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Transformative Mediation Preparation

Transformative Mediation Preparation

How do you prepare differently for a transformative mediation?

 

Transcript

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So I thought about this, Aled, because we talked about this before. I have mediated recently and have a similar case in the past, a partnership dispute. So it’s a typical kind of partnership or family business dispute. So I split it down into the kind of sections of mediation, just to think what would I have done pre-mediation and so on, so we can talk through that.

 

So in a facilitative model in my previous mediation life, if I was looking at the problem- solving approach, I’d probably receive a large bundle of documents from the clients. So that’s the starting point and I’d probably read all of those. So I’d feel that I want to get immersed in the detail of the case. I want to understand it. So that I could be ready to ask some appropriate and interesting questions in the opening session. And I’d probably – I always have as much contact with lawyers and even with parties, that’s always been my style, before the mediation. But I’d probably be discussing with the lawyers how do they want to play the mediation. Who’s going to speak? What kind of things are going to come up?

 

Then probably you’d also get what we’d call a position statement from each party, where they’d outline where they’re at now, what their starting point is, what kind of deals and offers have been made so far. So something that kind of puts their stake in the sand. So that might start with the problem solving.

 

Yeah, it’s about strategy, you know, and it would be much more focused on them than their clients, you see, because often you don’t get the opportunity to speak to the client. The lawyer at that stage is your client and so you’re speaking with them and you’re saying to them, ‘Well, this is a day. How are you going to best use it?’ And so you’re beginning to maybe even coach the lawyers on strategy and the clients aren’t even in that picture. They’re not there. And so who’s controlling the agenda? The mediator and the lawyer.

 

So then transformative, you know, and we’re probably going to cover this later. We’re back to this explanation of: What is my role as a mediator? How do I approach mediation? And can I involve the clients in this conversation at this stage? Because it’s a client-centred process. So even as a facilitative mediator, I’ve always felt uncomfortable about not talking with the clients and I’ve always said to lawyers, ‘Would it be possible for me to talk with your clients?’ Because I think even from a building rapport perspective, it would be much better if they’d had a conversation with me and could ask me any questions. It’s really not so much, then, about reading and receiving papers. I mean, you know, people may feel comfortable in sending you papers, but because you’re going to be focused on the interaction between the parties, not on their problem, you don’t really need to have all of that detail in your head. Of course, you may read some of the papers, but you’re not going to be asking these open questions about the facts and the details.

 

That’s very different from a facilitative approach. And in the past, I remember having at least one mediation where my bundle of papers didn’t arrive and the question was, do we go ahead with mediation or not? And I chose to go ahead even though the papers hadn’t arrived. That was one of the best mediations I’d ever done, because I had no preconceived ideas. I just literally sat there and said, ‘Tell me what this is all about.’ And so that was liberating. The more you get into the details of a mediation, the more you are at risk, I think, of wanting to control it; of seeing things that aren’t there or of seeing things in a different way than other people see them.

About the mediator

Jan Gunn Profile Pic

Known as The Corporate Peacemaker, Jane has been a Commercial Mediator since 1996 and is one of the leading Mediators in the UK. She has mediated a wide variety of disputes including, business, partnership, employment, property and construction, personal injury and clinical negligence, trusts and family disputes. She’s an international speaker and has transferred her mediation skills and knowledge to help organisations reduce the human and f... View Mediator