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.
Negotiation is a crucial component of any mediation process, whether it involves resolving a commercial dispute, a business transaction, or any other type of conflict. Mediation can be a powerful tool for finding common ground and reaching a resolution that satisfies all parties involved. However, successful mediation requires effective negotiation skills. In this article, we will explore some of the most important negotiation tips for mediation.
Tip 1 – Know your goals and priorities
Before entering into mediation, it’s essential to have a clear understanding of your goals and priorities.
What is it that you hope to achieve through the mediation process?
What are your non-negotiables?
What concessions are you willing to make?
Understanding your goals and priorities will help you stay focused during the mediation and avoid getting side-tracked by minor details.
Tip 2 – Focus on interests, not positions
One of the most important negotiation tips for mediation is to focus on interests, not positions. In other words, do not get bogged down in the specifics of what each party wants. Instead, try to identify the underlying interests and motivations that are driving each party’s position. By understanding the interests at play, you may be able to find creative solutions that meet everyone’s needs.
Tip 3 – Listen actively
Active listening is critical during any negotiation, and mediation is no exception. Make sure to listen carefully to what the other parties are saying and ask clarifying questions if needed. By actively listening, you can gain a better understanding of the other party’s interests and priorities and find common ground.
Tip 4 – Build rapport
Building rapport with the other parties can help create a positive and productive atmosphere for mediation. Be friendly and respectful and try to find common ground outside of the dispute at hand. Building rapport can help establish trust and encourage the other parties to be more open to negotiation.
Tip 5 – Use objective criteria
Using objective criteria, such as industry standards or legal precedents, can help remove the emotion from the negotiation and create a more rational basis for decision-making. When both parties agree on objective criteria, it can be easier to find common ground and reach a resolution that satisfies both parties.
Tip 6 – Explore alternatives
If negotiations reach a deadlock, it is essential to explore alternative solutions. Mediation offers an opportunity to be creative and think outside the box and to brainstorm alternative solutions that may not have been considered before mediation. It is important for the parties to be open to compromise.
Tip 7 – Keep an open mind
Finally, it’s essential to keep an open mind during mediation. Be willing to consider different perspectives and ideas and be open to changing your own position. The best way to achieve this is to become curious about the other perspectives shared in mediation, by asking open questions and seeking further explanations. By keeping an open mind, you can find unexpected solutions and reach a resolution that satisfies everyone.
Conclusion
In conclusion, mediation is a powerful tool for resolving conflicts, and requires effective negotiation skills. By keeping these negotiation tips in mind, you can increase your chances of a successful mediation and find a resolution that satisfies all parties involved.
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 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 the situation here.
There are a variety of barriers to settlement throughout the mediation process. These include communication barriers, unrealistic expectations, emotional barriers, cultural barriers, intraparty conflict and fear of losing face.
This article discusses caucusing as an effective way of overcoming barriers and challenges of mediation.
Mediation caucusing
Mediation caucusing is the use of separate meetings between the mediator and the parties individually during a joint mediation session. Caucuses can be conducted at various stages of a mediation and sometimes in combination with joint sessions. Mediators often use caucus sessions to discuss the conflict and advance the negotiation.
David A Hoffman noted in his book on shuttle diplomacy that caucusing is widely used because it can overcome a variety of tactical and strategic barriers that would be difficult in joint sessions such as (to name a few):
communication barriers
emotional barriers
information barriers
cultural barriers
strategic barriers
unrealistic expectations
obstacles to generating options
need for negotiation coaching
need for process management
internal conflicts
fear of losing face
Communication barriers
In mediations with particularly high-conflict behaviour, the parties may communicate aggressively and may find it difficult to remain in the joint session. A skilled mediator will reframe the statements made by each party and may decide to meet separately with the parties to manage any barriers to communication between them.
Emotional barriers
Mediations often cause intense emotions, especially when the conflict is highly personal, or one party believes that the other party is not bargaining in good faith.
Hormonal changes occur when people are under stress. Adrenaline production rises, and people experience a fight or flight reaction. Caucusing provides parties with a space to recover from any confronting behaviour. Caucuses also create a space for safe venting of intense emotion without negatively affecting the atmosphere of the joint session.
Information barriers
The mediator is sometimes given critical information unknown to the other side on a confidential basis in a caucus session.
The parties are often reluctant to share such information because if it is shared in advance of trial, the other party will have time to prepare a response to lessen the impact of the damaging evidence. However, a mediator is obliged to obtain express permission to share information imparted confidentially in a private session. A skilled mediator will understand and adhere to professional obligations and will not compromise confidentiality or impartiality.
Cultural barriers
Mediators need to identify and manage any perceived power imbalances. Racial, cultural, class, and other differences may lead some people to perceive themselves to be less powerful so they prefer private caucuses in a mediation. This is especially the case if a party’s identity is a central element in the mediation and the aggrieved party perceives (accurately or inaccurately) a lack of respect from the other party because of that identity.
For example, a group of students at Columbia University in 1996 went on a hunger strike and requested the university to create an ethnic studies department. The anger and mistrust on both sides made joint meetings problematic so caucus sessions were particularly useful.
Strategic barriers
Most parties are reluctant to share their true bottom line out of fear that this will be exploited by the opposing party. Caucus sessions may help mediators determine a zone of possible agreement.
The mediator may ask each party separately what they believe the other side might be willing to offer to settle the case. The two answers may assist the parties to come to a range within which the parties are comfortable they can settle.
The mediator may also ask a range a party might be willing to bargain in. Such “range bargaining” communicates a willingness to be flexible and begin defining the parameters of a zone of possible agreement.
Unrealistic expectations
Parties often have overly optimistic assessments of their best alternative to a negotiated agreement (BATNA). A skilled mediator can assess a party’s BATNA by exploring what will happen in Court if the dispute is not settled. Overconfidence is one of the many cognitive miscalibrations to which the human mind is prone; others include self-serving bias and status quo bias, which likewise can skew a party’s assessment of his or her BATNA.
A skilled mediator will be able to test the inferences that have led each party to their conclusions about their BATNAs. In joint sessions, parties usually exaggerate their likelihood of success and minimise the other party’s likelihood of winning.
Lawyers commonly seek mediation when they believe the other side, or even their own clients, have an overly optimistic view of the case because the mediator can persuade each side to be more realistic.
Obstacles to generating options
The parties may fear that sharing something in a joint session could reveal their openness to solutions that they wish to keep private.
Mediators may encourage brainstorming first in caucus sessions and then in joint session to gain the trust of the parties and reduce the risk that an idea advanced in the mediation could be viewed as biased.
Need for negotiation coaching
Mediators commonly engage in negotiation coaching because disparities in negotiating skill and mediation experience can create an unlevel playing field.
Negotiation coaching may encourage parties to explore each side’s interests instead of focusing solely on positions, help parties generate options, and decide offers and counteroffers.
Coaching is impossible in joint sessions because it could give the appearance of partiality, and because the parties are rarely truthful about their bargaining strategies.
Need for process management
Caucus sessions may be required if there is a party displaying disruptive behaviour. Joint sessions may be harder to manage in some circumstances.
If a party, or party’s lawyer, cannot pick up on social cues and is unable to control the impulse to talk throughout the mediation, a skilled mediator may decide to separate the parties to create some time and structure to the mediation.
Internal conflicts
Parties often need internal mediation within their own team. A party, and his or her lawyer, may have differing ideas about the best negotiation strategy. There may also be an uneasy alliance or a difference in dynamics within a group.
Parties can be transparent about internal disagreements in caucus sessions and then achieve unity in joint sessions. Separate meetings may also be needed to determine whether there is a potential conflict of interest.
Fear of losing face
In commercial disputes, some executives or employees may have similar interests with respect to outside constituencies (shareholders, suppliers, and customers) and with internal constituencies (company’s officers, employees and board of directors). They may be motivated to avoid letting them believe that they gave up or left money on the table.
An effective mediator can help maximise everyone’s interests. Often, the most successful way to assist the parties to reach a resolution and save face in a negotiation is for the final proposal to come from the mediator.
In a “mediator’s proposal” procedure, the parties are less likely to dismiss a proposal and the mediator can discuss the proposal confidentially with the parties. Even when a mediator’s proposal is not accepted by a party, these separate conversations can often lead the way to resolution.
Conclusion
Mediation caucusing adds value to mediation by overcoming various tactical and strategic barriers and impediments to settlement. Although the no-caucus model may be appropriate for certain types of mediation (and preferred by some mediators), often parties prefer the efficiency that can be achieved with caucusing. Numerous variations and hybrid mediation formats may also be useful.
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 that 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 can help parties decide whether the parties’ objectives would be best served using joint sessions, caucusing, or a combination of these approaches. 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.
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 the situation here.
Many mediators believe that the most serious challenge facing commercial mediation is poor public and professional awareness of the mediation process. This is a major obstacle to the potential users of mediation attempting to resolve commercial disputes using the mediation process.
Financial and time constraints are also commonly identified as other challenges in dispute resolution.
This article explores who uses mediation and the benefits of mediation.
Users of mediation
The users are the most important people in mediation, and everything revolves around them. Mediation helps the users to resolve disputes. The mediator’s aim is to empower the users and their representatives’ aim is to advocate for them.
The greatest demand for commercial mediation comes from the building/construction, insurance and property disputes, as well as contract disputes in general.
Benefits of mediation
The parties involved in commercial disputes often choose mediation because of its benefits compared to litigation, including:
low costs;
speed and efficiency;
certainty and control of outcome;
confidentiality;
flexibility;
preservation of relationships;
ability to get advice about alternatives, risks, and consequences.
Mediation is also generally much cheaper than other third-party alternatives.
The users to mediation may have different priorities depending on the specific area. At Norling Law, we can assist users achieve their priorities throughout the mediation process. We can assist users both as mediators and representatives.
Many parties are happy with using mediation as a dispute resolution process because of its benefits (outlined above). Accordingly, mediation should be included as an advised option for resolving disputes more regularly. All lawyers have a positive obligation under r 13.4 of the Conduct and Client Care Rules to 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.
How can you find out more?
At Norling Law, we are passionate about solving commercial disputes and legal issues.
Norling Law offers 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 that 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 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 the situation here.
Our mediator, Wendy Alexander, regularly assists with the facilitation of settlements through online mediation.
A variety of disputes could be suitable for online mediation. Especially if the parties to the dispute want a negotiated outcome that remains private and confidential and that puts a prompt end to the costs of having the dispute ongoing.
Commercial lease disputes can often be suitable for online mediation.
At Norling Law, we receive a large amount of commercial lease disputes arising from the Covid-19 lockdowns.
Disputes between commercial landlords and tenants can be extremely stressful during the periods of COVID-19 lockdowns. Both parties are usually under financial pressure. The parties may have been negotiating directly in an attempt to reach a solution that would meet the interests of both parties. However, the parties often find it difficult to reach agreement on what is a fair proportion of rent and outgoings for lockdown periods.
Using online mediation is an option that could potentially resolve commercial lease problems quickly and efficiently. Online mediation is a low-cost option to consider before deciding on whether to proceed to terminate the lease and/or litigate. Cancelling a lease is a serious step to take and may result in severe consequences if not managed properly. Traditional mediation is usually a more expensive process as it involves the parties meeting physically and there are resulting costs involved with travel and booking a neutral meeting room (or rooms). Sometimes, due to COVID-19 travel/meeting restrictions, traditional mediation might not be available at all for urgent matters.
What happens during online mediation?
Mediation is a form of negotiation where an independent and neutral person assists the parties to negotiate. Best described as a private facilitated negotiation. The primary objectives of mediation are to enable and empower the parties to negotiate and resolve the dispute promptly, cost effectively, and confidentially, rather than have a decision imposed upon them by a judge or an arbitrator.
Online mediation is a mediation conducted remotely, using online communication platforms such as Skype, Zoom and emails, or through phone. Unlike traditional mediation, the parties and the mediator do not actually meet in a physical sense.
Online mediation is generally more cost efficient and flexible than traditional mediation. The parties could appear through video from different geographic areas and reduce their travel costs. There is no need to hire a venue for mediation. Online mediation needs a strong Wi-Fi link and a willingness to negotiate.
Mediation can also be conducted in parts where the mediation can be paused for several hours or days while the parties consider their options. This can be useful when there are a number of issues to be considered. Wendy believes a mediation conducted over time could often lead to a better settlement for the parties.
Further, during the current COVID-19 environment when travel restrictions are a common occurrence, online mediation could be the only available method of mediation for some parties.
Online mediation is also a real option for parties whose conflict is so strong they cannot stand to be in the same room.[1]
Fundamentally, the process of online mediation is similar to traditional mediation, however, there are inherent technical differences. Below, we illustrate the process employed by Wendy while conducting online mediation.
Engagement
An agreement to mediate is circulated to the parties with a clear explanation of Wendy’s professional obligations. Amongst other terms, the parties agree to adhere to the confidential process of an online mediation.
Once the parties understand and agree to all terms of the agreement, the mediation process can commence.
Individual meetings
First, Wendy meets with each party individually online (no more than 30 minutes). Together, they explore the issues confidentially. This part of the process is incredibly important. It establishes trust with the mediator and a clear understanding of the issues and interests of each party.
A skilled mediator can lower the emotional temperature in a negotiation to foster more effective communication. This is done by gaining the trust of both parties that the mediator is a neutral party who is there to serve both parties equally. According to a survey by Northwestern University law professor Stephen Goldberg, veteran mediators believe that establishing rapport is more important to effective online mediation than employing specific mediation techniques and tactics. Before people are willing to settle, they must feel that their interests are truly understood. 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.
The individual meeting is also a great opportunity for the mediator to reiterate the professional obligations a mediator has. Fundamentally, to always remain neutral and keep all information shared confidential (until express consent is given to share information).
Joint discussion
Then, a joint discussion is scheduled where the parties explain to each other directly their objectives. They clearly explain to each other, in Wendy’s calming presence, what they were aiming to achieve in this negotiation.
In most cases, neither party to a commercial lease want the lease to end – the landlord needs to retain the tenant and get paid, and the tenant needs the premises so they could continue trading. However, both parties want the rent and outgoings to be paid fairly.
Successful Outcome
If the parties are invested in finding a solution (together with a facilitation from Wendy), it is usually all that is needed to end a costly negotiation quickly. The terms of the agreement reached are recorded in a formal deed of settlement.
Importantly, the parties can achieve a resolution quickly and cost efficiently. Both parties are then able to move forward and focus on running their businesses.
Online mediation is a dispute resolution process that could help to avoid hefty costs, uncertainty as to outcome, delays and significant stress.
Online mediation does have its limitations, in comparison with traditional mediation. As such, it is important to first ascertain with the proposed mediator whether online mediation is the best way for resolving your particular dispute.
Wendy has extensive experience as a mediator, including mediations conducted online.
If Wendy’s expertise can be of assistance, the first step is to send us the details of the situation here.
Footnotes:
[1] Jennifer Parlamis, Noam Ebner, and Lorianne Mitchell in a chapter in the book Advancing Workplace Mediation Through Integration of Theory and Practice.
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.
There are various options available for resolving commercial disputes. Often, some of them could lead to hefty costs, uncertainty as to outcome, delays and significant stress.
Mediation is a dispute resolution process that could help to avoid these costs and achieve a prompt resolution. Mediation should always be considered by parties when seeking to resolve a dispute, and where suitable, encouraged by their legal advisors.
Mediation is a form of negotiation where an independent person, a mediator, helps parties to define issues, negotiate and resolve disputes using an established process in a confidential environment. Mediation provides the parties with the opportunity to negotiate flexible and creative solutions, which are often not available in litigation. A skilled mediator assists the parties to develop and explore settlement options and negotiate a mutually acceptable settlement which meets the interests and needs of all parties.
The primary objectives of mediation are to enable and empower the parties to negotiate and resolve the dispute promptly, cost effectively, and confidentially, rather than have a decision imposed upon them by a judge or an arbitrator.
Norling Law supports mediation as an efficient way of solving legal issues, and where suitable, encourages the use of mediation to its clients.
Norling Law also offers an independent and impartial mediation service to non-clients in a dispute.
What happens in a mediation?
There are usually six phases in a mediation process. At Norling Law, we endorse the following:
Phase 1 – Planning and pre-mediation conference
At a pre-mediation conference, the issues are discussed to ensure mediation is the appropriate process for the nature of the dispute. The roles and responsibilities of the mediator and the parties involved are clarified. It is also explored if further exchange of documents or other steps need to be undertaken prior to mediation, in which case, such steps and deadlines for them can be discussed and agreed upon.
Phase 2 – Mediator’s introduction
At the start of the mediation, the mediator introduces the participants, explains the mediation process, and explains (and seeks agreement to) ground rules. The mediator then presents the goal of the mediation process: to help the parties come to a negotiated agreement on the situation before them.
Phase 3 – Opening remarks – defining the problem
Each party has the opportunity to express fully their perspective on the legal, commercial, and personal issues involved, without interruption. The mediator then explores and defines the issues and seeks agreement from the participants that these are the issues they would like to discuss.
Phase 4 – Understanding law and interests
The parties, with the assistance of their lawyers, explore and understand the legal risks and opportunities. The mediator then assists the parties to explore the legal, commercial, and personal interests in resolving the dispute (i.e. they explore what really matters to the parties).
Phase 5 – Generating options, exploring interests and packages
The parties have full control in generating options for settlement (with guidance from their legal representatives). The options are then discussed, evaluated and prioritised to develop suitable packages for resolution.
Phase 6 – Concluding and looking to the future
The parties review, refine and improve upon the preferred agreement package. Then, the mediated agreement is drafted and executed (with guidance from their legal representatives).
Does mediation work?
In 2015, research examined the nature of commercial mediation in New Zealand by conducting a survey amongst local commercial mediators. Over half of the mediators surveyed, reported a 90 – 100% settlement rate, and none reported a settlement rate of less than 70%.[2]
This research also revealed that 62% of the participants in mediation saw the price of mediation as the major drawcard, as it is significantly cheaper than litigation. Mediation’s speed and efficiency, compared with the often-lengthy litigation process, was the second most common response. Confidentiality provides an element of privacy that litigation does not, and it was identified as the third most common influence on parties when choosing to mediate. It is possible the commercial mediators who participated in this research, echoed the reasons they have been given first-hand from their parties, and that cost is the biggest reason that parties pursue mediation.[3]
In summary, parties undertaking mediation are mainly driven by a desire to avoid the price, time and publicity that comes with undertaking court action.
There are limited disputes that are not suitable for mediation. The parties’ legal advisors would be able to identify such disputes and inform the parties from the outset, to avoid incurrence of unnecessary costs.
How can you find out more?
Our expert mediator, Wendy, assists parties to navigate through the issues and find creative and profitable solutions.
Our office is located on the North Shore in Auckland, New Zealand, or can have the consultation by phone.
Footnotes:
[1] Grant Morris and Daniella Schroder “LEADR/Victoria University Commercial Mediation in New Zealand Project Report (June 2015)” (Research Paper, Victoria University of Wellington, 2015).
