At Norling Law, we are passionate about providing our clients with a problem-solving approach to solving legal issues. We use our problem-solving skills in serving our clients on a daily basis.
This article explores the history of mediation and the importance of encouraging mediation.
History of mediation
Mediation is at the heart of the modern alternative dispute resolution (ADR) movement. The development of mediation in New Zealand has been ad hoc and pragmatic and was a response to specific challenges facing the legal system including the expense and delay involved in litigation.
New Zealand’s mediation movement is part of a global trend. The history of mediation dates back to developments in industrial relations in the late 19th century. The modern mediation movement took off in the 1980s and continues to grow.
Academic attention and the formation of professional organisations during the 1980s and 1990s also contributed to the rise of mediation. The two leading ADR professional bodies have been Arbitrators’ and Mediators’ Institute of New Zealand (AMINZ) and the Resolution Institute.
Mediation processes began to be incorporated into various statutes. In some areas, such as family and employment law, mediation challenged litigation’s monopoly. However, mediation is unlikely to completely replace litigation as the dominant form of dispute resolution anytime soon.
Commercial mediation
While statutory regimes have been the dominant driver of the modern mediation movement, there has been reluctance to take a leadership role in commercial law mediation. This has contributed to the particularly ad hoc growth of private mediation in relation to commercial disputes, which make up the majority of civil cases.
Historically, commercial disputes have been resolved in the first instance through negotiation. If negotiation failed, litigation or arbitration would commence.
Commercial mediation increased during the 1990s.[1] Many mediations resulted from business people seeking to avoid expensive and time-consuming litigation. It was created to help users resolve disputes. Mediations also resulted from commercial contracts dispute resolution clauses, which stated that mediation would be used in the event of a dispute.
Conclusion
Reports recommended that the courts take a more systematic approach to diverting cases to mediation to relieve the pressure on the court system and reduce expense and delay.[2]
Lawyer have an obligation to inform parties of ADR options throughout the civil procedure process. Rule 13.4 of the Conduct and Client Care Rules provides that a lawyer assisting a client with the resolution of a dispute must keep the client advised of alternatives to litigation that are reasonably available to enable the client to make informed decisions regarding the resolution of the dispute.
These developments have the potential to increase commercial mediation given the dominance of commercial matters in civil cases.
How can you find out more?
At Norling Law, we are passionate about solving commercial disputes and legal issues.
Mediation is a dispute resolution process that could help to avoid costs and achieve a prompt resolution. Norling Law supports mediation as an efficient way of solving legal issues and offers independent and impartial mediation services.
Wendy has extensive experience as a commercial mediator, including mediations conducted online. Wendy completed training at Program on Negotiation at Harvard Law School, USA and the Arbitrators and Mediators Institute of New Zealand (AMINZ). Wendy is also an Associate Member of AMINZ. This training complements the skills she already has in negotiation and dispute resolution.
If Wendy’s expertise can be of assistance, the first step is to send us the details of your dispute here.
Reference:
Dr Grant Morris and Annabel Shaw The History and Development of Mediation (online looseleaf ed, Thomson Reuters) at [4.M.3].
Footnotes:
[1] Dr Grant Morris “Towards a History of Mediation in New Zealand’s Legal System” (2013) 24 ADRJ 86 at 97.
[2] Courts Consultative Committee Court Referral to Alternative Dispute Resolution: A Proposal to Extend the Use of Alternative Dispute Resolution in Civil Cases (Department for Courts, 1997); Law Commission Delivering Justice for All: A Vision for New Zealand Courts and Tribunals (NZLC R85, 2004); and K Saville-Smith and R Fraser Alternative Dispute Resolution: General Civil Cases (Ministry of Justice, 2004).
At Norling Law, we are passionate about providing our clients with a problem-solving approach to solving legal issues. We use our problem-solving skills in serving our clients on a daily basis.
This article discusses skills required by mediation advocates from Dr Grant Morris and Annabel Shaw’s commentary (A to Z of New Zealand Law — Alternative Dispute Resolution — Mediation (online ed, Thomson Reuters)).
Parties often have mediation advocates in commercial mediations. Mediation advocates are the representatives who act on behalf of the parties in a mediation. While mediation advocates are usually lawyers, different advocacy skill sets are required.
The adversarial approach
It is common for mediation advocates to adopt the adversarial approach. This is because lawyers are used to litigation and being focused on rights rather than interests. This hinders effective mediation and is not beneficial to the clients.
Another reason why the adversarial approach is commonly used by mediation advocates is because statutory regimes govern a lot of mediation in New Zealand and mediation is often considered to resolve civil legal claims once they have been commenced. For example, a lot of commercial mediations happen as part of the litigation process. In other situations, clients may expect their lawyers to take an adversarial approach.
Some view that mediation advocates who are lawyers prefer the adversarial approach because of economic reasons. This is because mediation usually reduces future disputes and consequently legal fees.
However, it is important for lawyers to remember that rule 13.4 of the Conduct and Client Care Rules provides that a lawyer assisting a client with the resolution of a dispute must keep the client advised of alternatives to litigation that are reasonably available to enable the client to make informed decisions regarding the resolution of the dispute.
Mediation advocacy skills
It is important for mediation advocates to have knowledge of the process. Having knowledge of the mediation rules, ethics, contractual obligations and the law relating the subject matter is also important.
Preparing before the mediation process is essential. Mediation advocates should know the issues and facts well. They should adopt a mediation advocacy approach as they will be the ones that influence the clients’ approach to mediation.
Mediation advocates should also help clients identify their interests and needs and prepare an explanation of the client’s perspective and desired outcome. They should prepare the clients so they can respond to unexpected situations and emotions and assist clients identify possible results by undertaking a risk assessment. They should also encourage their clients to actively participate in the process.
Mediation advocates require other skills in addition to those that are required in an adversarial role. These include communication skills, relationship management skills, ability to build rapport, emotional competence, ability to be persuasive, advanced negotiation skills and problem-solving skills.
Ways to increase mediation advocacy
Because the mediation advocacy approach results in better outcomes for the clients, it should be encouraged to mediation advocates. Mediation education should be encouraged to the legal profession to increase awareness of the mediation advocacy approach.
Educating clients and the wider community about mediation can be another way to increase awareness. This can include teaching dispute resolution skills to the wider public.
Conclusion
The adversarial approach is used excessively even though it is not beneficial to the clients. The importance of mediation advocacy should be promoted, and awareness should be increased to improve the efficacy of mediations. This will allow the parties to reach quick and affordable resolutions while preserving relationships as well.
Clients should ensure that they engage experienced mediators and mediation advocates who encourage the mediation advocacy model. Mediator skills are discussed in our previous issue.
How can you find out more?
At Norling Law, we are passionate about solving commercial disputes and legal issues.
We offer professional, independent, and impartial mediation services to users in a dispute. Norling Law supports mediation as an efficient way of solving legal issues. Especially if the parties to the dispute want a negotiated outcome that remains private and confidential and puts a prompt end to the costs of having the dispute ongoing.
As mediators and mediation advocates, we assist the users to a mediation achieve their priorities throughout the mediation process and enable them to make informed decisions regarding the resolution of the disputes they are involved in.
Our mediator, Wendy Alexander, understands the importance of the mediation advocacy approach and regularly assists with the facilitation of settlements through mediation.
At Norling Law, we receive a large number of commercial disputes. Commercial disputes can be extremely stressful and can often be suitable for mediation. The parties may have been negotiating directly to reach a solution that would meet the interests of both parties. However, the parties often find it difficult to reach agreement.
Using mediation is an option that could potentially resolve commercial problems quickly and efficiently. Mediation is a low-cost option to consider before deciding on whether to litigate. Traditional mediation is usually a more expensive process as it involves the users meeting physically and there are resulting costs involved with travel and booking a neutral meeting room (or rooms). Sometimes traditional mediation might not be available at all for urgent matters.
Wendy can effectively assist users of mediation with her extensive experience as a commercial mediator. Wendy completed training at Program on Negotiation at Harvard Law School, USA and the AMINZ. Wendy is also an Associate Member of AMINZ. This training complements the skills she already has in negotiation and dispute resolution.
Wendy often receives feedback from the mediation parties that they felt relaxed and in safe hands with the management of the dispute and that Wendy truly understood where they were coming from.
If Wendy’s expertise can be of assistance, the first step is to send us the details of your dispute here.
At Norling Law, we are passionate about providing our clients with a problem-solving approach to solving legal issues.
This article discusses skills required by mediators from Dr Grant Morris and Annabel Shaw’s commentary (A to Z of New Zealand Law — Alternative Dispute Resolution — Mediation (online ed, Thomson Reuters)).
Mediator skills
Mediators should have sound knowledge of the relevant law and specific subject matter. Mediators also require skills including communication skills, ability to deal with conflict, sound knowledge about the context and procedure, and negotiation and decision-making skills.
Some skills such as effectively displaying empathy are inherent.
Being able to deal and work with conflict is one of the most important skills. The ability to manage the process, facilitate parties’ communication and negotiations, and problem-solving are important skill sets.
These skills are used by the mediator throughout the mediation process.
Process management
Whether the mediation process is productive will depend on the mediator’s ability to build and maintain trust with the parties. This is because parties will need to share sensitive information so that the mediator can identify the issues and needs of the parties.
Mediators also need to build rapport, be empathetic and impartial throughout the mediation process. They also need to be able to adopt a process that is appropriate to the relevant dispute. This requires practical skills such as the ability to analyse and use information.
Another essential skill is the ability to manage the mediation process well. It is important not to own or control the process, but to manage it.
Communication facilitation
Mediators will need to manage the parties’ communications and interactions by conveying their understanding to the parties. This will happen more often in the joint session and negotiation phases. The mediators will encourage the parties to share information and clearly identify their interests. Mediators will also assist the parties understand where the other side is coming from.
Parties may show hostility because of stress or other reasons. For this reason, mediators need to be able to communicate clearly to the parties. Managing effective communication requires skills in dealing with emotion and unexpected behaviour. Active listening is another important communication skill.
Written communication skills such as writing and drafting skills are crucial as well. This is because mediators need to be able to effectively manage written communications. Mediators could also be involved in drafting agreements.
Mediators need to ask the right questions and reframe them accordingly. They may also coach the parties on how they can constructively communicate with each other. For example, mediators could encourage the parties to reframe their language. Mediators also need to be fair when they provide coaching to make sure they always appear impartial.
Mediators may sometimes choose to remain silent. This will encourage the parties to communicate with each other and discuss possible resolutions.
Problem-solving and facilitating negotiations
Another important skill is to facilitate the parties’ negotiations and help them reach an agreement. The mediator will help the parties identify possible options for resolutions. Mediators can guide negotiations by encouraging parties to have realistic expectations.
Mediators may also help the parties conclude the mediation process if an agreement cannot be reached. It is important to manage the conclusion of the mediation appropriately.
Conclusion
Some mediator skills are inherent, others can be learnt. Emotional competency skills distinguish great mediators from good mediators.
Having a skilful mediator manage the mediation process is crucial. Our mediator, Wendy Alexander, has extensive experience in facilitating settlements through mediation. Wendy often receives feedback from the mediation parties that they felt relaxed and in safe hands with the management of the dispute and that Wendy truly understood where they were coming from.
How can you find out more?
At Norling Law, we are passionate about solving commercial disputes and legal issues.
We offer professional, independent, and impartial mediation services to users in a dispute. Norling Law supports mediation as an efficient way of solving legal issues. Especially if the parties to the dispute want a negotiated outcome that remains private and confidential and puts a prompt end to the costs of having the dispute ongoing.
As mediators and representatives, we assist the users to a mediation achieve their priorities throughout the mediation process and enable them to make informed decisions regarding the resolution of the disputes they are involved in.
At Norling Law, we receive a large number of commercial disputes. Commercial disputes can be extremely stressful and can often be suitable for mediation. The parties may have been negotiating directly to reach a solution that would meet the interests of both parties. However, the parties often find it difficult to reach agreement.
Using mediation is an option that could potentially resolve commercial problems quickly and efficiently. Mediation is a low-cost option to consider before deciding on whether to litigate. Traditional mediation is usually a more expensive process as it involves the users meeting physically and there are resulting costs involved with travel and booking a neutral meeting room (or rooms). Sometimes traditional mediation might not be available at all for urgent matters.
Wendy can effectively assist users of mediation with her extensive experience as a commercial mediator. Wendy completed training at Program on Negotiation at Harvard Law School, USA and the AMINZ. Wendy is also an Associate Member of AMINZ. This training complements the skills she already has in negotiation and dispute resolution.
If Wendy’s expertise can be of assistance, the first step is to send us the details of your dispute here.
This article discusses the classic process of mediation and what is involved in a mediation session from Dr Grant Morris and Annabel Shaw’s commentary (A to Z of New Zealand Law — Alternative Dispute Resolution — Mediation (online ed, Thomson Reuters)).
Mediation process
While there is no set process of mediation, facilitative mediation is the usual model. The three stages involved with facilitative mediation is pre-mediation, mediation session and post-mediation.
Pre-mediation
Pre-mediation consists of initiation, intake and preparation.
The initiation of mediation can happen through a contract clause, court referral, or through the parties’ representatives.
During the intake phase, the parties will be informed about the process and will be able to decide if mediation is suitable for them. Parties and mediators will also be able to build rapport.
The parties will be able to ask questions about the process during the preparation stage. They will then provide relevant information to the mediator and exchange information with each other. They will also agree on the venue and duration of mediation.
Mediation session
The mediator and parties will try to understand and define the issue and resolve it in the mediation session.
A mediation session usually includes a mediator’s opening, parties’ openings, mediator’s summary, joint discussion, negotiation, separate meetings, final decision-making, agreement and closing. The duration of this process will depend on the nature of the dispute.
The mediator during the mediator’s opening will remind the parties of the process and will help them to build trust.
The parties’ openings let the parties understand the legal issues, risks and other side’s perspective. The mediator will assist the parties to resolve the issues.
The mediator will then summarise each parties’ perspectives. This step allows the parties to hear the other side’s story through an impartial mediator.
The parties can then clarify and discuss the issues in the joint discussion. The mediator will guide the discussion and the parties can directly talk about the issues. This process will allow them to understand the relevant interests. The mediator will generally ask questions to assist the discussion.
During the negotiation and problem-solving phase, the parties will be able to consider the options for resolution. The mediator will guide the parties to be realistic and work through any deadlocks.
Mediation caucusing is the use of separate meetings between the mediator and the parties individually. This may happen at any stage of the mediation process. It can be used to discuss the conflict and overcome barriers and challenges of mediation. Mediation caucusing is discussed in our previous issue ‘Overcoming barriers and challenges of mediation’ article.
The final decision-making and agreement stage allows the parties to finalise the outcome. If the parties fail to reach a resolution, caucus sessions may be held to check if an agreement can be reached. The parties may also consider whether to pursue further mediation, alternative dispute resolution or litigation.
In the closing phase, the mediator will acknowledge the effort the parties have made, and the parties will be able to make comments.
Post-mediation
After the conclusion phase, the parties may finalise or certify the agreements. Post-mediation may happen if a case was adjourned or if the parties were unable to reach a resolution.
How can you find out more?
At Norling Law, we are passionate about solving commercial disputes and legal issues.
We offer professional, independent, and impartial mediation services to users in a dispute. Norling Law supports mediation as an efficient way of solving legal issues. Especially if the parties to the dispute want a negotiated outcome that remains private and confidential and puts a prompt end to the costs of having the dispute ongoing.
As mediators and representatives, we assist the users to a mediation achieve their priorities throughout the mediation process and enable them to make informed decisions regarding the resolution of the disputes they are involved in.
Our mediator, Wendy Alexander, regularly assists with the facilitation of settlements through mediation.
At Norling Law, we receive a large number of commercial disputes. Commercial disputes can be extremely stressful and can often be suitable for mediation. The parties may have been negotiating directly to reach a solution that would meet the interests of both parties. However, the parties often find it difficult to reach agreement.
Using mediation is an option that could potentially resolve commercial problems quickly and efficiently. Mediation is a low-cost option to consider before deciding on whether to litigate. Traditional mediation is usually a more expensive process as it involves the users meeting physically and there are resulting costs involved with travel and booking a neutral meeting room (or rooms). Sometimes traditional mediation might not be available at all for urgent matters.
Wendy can effectively assist users of mediation with her extensive experience as a commercial mediator. Wendy completed training at Program on Negotiation at Harvard Law School, USA and the AMINZ. Wendy is also an Associate Member of AMINZ. This training complements the skills she already has in negotiation and dispute resolution.
Wendy often receives feedback from the mediation parties that they felt relaxed and in safe hands with the management of the dispute and that Wendy truly understood where they were coming from.
If Wendy’s expertise can be of assistance, the first step is to send us the details of your dispute here.
Mediation is a process that involves a neutral third-party helping the parties in a dispute to reach a mutually agreeable resolution. Communication is at the heart of this process, and the style of communication used can significantly affect the outcome. In New Zealand, there are several styles of communication that are particularly helpful in a mediation context. In this article, we will explore these styles and their benefits.
Active Listening
Active listening is a communication style that involves fully engaging with the speaker and giving them your undivided attention. In a mediation context, active listening helps to establish trust and rapport between the parties. It also ensures that everyone feels heard and understood, which can help to reduce tensions and create a more collaborative environment.
Active listening involves paying close attention to what the speaker is saying, asking clarifying questions, and reflecting back on what has been said. This style of communication requires patience, empathy, and an open mind. By demonstrating active listening, the mediator can create a safe space for the parties to communicate effectively and work towards a resolution.
Non-Judgmental Language
In a mediation context, non-judgmental language is crucial to creating a non-threatening environment. When people feel judged or criticised, they are less likely to engage in open communication and are more likely to become defensive. This can make it challenging to reach a resolution.
Non-judgmental language involves avoiding negative labels or assumptions about the parties or their behaviour. Instead, the mediator should focus redirecting specific behaviours or actions that are causing the conflict. The mediator can do this by reframing the conversation so that the parties hear and understand the perspective of the other party and are more likely to focus on finding a solution rather than defending themselves.
Open-Ended Questions
Open-ended questions are a powerful communication tool in mediation because they encourage the parties to explore their thoughts and feelings more deeply. Unlike closed-ended questions, which can be answered with a simple yes or no, open-ended questions require more thoughtful and reflective responses.
By asking open-ended questions, the mediator can help the parties to uncover underlying issues and identify potential solutions. This style of communication can also help to reduce defensiveness and promote a more collaborative environment.
Reflective Language
Reflective language involves summarising or paraphrasing what the speaker has said to ensure that the mediator and the other party has understood their perspective correctly. This style of communication is essential in mediation because it helps to build trust and understanding between the parties.
Reflective language also helps to ensure that everyone is on the same page and that there is no miscommunication. By summarising what has been said, the mediator can help the parties to clarify their positions and identify areas of agreement.
Conclusion
Effective communication is critical in mediation, and the styles of communication discussed in this article can be particularly helpful in a New Zealand context. By using active listening, non-judgmental language, open-ended questions, and reflective language, mediators can create a safe and collaborative environment that promotes resolution. By incorporating these communication styles into their practice, mediators and lawyers can help the parties to resolve conflicts and improve relationships between the parties.
How can you find out more?
At Norling Law, we are passionate about solving commercial disputes and legal issues.
We offer professional, independent, and impartial mediation services to users in a dispute. Norling Law supports mediation as an efficient way of solving legal issues. Especially if the parties to the dispute want a negotiated outcome that remains private and confidential and puts a prompt end to the costs of having the dispute ongoing.
As mediators and representatives, we assist participants to a mediation achieve their priorities throughout the mediation process and enable them to make informed decisions regarding the resolution of the disputes they are involved in.
At Norling Law, we receive a large number of commercial disputes. Commercial disputes can be extremely stressful and can often be suitable for mediation. The parties may have been negotiating directly to reach a solution that would meet the interests of both parties. However, the parties often find it difficult to reach agreement.
Using mediation is an option that could potentially resolve commercial problems quickly and efficiently. Mediation is a low-cost option to consider before deciding on whether to litigate. Traditional mediation is usually a more expensive process as it involves participants meeting physically and there are resulting costs involved with travel and booking a neutral meeting room (or rooms). Sometimes traditional mediation might not be available at all for urgent matters.
Wendy Alexander can effectively assist users of mediation with her extensive experience as a commercial mediator. Wendy completed training at Program on Negotiation at Harvard Law School, USA and the AMINZ. Wendy is also an Associate Member of AMINZ. This training complements the skills she already has in negotiation and dispute resolution.
If Wendy’s expertise can be of assistance, the first step is to send us the details of your dispute here.
