Demand and growth of private resolution processes has highlighted less than optimum understanding, utilization and practice amongst all users and service providers – parties in conflict or potential conflict, their counsel and mediators, both established and aspiring. The importance of dispute resolution, both process fairness and effectiveness in achieving desired outcome, behooves mediators to
develop a strong understanding and thereafter practice approach that is both appropriate and effective. Deficient and inappropriate practice by both established and aspiring mediators undermines both the effectiveness, appeal and integrity of this important field of practice and service. Consulting, instruction and training in relation to the following matters might be of benefit and value:
Private Dispute Resolution Processes
a. Mediation
b. Arbitration
c. Med/arbs
What are they? Which one or combination is best suited for the dispute or potential dispute at hand? (process design), examples of flexible permutations to all processes to maximize efficiencies and prospects for success. If parties to an existing or looming dispute are unrepresented – discussion and advice concerning need for counsel and guidance in selection of counsel – desirable style and experience.
Mediations - clear up chronic confusion over labels/style (facilitative, transformational, interest-based, evaluative, etc.) and how they operate and interconnect in practice.
Advice and Guidance to Mediators – Aspiring and Experienced Alike
a. The importance of fostering and maintaining trust with participants to mediation – counsel and clients.
b. Trust to:
• Not overstate experience and qualifications
• Be objective and fair with process and toward the parties
• Be engaged and effective throughout
• Maintain confidentiality in discussions with individual groups
c. Unpacking and addressing biggest and most common mistakes committed by mediators – aspiring and experienced alike
• Imposing process on parties – failing to appreciate that the process is that of the parties not the mediator (party autonomy) For ex. – mediators dictating whether there will be an opening/plenary session and who can or cannot speak
• Expressing evaluative opinions regarding likely trial outcomes when not requested by the parties or not helpful to the process or at an inopportune time in the process
• Utilizing subtle and not-so-subtle bullying/pressure tactics on the parties and counsel in striving for resolution
Advice and Guidance to Parties, Clients and Their Counsel in Proceeding with Mediation
a. Considerations related to private dispute resolution platforms – direct negotiation, mediation, arbitration, med/arb
b. Prudent timing for such processes – during litigation or before any litigation
c. Selection of the mediator – importance of trust in mediator and process
• Importance of experience, effectiveness, style, principle-based approach
• If any concern over mediator that has been selected by the opposing parties – formulating questions to pose and understandings to reach with that mediator in advance of the mediation
For ex.,
• If the parties wish to have an opening session with the input of counsel and clients, the mediator needs to be informed to not interfere with that desire
• If evaluative input is likely necessary during the mediation, the mediator should be queried about his/her trial experience and for verification, confirmation can be sought from Ivan
d. Role and importance of advocacy at the mediation
e. Brainstorming effective strategy in negotiating
Our lives, work and situations involving disputes and their possible resolution, all unfold against a backdrop of a serious trust deficit in society. Work over several decades with hundreds of litigation counsel as mediator and arbitrator informs the advice Ivan can provide to parties in need of counsel and where the selection of an appropriate mediator and arbitrator is concerned.
Ivan’s input, focussed on enhancing both the integrity and effectiveness of these dispute resolution platforms and processes, is always provided in a neutral, professional and constructive fashion. We can all do better – clients can and deserve to be better informed, counsel can and should be more effective in the dispute resolution process and mediators (as opposed to arbitrators), can and ought to practice to a higher standard.