Mediations are in vogue for dispute resolution in Australia. However, without a disciplined approach their effectiveness in settling disputes can be quite inconsistent. From experience, common problems involve:
- Failure to engage a lawyer who has a thorough understanding of the law and the technical issues involved. Without a lawyer who has a good understanding of the technical aspects of your case, the negotiations risk devolving into frustration and leaving money on the table.
- Legal representatives that just ‘go through the motions’. Almost as bad as a lawyer who attempts to get by on bluff and bluster, is one that can’t adapt to the circumstances and propose creative solutions to get the negotiations past the sticking points.
- Legal representatives who don’t know how to make full use of the mediator. If you don’t engage a lawyer who understands how to use a mediator, you’ll be paying thousands of dollars just for someone to run the offers back and forth, and the negotiations will likely run at snail pace.
How to make the most out of a mediation
(1) Preparation allows the parties to focus on what is most important
A thorough position paper should be prepared by your lawyer for any mediation, and served on the other party in the weeks leading up to the mediation date. A good position paper, served early, will assist the parties to narrow the issues in dispute as far as possible. This will allow the mediation day to be focused on resolving the most contentious issues which most require the intensity, flow and nuance of face-to-face discussions.
(2) Be proactive – chart the course and set the tone
Mediations, as a rule, require a proactive approach. Your lawyer should grab the mediator as soon as possible for a private chat. Your lawyer should explain your expectations to the mediator, emphasise initiative in assisting the parties through the sticking points, flag any concerns, and iron out any procedural issues. If your lawyer doesn’t drive the mediation it may take its own bumbling course.
(3) Relational not adversarial
If the parties unthinkingly take an adversarial approach it will become very difficult to have a productive discussion of the real issues and a genuine attempt to solve them. Unfortunately, this being in the context of a dispute, it is very easy for people to fall into old habits (i.e. lawyers at twelve paces and deny everything). It is good practice for your lawyer to talk with the other side’s lawyer early, before things get started. This is an opportunity to set the tone for a mutually respectful day, and handle any assumptions they may have that could otherwise put them in a less receptive frame of mind.
(4) Mutual problem-solving
Despite all the theatrics that can occur in mediations, the money on the table ultimately reflects each party’s perception of the respective BATNAs (Best Alternative To Negotiated Agreement). At this stage of the dispute resolution process each party is effectively a judge in their own case. So the most effective course is to focus on shifting their perception of what might happen it this matter goes to arbitration or court. This is also a good time to consider non-monetary items of value that might assist in resolving the dispute. In any case, it is important to remember that their client needs to be able to justify their decision to settle to their shareholders, partners, or superiors. All this requires a lawyer who can roll up their sleeves and communicate productively with the other side.
(5) Issue-focused bargaining
Negotiations can sometimes fall into a laborious rally of offers and counter-offers, that don’t appear to bear much reference to the merits of the respective cases. One alternative is to accompany a number of your offers with a breakdown of how it was calculated and some explanatory dot-points. The other side will often reciprocate (eventually) and you’ll often find that you’re only apart on a couple of points. This can be a good way to start bridging the gap if both sides are far apart and neither is addressing why that is. Because of the maths involved, it helps to have a lawyer who can program an Excel sheet to do these calculations quickly.
While there are times when the gloves have to come off, this should be seen as the nuclear option in a mediation. As far as the circumstances permit, it is best to approach the day with a collaborative attitude and see if a win-win solution can still be achieved. All this is helped a great deal by engaging a lawyer who can grasp the technical issues and use creativity to navigate you to a favourable outcome.