own ■■ Being physically absent from mediation but being accessible by phone or e-mail ■■ Being present at the mediation but having restricted participation (for example, observing for the first two hours and offering only legal advice to Ms. Fastcash; from the option generation stage onward, engaging directly with all participants in relation to legal points only) ■■ Being present during the mediation and participating fully and collaboratively with Ms. Fastcash throughout the process ■■ Being the “voice” of Ms. Fastcash for the entire mediation ■■ Joining the mediation only after his client, Ms. Fastcash, and the other side have reached agreement in principle, to give Ms. Fastcash legal advice on what she proposes to do and to draft the mediated settlement agreement Professional advisers are most helpful to their clients when they are able to discuss the various mediation advocacy roles together with their clients and the mediator and to identify the appropriate approach to suit the needs, circumstances, dynamics, and resources of the particular dispute. a. This case illustration is taken from Laurence Boulle and Nadja Alexander, Mediation: Skills and Techniques (Sydney, Australia: LexisNexis, 2012), chapter 10. 50 HOW PROFESSIONAL ADVISERS CAN ADD VALUE TO MEDIATION If you get an impression that the mediator is a small community and have a dispute with the favoring one side over another, ask to discuss this. owner of the building about the lease. The owner A mediator must be impartial. If a mediator agrees is having financial problems but wants to keep this with one side and not the other, or behaves very a secret from his partner, who is good friends with differently toward one side compared with the other, the wife. The owner is worried that, if he discusses you can remind the mediator about the principle of his financial situation, his partner will find out from impartiality. the wife or someone in the community will find out from the couple. This issue is discussed and the Another important principle to observe is direct husband and wife agree with the owner that they client participation. This means that the mediator will especially not discuss the owner’s financial should be ensuring that the participants are talking situation with anyone after the mediation. At the to each other as much as possible. If you notice that same time they all agree that the fact that they the mediator is talking to the advisers too much or were at mediation together does not need to be a not asking the participants to speak directly, ask secret from the world. For more on confidentiality to discuss this. Remind everyone that participants in mediation see chapter 1, “How to Manage and get the most out of mediation if they are talking Control Disputes: Alternative Dispute Resolution”; themselves and to each other. This is not always chapter 2, “How to Make the Most of Mediation”; possible or appropriate (for example, if advisers are and chapter 4, “How to Use Guiding Principles and discussing some legal issues or if a participant is Ethics to Ensure the Integrity of Mediation.” not confident enough), but this principle should be maximized as much as possible. IDENTIFYING AND MONITORING POWER IMBALANCES You may also need to pay attention to the principle of confidentiality. The principle is often mentioned As already mentioned, a mediator must be impartial. and briefly explained, but the practical details are However, the two sides in a dispute rarely have important to clarify. The main principle is that any equal positions of power. One side may be a big information revealed during mediation cannot be company and the other just a single employee. repeated outside the mediation and cannot be used One side may be a wealthy building developer and as evidence later in a court process. However, the the other a small community group. One side may precise scope of confidentiality depends in part on be well educated and eloquent and the other side agreement between your side and the other side. illiterate and lacking confidence. In such situations, For example, if people agree later not to discuss the mediator has a duty to ensure that the process is anything that was said during mediation, does this fair and accessible for both sides, while maintaining mean they will not discuss it with their close family, impartiality. If at any time a mediator believes that relatives, or friends? Is this realistic? May they post the power imbalance is so large that it is impossible something about the mediation on social media? to conduct a mediation process to which both sides May they initiate some legal proceedings because can meaningfully contribute, then the mediator may they now know some confidential information? need to terminate the mediation. The application of confidentiality is not always clear. If you suspect that your client may be likely Power can exist in many forms. It can, of course, to inadvertently reveal something in the future, be physical strength and presence, but it is often you should discuss any concerns with the mediator related to wealth, social and professional status and before the mediation and before your client reveals experience, influence, level of education, and ability the relevant information. Consider this story: A to speak confidently and persuasively. If you notice husband and wife operate a shop in a building in that the other side appears to have more power than MEDIATION SERIES: MEDIATION ESSENTIALS | CHAPTER THREE 51 your client, pay attention and ensure that this is not then your client will need to implement the terms inappropriately used to disadvantage your client of the agreement. You can suggest to your client during mediation. Mediators can deal with power follow-up meetings with the other side to see how imbalances in different ways. For example, if certain parts of the agreement are working (or not individuals have difficulty expressing themselves, working). This might be relevant when aspects the mediator could assist by clarifying what is said, of a business partnership have been renegotiated summarizing, asking helping questions, or asking and might need adjustment a few months later. parties if they want their adviser to speak on their 2. If a mediated settlement agreement is reached behalf. If a mediator does not do this, you may but not formally drafted, you might arrange use summarizing, paraphrasing, and other active to meet with your client to draft the mediated listening skills to help your client articulate their settlement agreement into a legally binding interests and priorities. You may also wish to speak format that will be signed by your client and the to the mediator in private about the situation if you other side. You can suggest that you and your feel that the mediator is not adequately addressing client have a feedback session with the other side a power disparity. and its professional adviser (if any) to discuss how the mediation went and to confirm your If your client is the one with more power in the client’s obligations and rights under the mediated mediation, then you have an ethical dilemma: Do settlement agreement. Make sure your client you allow the power imbalance to continue or do understands the consequences of breaching a you do something to help create a more balanced mediated settlement agreement. problem-solving process? We suggest that an 3. If there is no mediated settlement agreement, outcome resulting from a power imbalance is not advise your client not to give up. Further in the best interests of your client because it is negotiations or a new mediation may be needed. likely to create further problems for your client in Often mediation is the catalyst for further future. So it may be in the interests of your client negotiations and subsequent agreements. Your to empower the other side and to ensure a power client can consider making contact with the balance during mediation so that the other side is other side again. Any positive momentum or satisfied with the outcome. This can be done only communication established during the first by choosing collaborative problem solving over mediation should be continued. Your client power-based negotiation. should be open to a signal or contact from the other side. If your client starts new negotiations, working with a mediator is preferable. Without ASSISTANCE AFTER the mediator’s assistance, it is easy to slip back MEDIATION into old contentious habits. 4. If mediation is not working, advise your client How you assist your client after mediation will about using another dispute resolution process depend on how the mediation went and on its such as neutral evaluation, arbitration or court. outcome. Consider the following suggestions: 1. If there is an agreement at the end of the mediation (mediated settlement agreement), 52 HOW PROFESSIONAL ADVISERS CAN ADD VALUE TO MEDIATION NOTES 1. Adapted from Samantha Hardy and Olivia Rundle, Mediation for Lawyers (Sydney: CCH Australia, 2010), 264–65. 2. The “Ole!: Concise Case Analysis & Evaluation Tool” is available on the International Mediation Institute’s website at http://www.imimediation. org/ole. MEDIATION SERIES: MEDIATION ESSENTIALS | CHAPTER THREE 53 CHAPTER FOUR How to Use Guiding Principles and Ethics to Ensure the Integrity of Mediation CHAPTER FOUR GuidingNUMBER CHAPTER How to Use Principles Chapter Chapter Title: to and Ethics EnsureTitle the Integrity Chapter Title of Mediation INTRODUCTION Mediation is used throughout the world by people who are involved in disputes to reach mutually satisfying solutions outside the traditional process found in courts. As explained elsewhere in this deskbook, the advantage of flexibility makes mediation suitable to solve various types of disputes, including in family, community, commercial, construction, insurance, banking, and workplace contexts. The integrity of the mediation process is guaranteed by several guiding principles and ethics. Regardless of their approach and work style, all mediators must guarantee the quality of the process as well as acquire and maintain professional qualifications required to perform effective mediation sessions. This chapter explores the fundamental guiding principles at the core of mediation ethics Regardless of their and illustrates them with practical situations. It also includes “Did you approach and work know?” items, such as box 4.1. style, all mediators must guarantee the quality of the process as well as acquire GUIDING PRINCIPLES: and maintain professional MEDIATORS WORK TO ENSURE qualifications required YOU WILL BE SATISFIED WITH to perform effective THE PROCESS mediation sessions. Mediators must conduct a mediation process that meets certain professional standards. Your mediator is bound by ethical duties. Every mediator has the duty to acquire and maintain professional skills and abilities. The core professional qualities of a mediator are integrity, competence, impartiality, and contribution to the advancement of mediation practice and professionalization. MEDIATION SERIES: MEDIATION ESSENTIALS | CHAPTER FOUR 55 Box 4.1: Did you know? Mediators are bound by a professional code of conduct when certified by a mediation center or association. Remember, mediators cannot impose a decision on you: this is your ultimate safeguard. Generally, mediators are bound by ethical rules, just like lawyers or doctors. If accountability to ethical principles is crucial to you, you should consider choosing a certified mediator. Mediators usually are members of a mediation organization and are bound by a professional code of conduct. Look for mediation associations in your country that promote the quality of mediation using a professional code of conduct and a complaint process to enforce it. Many alternative dispute resolution (ADR) centers in the Middle East and North Africa region keep a roster of trained and certified mediators. Mediators should conduct the mediation so that Direct participation everyone involved (not only you, but also your lawyer or adviser, if you have one) complies with As explained in chapter 3, you and the other people certain guiding principles. These principles are directly involved in the dispute (the disputants) are your guarantee that the process will run smoothly: actively involved in resolving the dispute. This is one of the most important principles of mediation ■■ Autonomy of participants, which consists of two because your satisfaction with the process and the subprinciples: direct participation in the process success of any resulting agreement depends a lot on and decision-making power in how the process how much those involved in the dispute participate runs and its outcomes in the process. If you feel that you participated ■■ Good faith and transparency directly, you will have a strong sense of ownership ■■ Confidentiality of the outcome and, as a result, any agreement is ■■ Fairness and diligence more durable. For more on direct participation see the section “Direct participation” in chapter 3. On the principles of mediation from the perspective of professional advisers, see “Main principles of Decision-making power over the mediation” in chapter 3. process AUTONOMY OF PARTICIPANTS: Participants in mediation have the right to make PARTICIPANTS COMMIT TO their own decisions on a completely voluntary DIRECT PARTICIPATION AND basis regarding the possible resolution of any issue RETAIN DECISION-MAKING in dispute. You control the process and the outcome POWER of the mediation. Making your own decisions is a fundamental principle of mediation that every Autonomy of the participants means that both sides mediator should respect and encourage. of the dispute must be involved in the mediation process. 56 HOW TO USE GUIDING PRINCIPLES AND ETHICS TO ENSURE THE INTEGRITY OF MEDIATION At the outset, mediators provide information about GOOD FAITH AND their role and remind you that they don’t have any TRANSPARENCY: ALL PARTIES authority to make decisions: you and the other side SHARE INFORMATION OPENLY make the decisions. AND WORK SINCERELY TOWARD Mediators act as facilitators and help you in A SOLUTION making the choices about moving forward and Transparency is key to efficient mediation. The reaching a solution to your problem. Your mediator mediator provides the participants with clarity about may provide information about the process, ask the mediation process, including the mediator’s questions, raise issues, encourage you to review own role. The mediator will make it possible for your alternatives to settlement, and help you you to discuss issues with the other side and will be explore options to solve the dispute. Generally your clear about how the mediation is run and what you mediator will not provide you or the other side with can expect. Openness and clarity are essential for legal or professional advice. building confidence and a good working relationship between the mediator and the participants. This You and the other side are given the opportunity to openness helps the mediator avoid difficulties generate and consider a range of options before you at a later stage or conflicts with the participants. commit to anything (see box 4.2). To help you make Because mediation is kept confidential, you should informed decisions to reach a particular agreement, be comfortable about being transparent and sharing mediators who follow good practice will make important information about your position, your you aware of the importance of consulting other arguments, and the reasons you take a certain view professionals, when appropriate. And remember: or feel a certain way. In exchange, the other side will you may withdraw from mediation at any time if do the same. (See the next section, “Confidentiality: you feel that the process is not helping you move participants keep the mediation confidential.”) toward clarity and resolution. Box 4.2: Autonomy of participants in practice Imagine you have a dispute with a landlord or a tenant. If you choose mediation to solve your dispute, you and the other side will have input into the mediation process from beginning to end. You can influence how your dispute is managed in mediation and the content (terms and conditions) of its resolution. Your mediator will help both you and the other side clarify your goals for the mediation. You and the other side will be encouraged to talk directly with each other as much as possible. This effort also includes making sure that representatives or advisers (for example, lawyers) do not dominate the process. Try to speak for yourself and rely on a spokesperson only if you are not feeling confident or cannot express what you want clearly. This principle is called “direct participation.” Generally, mediators do not advise on disputed issues. Rather they will help you and the other side identify issues (for example, repairs, rent arrears, terminating a lease agreement, and so on), consider alternatives to settlement (for example, doing nothing or going to court), and develop options about future actions and outcomes (for example, respectfully communicating, performing tasks in compensation for rent arrears, or sharing contacts to get repair materials at better prices). The decision to settle the dispute or not is in your hands and those of the other side. You may put an end to the mediation at any time. In summary, the purpose of a mediation process is to maximize the decision making of participants. MEDIATION SERIES: MEDIATION ESSENTIALS | CHAPTER FOUR 57 A mediator should promote honesty and sincerity confidential. Any written agreement to enter into among all participants and should not knowingly the process should include provisions concerning misrepresent any fact or circumstance during confidentiality and its scope. mediation. Likewise, you should be honest with the mediator and the other side. You are not “fighting” The duty of confidentiality applies to everyone in a courtroom. Instead, you are trying to find involved in the mediation process and to the a solution. Understanding what the underlying mediator too. The basic principle is that all verbal problem is and sharing the right information are and written exchanges during mediation are strictly very important. The more you share, the more confidential. In addition, a mediator should not you’ll receive! communicate any information to any nonparticipant about how participants acted in the mediation. This You are required to participate in the process duty is primarily intended to encourage you and in good faith, to be transparent with the other the other side to speak freely during the mediation side—including about the information in your and to build confidence. Information may not be possession—and to cooperate actively in searching shared with others outside of the mediation either for a solution. The other side should treat you during or after the end of the mediation unless the same way. In practice, you must agree at the the participants have made explicit agreements beginning of the mediation session to cooperate to the contrary with each other and the mediator. in good faith with the mediator and the other Information that was already public or known side during the mediation. If a legal entity, such before the mediation is not covered by the duty of as a company, is involved as a participant, the confidentiality (for more information on the duty of representative attending the mediation must possess confidentiality, see box 4.3). For example, if you the legal authority to settle on behalf of the entity. prepare a document with confidential information Thus, if you participate not in your own name but for the purpose of the mediation, this document will as the president of a company, make sure you arrive be kept confidential. But if you show the contract at the mediation session with the right authority and that led to the dispute—and the contract was not mandate. confidential before the mediation—it won’t become confidential simply because you use it during the At the mediation session, you may be accompanied mediation. by one or more people, including lawyers, who assist and advise you. The same good faith and If the mediator holds private sessions with one side transparency rules apply to everyone involved in only (which a mediator can do, unlike a judge) the the mediation. confidentiality of those sessions should be discussed and confirmed beforehand. Usually, anything said in CONFIDENTIALITY: a private session is confidential. The mediator must PARTICIPANTS KEEP THE obtain your approval before disclosing information MEDIATION CONFIDENTIAL from a private confidential session to the other side. Mediators must clarify the participants’ expectations FAIRNESS AND DILIGENCE: of confidentiality before starting the mediation MEDIATORS CONDUCT A process. You must be informed of the limitations PROFESSIONAL AND FAIR of confidentiality. For example, in most countries, a mediator who learns information about an actual PROCESS or potential threat to human life or safety is legally A mediator should work to ensure a high-quality bound to report it to public authorities. This is, of process and to encourage mutual respect among course, an extreme example—most of the time, the participants. The mediator must make a discussions and documents will be kept strictly commitment to diligence and procedural fairness 58 HOW TO USE GUIDING PRINCIPLES AND ETHICS TO ENSURE THE INTEGRITY OF MEDIATION Box 4.3: Did you know? The duty of confidentiality applicable to mediation makes certain documents or testimony inadmissible in courts. If you testify in any arbitral, judicial, or administrative proceedings, the duty of confidentiality prevents you from disclosing as evidence any information learned in mediation, including statements made by any of the participants during mediation and meetings held to prepare for the mediation, opinions or suggestions made by participants on a possible settlement of the dispute, or the fact that one of the participants has expressed a willingness to accept a settlement proposal. There are limited exceptions to confidentiality. These exceptions are important to protect the integrity of the process. For example, mediation information may be disclosed for the purpose of enforcing or challenging a mediated settlement agreement or for the purpose of proving the validity of a formal complaint of professional misconduct made against a mediator or any other person who participated in the mediation in a professional capacity (such as an accountant acting as an expert). This is, of course, very rare. throughout the mediation. Participants should feel should understand how to deal with manipulative they are able to present their position fully and to or intimidating negotiating tactics employed by express their concerns. participants. To enable negotiations to proceed in a fair and orderly manner, or for an agreement to be Keeping participants well informed about the reached, the mediator will ensure that participants mediation process is crucial for procedural fairness. have sufficient time to secure sources of advice or A mediator should ensure that all participants information. understand the mediation process, the procedures to be followed, the role of the mediator, and their The mediator has a duty to support you in assessing own role in mediation. the feasibility and practicality of any proposed agreement in both the long and short term, in Mediators must ensure that all parties to the accordance with your own subjective criteria dispute participate fully. Mediators will conduct of fairness and taking cultural differences and the process with fairness to you and the other the interests of any vulnerable stakeholders into participants and will ensure that everyone has account. adequate opportunities to be heard, to be involved in the process, and to seek and obtain legal or other If you have difficulty understanding the process, advice before finalizing any resolution. Above all, the other side’s position, or the settlement options you will have the opportunity to participate in the being discussed, don’t walk away immediately. discussions and the problem-solving process. Ask the mediator for clarification of any aspect that you need help with. A good mediator will notice if Being treated with respect and dignity is also a a participant is having difficulties and will address crucial expectation of fairness. The mediator should this effectively. encourage and support balanced negotiations and MEDIATION SERIES: MEDIATION ESSENTIALS | CHAPTER FOUR 59 Mediators will take reasonable steps to prevent any feel the mediator has not complied with professional misconduct that might invalidate an agreement in ethical standards, you may make a complaint about mediation or that might create or aggravate a hostile the mediator (see box 4.4). environment. Mediators should take appropriate steps including, if necessary, postponing, The mediator’s role differs substantially from other withdrawing from, or terminating the mediation in professional and client relationships. The mediator any of these circumstances: is neither your lawyer nor your friend. Mixing ■■ If a mediation session is being used to further the role of mediator and the role of a professional criminal conduct adviser is problematic, and mediators must strive ■■ If a mediator is made aware of domestic abuse or to distinguish between these roles. A mediator violence among the participants should not provide expert professional advice (for ■■ If a mediator believes that participant conduct, example, legal or financial) during the mediation including that of the mediator, jeopardizes process, and you and the other participants should conducting a mediation consistent with mediation agree in advance about this issue. However, where ethics. appropriate, a mediator may recommend that you seek external professional advice, consider resolving your dispute through arbitration or other ADR processes, or go to court. A mediator should INTEGRITY: MEDIATORS not accept another appointment on the same matter ARE COMMITTED (for example, act as an arbitrator after a mediation TO THE MEDIATION fails) unless all participants expressly agree. PROCESS AND ETHICAL A mediator should be transparent and honest PRINCIPLES regarding the fees that you will pay. The mediator should provide the fee structure and explain the Integrity is a core value for the mediator. The likely expenses before the mediation commences. mediator is expected to comply with the professional This helps you determine if you wish to hire the code of ethics and general social and ethical mediator. The fees should be reasonable and norms and values, even under external pressure. If consider, among other things, the mediation service, several codes of conduct apply (for example, if the the type and complexity of the matter, the expertise mediator is also a lawyer, an architect, a doctor, or a of the mediator, the time required, and the rates judge) then the most stringent rules will apply. This customary in the community. The same applies principle is meant to protect you. if there are co-mediators. The better practice in reaching an understanding about fees is to set down Mediators must be honest and diligent, act in good the arrangements in a written agreement to mediate faith, and put the interests of the participants above before mediation starts. their own. Pressure from outside of the mediation process should never influence the mediator. To preserve their integrity, mediators should not Mediators should never force the participants to enter into a fee agreement that depends on the result agree to something just to boost their reputation as of the mediation or the amount of the settlement. a problem solver. If you feel this pressure at any Likewise, a mediator should not accept a fee for time, raise your concerns. If they are not addressed referral of a matter to another mediator or to any satisfactorily, walk away from the mediation. If you other person. 60 HOW TO USE GUIDING PRINCIPLES AND ETHICS TO ENSURE THE INTEGRITY OF MEDIATION Box 4.4: Did you know? There are recourses against mediators who behave unethically. Every mediator has to perform in accordance with the qualities outlined in this chapter (impartiality, competence, respecting the autonomy of participants, confidentiality, and so on). However, in the unfortunate and rare event that mediators do not comply with their duties, what can you do? Your options depend on the professional status of the mediator. When choosing mediators, it is important to know if they are affiliated with a center or association. A mediator may be certified by a mediation association or listed on a center’s roster. Every certified mediator must comply with a code of conduct. Every association has its own code of conduct and its own complaint procedure through which you can initiate disciplinary proceedings. Some countries even have a national registry of mediators that guarantees the same standards of conduct for every mediator and is enforced by a complaint process. You are encouraged to check with your local mediation centers to learn about how they monitor the ethical practices of mediators and deal with misconduct. Even though every mediator is bound by the ethical principles, enforcement will likely be more difficult with a mediator who is not certified because there is no mediation association or public organization to assist you. In this situation you may try to make a complaint to another professional association to which the mediator belongs (such as an engineering association or medical association). Alternatively, you may attempt to bring a lawsuit for damages before a court of law. COMPETENCE: other side need to agree on whom you wish to choose as your mediator. MEDIATORS KNOW WHAT THEY ARE DOING A mediator’s knowledge includes the nature of conflict; the dynamics of power and violence; Mediators have a duty to be competent in terms communication patterns in conflict and negotiation of knowledge, skills, and ethical understandings. situations; cross-cultural issues; mediation process Mediator competence is an ongoing responsibility stages and functions; the law of mediation (for from the beginning of the mediation to its end. example, the law on confidentiality in mediation); Mediators should not accept an assignment unless enforceability of mediated settlement agreements; they have the necessary qualifications to satisfy and the liability of mediators. the reasonable expectations of the participants. Mediators must feel competent to serve in that A mediator’s skills include the following: capacity and demonstrate that they have relevant ■■ Dispute diagnosis and analysis knowledge, skills, and ethical awareness. You ■■ Appropriate communication skills (including should feel free to discuss these issues with listening, questioning, reflecting, and mediators and satisfy yourself of their knowledge summarizing) before choosing them. Remember, you and the MEDIATION SERIES: MEDIATION ESSENTIALS | CHAPTER FOUR 61 ■■ Negotiation techniques interest, conflict of interest, bias, or circumstances ■■ Drafting of mediated settlement agreements likely to give rise to a reasonable apprehension or presumption of bias. Such circumstances include For more information about what you should these: expect from your mediator, see the sections “What ■■ Financial or personal interests in the outcome of does a mediator do and not do?” in chapter 1 and the mediation “Monitoring the mediator” in chapter 3. ■■ Existing past or future financial, business, or professional relationship with any of the Mediators should answer your questions regarding participants or their representatives as far as the their training, education, and experience. Mediators mediator is aware who are certified by a mediation organization ■■ Any other potential source of bias or prejudice usually appear on a publicly available list. When concerning a person or institution that may affect mediators are appointed by a court or another the mediator’s independence or impartiality or body, the appointing institution has the obligation reasonably create an appearance of bias to make reasonable efforts to ensure that each mediator is qualified for the particular mediation. Mediators have a commitment to the participants This appointing institution will usually be in charge and the process and they must not allow pressure of any complaints and disciplinary proceedings or influence from anyone else to compromise their against the mediator. independence. If during the course of mediation, the mediators If at any time mediators feel unable to conduct the determine that they cannot conduct the mediation process in an independent and impartial manner, competently, they should discuss this issue with they should express that concern and offer to the participants as soon as practicable and take withdraw from the mediation. appropriate steps to address the situation (by withdrawing or requesting appropriate assistance, for example). If you have any concerns about the competence of the mediator, you should raise these CONTRIBUTION TO with the mediator or your lawyer immediately. ADVANCEMENT OF PRACTICE: MEDIATORS CAN IMPROVE IMPARTIALITY: YOUR THE REPUTATION MEDIATORS ARE NOT OF MEDIATION IN YOUR LAWYERS—THEY GENERAL ARE UNBIASED Mediators are said to have a moral duty to educate Mediators have a duty to act independently and to the public and to improve and advance the practice conduct the mediation in an impartial manner. They of mediation. They have an obligation to use their should be unbiased, treating all participants with knowledge to assist the public in developing an fairness and respect. A mediator should not act as understanding of, and appreciation for, mediation. an advocate for any participant. Most mediators are committed to making mediation accessible to those who would like to The mediator has a responsibility to disclose as use it, including providing services at a reduced soon as possible to the disputants any personal rate or on a pro bono basis as appropriate. Public 62 HOW TO USE GUIDING PRINCIPLES AND ETHICS TO ENSURE THE INTEGRITY OF MEDIATION communications by mediators should not mislead mediators should demonstrate respect for different the public, misrepresent facts, or contain any points of view within the field, seek to learn from statements likely to create false expectations. other mediators, and are committed to work together with other mediators to improve the profession and Mediators often participate in research and should be better serve people in conflict. open to a participant’s feedback when appropriate. Mediators have an obligation to continue their As a matter of professional practice, mediators education to improve their professional skills and promote cooperation with other professionals abilities. and encourage clients to use other professional resources when appropriate. Don’t forget that if you Mediators generally make themselves available to are happy with mediation, you should tell people assist newer mediators through training, mentoring, about it! and networking. In line with mediation values, MEDIATION SERIES: MEDIATION ESSENTIALS | CHAPTER FOUR 63 CHAPTER FIVE How to Draft Contractual Documents for Mediation CHAPTER CHAPTER FIVE NUMBER How to Chapter Draft Title: Contractual Chapter Title Documents for Mediation Chapter Title INTRODUCTION Three main contractual documents relate to mediation: mediation clauses, agreements to mediate, and mediated settlement agreements (MSAs). This chapter explains each in detail and provides guidelines for drafting each type of document. A mediation clause is part of a contract (such as a business contract) that describes the process that the people who sign the contract agree to follow if a dispute related to the contract arises between them in the future. An agreement to mediate is a contract that is created after a dispute has arisen and signed by the people who agree to participate in mediation. These people are called mediation participants, and they generally include you The agreement to and the other side, your lawyers, and the mediator. The agreement to mediate typically defines mediate typically defines the specific dispute to be mediated and may the specific dispute to be take the form of an appointment contract between the mediator and the mediation participants. It outlines the mediation process and the mediated and may take the roles and responsibilities of the mediation participants. In practice, form of an appointment contract the contents of mediation clauses and mediation agreements may between the mediator overlap. and the mediation participants. A mediated settlement agreement, called an MSA, is a contract signed by you and the other side should you reach an agreement through mediation. An MSA contains the contents of your agreement. You and the other side may specify that the terms of the MSA are confidential if both sides desire confidentiality. MEDIATION SERIES: MEDIATION ESSENTIALS | CHAPTER FIVE 65 MEDIATION CLAUSES WHAT TO DO You should consider several important issues when When people sign a contract, they rarely think drafting a mediation clause. The following sections about dispute resolution clauses. Disputes are contain points that may be useful. Remember that usually far from the parties’ thoughts as they focus you can tailor the clause to suit your particular on future business relationships and success. Often, contract or relationship. However, to avoid professional advisers are responsible for designing confusion or disagreements in case of a future dispute resolution clauses that will be appropriate dispute, the mediation clause should be clear and in case of future disagreements. These clauses are complete. popular in joint venture agreements; construction, commercial, financing, and franchising contracts; Make it clear that mediation will be and intellectual property transactions. attempted before litigation A mediation clause is a dispute resolution clause The clause should state that if a dispute arises you that refers the dispute specifically to mediation. A and the other side will try mediation before going mediation clause may be a standalone clause or it to court. It is important to require mediation as a may be part of a larger dispute resolution clause prerequisite to court proceedings or arbitration that includes different processes. Mediation clauses and to allow for the possibility of court action or can incorporate the rules of a mediation institution arbitration if mediation does not result in a mediated or they can be designed by you and your lawyers to settlement agreement. suit your specific needs. Using a mediation clause that incorporates a set of institutional mediation Consider the scope of disputes to be rules has a number of advantages: It in simplifies covered the drafting of the clause and you receive a set of The clause should clearly define which kind of rules that have been tried and tested. At the same disputes it will cover. It should be broad enough time, there may be limitations to using institutional to apply to any sort of dispute that is somehow rules, as they may not suit your specific needs. connected with the original transactional contract. However, institutional rules usually leave room for For example, the mediation clause may define the parties to adjust them to suit their needs. You “dispute” as any dispute, difference, or question will need to decide whether it is more cost-effective arising from or in connection with the agreement for you to design your own clause or to search for or its formation. This definition is broad enough to one that suits you. ensure that the mediation clause covers any kind of dispute arising between you and the other side, Mediation clauses also carry moral and commercial provided it has some link to the original commercial force. The existence of a mediation clause in a or other agreement between you and the other side. business contract can focus people’s minds on sorting out their differences in an amicable way. In places where initiating mediation may be viewed as Consider a multitiered dispute a sign of weakness by the other side, the insertion resolution clause of a mediation clause in a contract may be a useful The clause may outline several steps for dealing strategy to remove the need for one party to suggest with a possible dispute. Such a clause is called mediation after a dispute has arisen. Research a multitiered dispute resolution (MDR) clause. shows that at the mediation table, skilled mediators For example, the first tier may start with a simple can guide even the most reluctant participants to requirement for one side to notify the other of a recognize opportunities for resolution. problem. The next tier could be a meeting between 66 HOW TO DRAFT CONTRACTUAL DOCUMENTS FOR MEDIATION you and the other side to discuss the problem and Decide how costs will be allocated to try negotiation. The following tier could be and paid mediation between you and the other side. The final tier in the clause could be a determinative The clause should outline who will pay for the alternative dispute resolution (ADR) process such mediation. The standard practice is for each side to as arbitration. In such cases, if you and the other side cover 50 percent of the costs, but you might change cannot reach an agreement at mediation, the dispute this depending on the financial capacity of each would go to arbitration, where an independent third side in the agreement. The clause does not need to person called the arbitrator would hear arguments specify the exact costs of the mediator because the for both sides and issue a binding decision. clause may be written years before a dispute arises. For further information that may help you structure Decide how to initiate mediation a multitiered dispute resolution process and clause, see the sections “Conflict management in projects” The clause should outline how and when the and “Conflict management design principles” in mediation process can be initiated. As noted chapter 1. previously in the section “Consider a multitiered dispute resolution clause,” there could be several Set time frames levels of dispute resolution processes, each with specific time frames. For example, the clause might The clause should contain specific time frames state that mediation must take place within 45 days for performing various elements of the mediation of the exchange of certain notices between you and or MDR process such as notice of a dispute, the other side; alternatively, the clause might state appointment of mediation, and conduct of the that mediation must take place within 30 days of mediation. For example, a clause could state that the appointment of a mediator. if a dispute arises, a disputant must notify the other side within seven days and the other side must Include a description of the respond within seven days. Time frames will also mediation process be set for the conduct of the mediation as explained in the section “Decide how to initiate mediation” The clause should outline the mediation process later in this chapter. to be followed. The process must be described in sufficient clarity that it can be recognized as a Choose a mediator or a method for mediation process and can be distinguished from choosing the mediator negotiation, conciliation, and arbitration. For this reason, many such clauses incorporate the mediation The clause should either specify the mediator that rules or guidelines of a mediation service provider. you and the other side would use or establish the This alternative enables the mediation clause to method of choosing the mediator. The clause must remain fairly short while still incorporating the specify how a mediator is to be appointed if you detail necessary to describe the mediation process. and the other side cannot agree on someone. For For example, instead of explaining the entire example, the clause may state that if you and the mediation process, the American Arbitration other side cannot agree on a mediator, then the Association Mediation Clause refers to the president of the local dispute resolution institute or Commercial Mediation Procedures as follows: bar association has the power to appoint a mediator. This solution is called a default appointment “If a dispute arises out of or relates to this contract, mechanism. or its breach, and if the dispute cannot be settled through negotiation, the disputants agree first to try in good faith to settle the dispute by mediation MEDIATION SERIES: MEDIATION ESSENTIALS | CHAPTER FIVE 67 administered by the American Arbitration becomes important. In such a case, the clause Association under its Commercial Mediation should specify where mediation would take place, Procedures before resorting to arbitration, litigation, ideally a venue that is suitable for all participants. If or some other dispute resolution procedure.”1 it doesn’t specify a location, the clause can specify how the disputants would choose the location. In Decide how to manage disputes determining the location, each side should consider about procedural issues geographical convenience, travel costs, and time differences. The clause should also deal with the possibility that you and the other side may disagree about certain Choose the language procedural issues. When drafting each point of the mediation clause, keep in mind the possibility In the event that more than one language is used in of disagreement and ensure that a reliable option your relationship with the other side, it is important is available to resolve such disagreements. As to specify in what language the mediation would explained in the previous section, “Choose a be conducted. If necessary, you can also include mediator or a method for choosing a mediator,” wording about the use of interpreters during the clause may provide that in the event you and mediation and the associated costs. the other side cannot agree on which mediator to use, a mediator will be appointed by a nominated Identify the applicable law mediation service provider or other mutually The clause may list any laws that might be relevant accepted entity. to the mediation. This is particularly important when you and the other side live in different countries Ensure all relevant people sign the because those countries will have different laws. mediation clause For example, if you live in Cairo and your business The mediation clause is part of a business or other partner lives in Beirut, then you will need to agree agreement between you and another person or what country’s law will apply should you both have organization. Therefore, both of you will sign the a dispute in the future. It might be Egyptian law overall agreement and be bound by the mediation or Lebanese law, but it could also be the law of clause. It’s important to remember that if you have a another country such as England or France. Your dispute with a different person who is not a party to legal adviser will be able to recommend the law the overall agreement, the mediation clause will not most suitable for your circumstances. bind the other person. For example, if you enter into a business arrangement with person A to establish WHAT NOT TO DO a furniture business and your business contract The section “What to do” outlines the issues contains a mediation clause, then the mediation that are important to remember when drafting a clause will apply only to disputes you have with mediation clause. This section reinforces some of person A. If you have a dispute with person B about those issues by listing the things you should not do the delivery of books to the furniture business, the when drafting the clause. mediation clause will not extend to that dispute because person B did not sign the original contract Do not try to exclude litigation and is not bound by the clause. Although the mediation clause can compel you to Identify the location of mediation try mediation before going to court, it must not exclude the possibility of litigation. If a mediation When you and the other side live or work in different clause purports to do this, it may be held to be countries, the location for a potential mediation invalid and unenforceable by a court. 68 HOW TO DRAFT CONTRACTUAL DOCUMENTS FOR MEDIATION Do not just refer to “mediation” in a mediation, namely you, the other side, the in your clause mediator, and your professional advisers. Given the flexibility and the newness of the mediation WHAT TO DO process, a mere reference to mediation in a dispute resolution clause without a process description does This section outlines the types of matters that may not provide sufficient procedural clarity. The clearer be the subject of an agreement to mediate. The the process description in the clause, the less room previous discussion of mediation clauses addressed for misunderstandings about what you and the other similar information, so this section is more compact. side can expect at the mediation table. Moreover, Agreements to mediate can typically include the procedural clarity will distinguish mediation from following items: other ADR processes (see chapter 1, “How to ■■ The place of mediation (in what jurisdiction the Manage and Control Disputes: Alternative Dispute mediation will take place) Resolution”). For these reasons, your clause should ■■ The participants in the mediation (who will incorporate the mediation process of an established attend the mediation) mediation service provider or alternatively set out ■■ Authority to settle at the mediation and the extent the basic structure of the mediation process. For to which participants have legal authority to make example, in Egypt, both the Cairo Regional Centre decisions to resolve the dispute at mediation for International Commercial Arbitration and the (particularly relevant in relation to corporations Investors’ Dispute Settlement Center under the with representatives attending mediation) General Authority for Investment and Free Zones ■■ Mediator selection process and qualifications set out a mediation process in their respective (addressed in the section “Choose a mediator or mediation rules. a method for choosing a mediator”) ■■ The scope of the mediation (addressed in the section “Consider the scope of disputes to be AGREEMENTS TO covered”) MEDIATE ■■ The conduct of the mediation, including forms of communication, documentation, and recording, and representation of the participants Although contracts include mediation clauses to ■■ Professional fees of the mediator and who will trigger mediation if a dispute arises between you pay them and the other side in the future, agreements to ■■ Other charges in relation to the mediation (for mediate become relevant once a specific dispute example, venue and who will pay for it) has arisen, regardless of whether or not you and ■■ A statement of principles of the mediation, which the other side have signed a mediation clause. They may include fair treatment (procedural fairness), lay the foundations for the mediation process and autonomy of participants, confidentiality, the relationships among mediation participants. voluntariness, speed, and minimal cost principles Agreements to mediate aim to clarify the relationship ■■ A description of the mediation process, including between you, the other side, and the mediator, as preliminary meetings, mediation meetings, and well as your rights and obligations in relation to postsettlement sessions (as in the description each other and in relation to your specific dispute. in the section “Include a description of the Agreements to mediate establish the mediator’s mediation process”) authority and the roles and responsibilities of all ■■ Time frames for the mediation (as in the sections participants in the mediation process. Subject to “Set time frames” and “Decide how to initiate institutional rules to the contrary, an agreement to mediation”) mediate will usually be signed by the participants MEDIATION SERIES: MEDIATION ESSENTIALS | CHAPTER FIVE 69 ■■ The legal status of agreements or other outcomes dispute if no agreement is reached in mediation. resulting from the mediation (for example, Conversely, the agreement may prevent the whether an agreement takes the form of an mediator from having anything to do with the ordinary contract or a consent arbitral award) dispute in future processes if no agreement is ■■ Roles and responsibilities of participants in the reached in mediation.) mediation, including mediator(s), participants, legal or other representatives, experts, Mediation processes may vary according to how interpreters, witnesses, supporters, and observers each of the factors is managed. It is therefore ■■ Good faith participation (requiring that all important to address each of these factors in the participants commit to engage in mediation in a agreement to mediate. A well-prepared agreement, genuine and honest way with a view to trying to which has been explained to all parties taking part resolve the dispute) in the mediation, will help to manage expectations ■■ Ethical obligations of mediators, such as fairness, about the purpose of the process and the roles and impartiality, and managing power imbalances responsibilities of participants. It will also minimize ■■ Ethical obligations of lawyers and other the risk of disputes arising during the mediation professionals involved (such as your lawyer process itself. is obliged to prepare you for mediation and to advise you in relation to offers made by the other WHAT NOT TO DO side and to explain the details and consequences Like mediation clauses, agreements to mediate are of any agreement reached) contractual instruments. Therefore, it is useful to ■■ Statement of who can terminate the mediation keep in mind that the “what not to do” tips relevant and how, such as a requirement that you issue to mediation clauses apply to agreements to mediate a notice of termination of the mediation in as well. writing rather than just saying verbally that you wish to terminate the mediation (Usually the In addition, when drafting the agreement, keep the mediator and each of the parties have the power following in mind: to terminate the mediation.) ■■ The relationship of mediation to parallel ■■ Don’t get lazy and think that an oral agreement to procedures, such as the ability to file court mediate will suffice. Put it in writing. proceedings or conduct arbitration while ■■ Don’t forget to read through the agreement to mediation is continuing and the impact of mediate and ensure you understand all of its prefiling mediation on court and other limitation terms. Ask the mediator if you do not understand periods something. ■■ Description of transitions from one process ■■ If you are a professional adviser, don’t forget to phase to another and how these should proceed, explain to your client the meaning of the terms of for multitiered dispute resolution procedures that the agreement to mediate and the consequences involve processes such as arbitration (possibly of a breach of the agreement. including guidelines about confidentiality ■■ Don’t forget to get participants to sign. The between process phases and the extent to which agreement to mediate is signed by the mediator, information revealed in one phase can be used in the parties, their advisers, and others who will be another) present throughout the mediation. ■■ Relationship between mediators and arbitrators ■■ Don’t let people come into parts of the mediation or judges who may deal with the dispute without signing a confidentiality agreement (for subsequently (For example, an agreement to example, experts or observers might attend only mediate may allow a mediator to arbitrate the a small part of the mediation). 70 HOW TO DRAFT CONTRACTUAL DOCUMENTS FOR MEDIATION MEDIATED SETTLEMENT and responsibilities contained in the MSA. You will need to decide what sort of legal status you want AGREEMENTS your MSA to have. A mediated settlement agreement (MSA) is If you are not able to resolve your dispute in the an agreement that you may reach during your mediation session, you could still make an interim mediation. It may contain an understanding that agreement with the other side to do something or you or the other side will do something. It may list not to do something before the next mediation or issues about which you and the other side agree. It before the dispute proceeds to a different process. also may list issues about which you and the other For example, if you are involved in a business side disagree. This section will discuss several partnership dispute, you may agree to postpone an important points to remember when drafting an application to dissolve the partnership for an agreed MSA. time period. In addition, pending the resolution of the dispute, you and the other side may agree Most MSAs take the form of a legally binding on certain communication and decision-making contract, which you and the other side are able to protocols to keep the business turning over in a enforce in court. However, the legal nature of MSAs peaceful way. Further, you may agree on a joint can vary. In some countries, you and the other side statement to clients, shareholders, or the public may submit your MSA to a court and the court will during the interim period. In addition, you may give your MSA the status of a court order. In other ask the mediator to draw up a memorandum of the circumstances, your MSA may take the form of a mediation session that might include the following: consent arbitral award. For further information, ■■ A summary of the issues that have been discussed refer to chapter 1, “How to Manage and Control in mediation Disputes: Alternative Dispute Resolution.” ■■ A list of the options for resolution that were discussed at mediation It is also possible that you and the other side may ■■ A clause that the memorandum is confidential choose to prepare your MSA in a nonbinding form and cannot be used in any way in any other such as a statement of intention or a memorandum proceedings of understanding. These documents indicate the ■■ A time frame for reflection and an opportunity to joint intention of you and the other side and provide resume the mediation at a later date a useful record. However, you cannot enforce such a document in a court of law. Memoranda of understanding can be useful when certain WHAT TO DO obligations may not be recognized by contract law. This section discusses the main issues for you to For example, they may relate to your or the other consider when drafting an MSA. Particular issues side’s intention to agree to do something in the may be relevant to the content of your dispute future; alternatively, they may relate to your or the and your MSA. If you are unsure about what to other side’s behavior in the workplace. include, what not to include, and what wording to use, consult with your professional adviser before For the stated reasons, it is important to be clear signing the agreement. whether you and the other side want the outcome to be legally binding and what will happen if someone Record the terms of the mediated does not fulfill an obligation of the agreement. The settlement agreement potentially legal nature of the MSA means that you and the other side should consider asking a lawyer You and the other side will need to decide how the to check all the terms and to explain your rights agreement will be recorded. The most common method is to record the agreement in writing. MEDIATION SERIES: MEDIATION ESSENTIALS | CHAPTER FIVE 71 Even if your dispute is not complicated and you An MOU might be useful in a workplace or other feel that it has been amicably resolved, it is still a dispute in which certain terms of the agreement (for good idea to write down even a simple agreement. example, in relation to behavior in the workplace) Circumstances may change in the future, and you would be too diffuse for a court to enforce. In these would be wise to have a written agreement to rely on circumstances, it can be very helpful to have a rather than depending on the differing recollections signed document that you and the other side can of you and the other side. refer to in the future. Decide who will draft the mediated An MSA will often take the form of a legal settlement agreement contract. When an MSA is a legal contract, you or the other side can go to court if you disagree It is the mediator’s role to help you and the other about compliance. Taking an MSA to court is an side reach an agreement. The mediator will test exceptional situation, as most times people who the practicality of the options under consideration reach an agreement in mediation comply with its and ask questions to identify any potential gaps. In terms. At the same time, you may feel “safer” if addition, the mediator may record, upon your joint your MSA is in a legally enforceable form. request, the main points of agreement between you and the other side. Although you and the other side In some countries, a special type of contract called may sign this document as evidence of your intention a notarized settlement deed requires the lawyers and good faith, this is a summary document, which to sign off on the document as well. This addition is not legally binding. The mediator will generally may effectively provide the MSA with a more not draft the MSA document because drafting the straightforward and even expedited pathway to legally binding terms of an MSA may compromise enforcement. Check what the laws in your country the mediator’s impartiality. It is up to you with the and the other side’s country state about this option, assistance of your professional advisers to draft the as the laws vary considerably. detailed terms of your MSA. In certain circumstances, your lawyer may advise If you have any doubts about your rights and that your MSA take the form of a consent arbitral responsibilities in the agreement, especially if it award. Participants mainly use this option in relation is complex, get a professional adviser to review it. to mediation of cross-border disputes because You can do this during the mediation session or ask arbitral awards are generally easier than MSAs to schedule another session to give you time to seek to enforce internationally. An MSA may also take advice. the form of a consent arbitral award in the context of MDR processes such as arb-med-arb. An arb- Decide on the legal status of the med-arb process commences with the opening of mediated settlement agreement an arbitration, moves into mediation, and concludes You and the other side will need to decide if your with arbitration either to record the MSA as a agreement is to be legally binding and enforceable, consent award or, in the event that no agreement is or not. reached between you and the other side, to make a decision that is binding on both sides. Sometimes you and the other side may be content for an MSA to take a nonlegally binding form such as a It may be possible to ask a court or a tribunal to memorandum of understanding (MOU). An MOU make an official order on the basis of your written is like a statement of intention. It is a document that MSA, giving it an enhanced legal status in terms of clearly records in writing your joint intention, but it enforceability. Sometimes a court or tribunal will is not a document that can be enforced in a court. offer a mediation service itself with the option to 72 HOW TO DRAFT CONTRACTUAL DOCUMENTS FOR MEDIATION make any resulting MSAs into court or tribunal the outcome of mediation. Moreover, the form orders. When a court endorses an MSA, it may first may affect content. For example, the terms of review its contents to ensure the MSA includes no a memorandum of understanding may be more breach of public order. flexible than the terms of a legal contract. When mediators understand what sort of outcome in Whatever wording and legal format you use, it is terms of content (interests) and form (legal status) crucial that the MSA clearly expresses the intention you seek, they are in a better position to ensure of you and the other side regarding what will thorough reality testing of options and alternatives. happen if someone does not comply with its terms. Do not include unenforceable Ensure everyone involved is named terms in the mediated settlement in the agreement agreement The mediated settlement agreement should clearly Do not include in the MSA any terms that cannot state the names of the people making the agreement, be enforced. The nature of the legal status of the as well as their legal capacity to sign the agreement. MSA will determine what terms are appropriate to If someone is not available to sign the agreement include in the agreement. For example, provisions or does not have the final authority to settle, it about workplace behavior such as “will improve could cause problems later. When corporations are communication skills” or “contribute to a friendly involved in the dispute, ensure that a person with work atmosphere” or even instructions that one the appropriate authority signs the MSA. Make partner say good morning to the other on a regular sure that you clarify any issues related to identity basis may not be enforceable in an ordinary and authority to ensure that the agreement will contractual document because they arguably lack work after the mediation. In some circumstances certainty and are too vague. there may be a requirement for the agreement to be witnessed. Generally, there is no requirement Do not forget that only people who for the mediator or professionals to sign the MSA sign the agreement are bound by it because they are not bound by it. Remember that only those who sign the MSA can be bound by its Make sure you have the signatures of everyone to be terms. bound by the agreement. If the other side promises in the MSA that someone else who is not a signatory WHAT NOT TO DO to the MSA will pay you money, you cannot demand that money from the designated person. Why not? The previous section outlines the important issues Because that person has not signed the MSA and to remember when drafting an MSA. This section therefore he or she is not bound by it. reinforces some of those issues by listing the things you should not do when drafting such an agreement. NOTES Do not forget to discuss the legal status of a mediated outcome in 1. American Arbitration Association, “A Guide preliminary meetings with the to Commercial Mediation and Arbitration mediator for Business People,” American Arbitration In preliminary meetings with the mediator, do not Association, NewYork, 2013, 12, https://www.adr. forget to discuss the legal status of the outcome of org/aaa/ShowPDF?doc=ADRSTAGE2019455. mediation. This is part of your goal as it reflects your intention to be legally bound (or not) by MEDIATION SERIES: MEDIATION ESSENTIALS | CHAPTER FIVE 73