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Flashcards in Week Five Deck (25):
1

mediation

- Mediation is a process that promotes the self-determination of participants and in which participants, with the support of a mediator:
○ Communicate with each other, exchange information and seek understanding
○ Identify, clarify and explore interests, issues and underlying needs.
○ Consider their alternatives
○ Generate and evaluate options
○ Negotiation with each other
○ Reach and make their own decisions

2

foundations of the mediation process

○ Party self-determination and empowerment
○ Mediator neutrality/impartiality
○ Mutual, relational process
○ Remedial imaginations, tailored outcomes
§ 'remedial imagination' Carrie Menkel-Meadow
○ Interests can be served, positions can be contextualised and broken down.

3

steps of mediation

- Intake
- Mediator's opening
- Parties' statements
- Summaries and common ground
- Agenda
- Exploration
- Private caucus
- Negotiation
- Agreement

4

intake

- Intake process is done by either the mediator or the administrative officer.
- Purpose is to catch the mediator up and also acts as a screening process to ensure that mediation is an available process to the parties.
- Used to
○ Understand the dispute
○ Ensure process is suitable
○ Discussion of costs
○ Reading and signing 'agreement to mediate'.
○ Ensure parties are willing.

5

opening statement

Purpose:
- To explain the process and its objectives
- To clarify the roles of the mediator and the parties
- To clarify the non-adversarial role of lawyers
- To set some guidelines/ground rules for conduct during the process
- Explain process ethics such as the independence of the mediator and confidentiality
○ As far as law allows
- To agree on time frames and any time restraints
- Ensure parties have the authority to settle
- To foreshadow reaching some level of agreement.

6

parties opening statement

- Parties are asked to speak, one at a time about
○ The background of the dispute
○ Their key concerns and issues - what they want to sort out
- Mediator uses questions (open and probing) to elicit the parties underlying interests
- Mediator summarises each party's statement
- The goals is to ensure that each party hears that other party's perspective of the dispute.
- Mediator models effective communication skills.
- After summarising, we are looking for common ground
- Areas of common ground can be identified to build trust and a sense of positive purpose.

7

developing the agenda

- Mediator works out with the parties a list of common issues that will form the structure for the mediation.
- The agenda items are based on interests not positions
- The agenda items are expressed in a way that is neutral and mutual
- Agenda items can be framed in the form of questions or statements.
- Spencer suggests framing the agenda as questions.
- It is recommended to start discussing the easier items on the agenda first.
○ This means that the parties will build momentum and agree on items at first.

8

exploration and problem solving

- Mediator engages parties in constructive communication of the issues on the agenda.
- Option generation
○ Development and exploration of options
○ Evaluation and selection of options
- Bargaining and negotiation

9

private caucus

- Can occur at any time after the agenda has been agreed upon.
- Useful for exploring interests, hidden agendas, reality checking perspectives, option generating.
- Can also be used to break tension or to give them a break.
- An evaluative mediator will use this step to:
○ Talk to the client about prospects if case proceeds to court
○ Pressure to settle
- Parties might use this step to seek external legal advice.
- These meetings are confidential without the consent of the party.

10

final phase

- Final decision making
- Recording decisions and any agreement
○ Usually written and signed by the parties and lawyers (if present)
○ Lawyers should ensure client understands agreement and implications
- Closing statement by mediator
- Termination of mediation

11

boulle's 4 models of facilitative mediation

- Facilitative
- Settlement
- Evaluative
○ Encouraged to meet settlement based on their legal rights
- Transformative
○ Focuses on the nature of the conflict, focuses on behaviour and relationships
○ Tries to change the quality of the conflict.
○ Best done by psychologists.

12

what role do lawyers play in mediation

- Suitability of mediation
○ Ensure appropriate DR process
○ Advocate for appropriate structure to suit client
- Process advice: steps n DR process
- Content advice: legal advice/will an agreement be binding.
- Preparing/coaching client
○ Coaches client for active role
○ Assist client prepare a opening statement
○ Help articulate needs and interests and bottom line
○ Option generation
○ Attend to any information gathering/documents clients needs
○ Risk assessment: could it be better if we go to court?
§ BATNA
§ WATNA
- Discussing and signing an agreement to mediate.

13

lawyers role IN the mediation

- Supporting a party in their opening statement
- Being a 2nd pair of ears
- Double-checking the agenda
- Assisting in option generation
- In private sessions- assisting with reality checking

14

lawyers role AFTER the mediation

- Lawyer debriefing client
○ Process
○ Content
- Explanation of agreement reached and the legal implications
- Making the agreement legally binding
○ What are the consequences if the agreement is breached?
○ Could to be filed to the court registry.
○ Could be a contract
○ Could be a deed
- Dealing with second thoughts/disillusionment
- Considering next steps if an agreement has not been reached.
○ What are the client's options?

15

neutrality

- Neutrality can be split into 3 concepts
○ Disinterest
○ Independence
○ Impartiality

16

appropriateness

- When will a case not be suitable for mediation?
○ Power imbalances
○ Needs for a 3rd party decision
○ Needs for an enforceable decision
○ Urgency, criminal nature of issues
- Avoid potential pitfalls through:
○ Screening processes
○ Intake
○ Ability to terminate

17

mediator neutrality

- The mediator remains neutral by not giving advice or making a determination.

18

settlement mediation

Settlement mediation – where parties are encouraged to negotiate towards compromise at a central point between the parties’ original demands

Professor Laurence Boulle
2011 (pp 43-48)

19

facilitative mediation

Facilitative mediation – where parties are encouraged to negotiate based on their needs and interests instead of their strict legal rights.
Professor Laurence Boulle (pp 43-48) 2011

20

transformative mediation

transformative mediation – where parties are encouraged to deal with the underlying cause(s) of their problem(s) with a view to repairing their relationship through recognition and empowerment as a basis for resolution

Professor Laurence Boulle , 2011, pp 43-48)

21

evaluative mediation

Evaluative mediation – where parties are encouraged to reach settlement according to their legal rights and entitlements within the anticipated range of court or tribunal remedies or industry outcomes.

Professor Laurence Boulle, 2011, pp 43-48)

22

reality testing

- Reality testing means testing the option for its potential to actually work as a settlement option. In other words, will the option practically work if the parties agree on it?

23

mediation and voluntariness

- Due to current legislation, voluntariness is often not a hallmark anymore. However, parties cannot be forced to reach an agreement, only to participate.

24

advantages to mandatory mediation

• Some are glad to have the court control the procedures.
• Because parties or their lawyers are more accustomed to litigation or processes that are not voluntary.
• Allows for administration on a cost-effective basis.
• Bond for use of DR processes
• Can save money

25

`mediation is inappropriate when

• When the parties are seeking publicity.
• When the parties want to intentionally drag out the dispute (due to lack of funds or sickness)
• They cannot and do not want to participate
• When there is a great power imbalance
○ These imbalances are able to be better controlled in a curial setting.