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6.

1 FAQ - FREQUENTLY ASKED QUESTIONS ABOUT MEDIATION

By David E Hollands - mediator, facilitator, arbitrator, Auckland, New


Zealand. As independent neutral, he facilitates the resolution of
construction and commercial disputes.

The following questions are addressed here (below on this page):

 What is mediation?
 What’s the difference between mediation and arbitration or litigation?
 What are the typical steps in a mediation?
 How do we get started? (amended 16 October 2000)
 What happens at a mediation meeting?
 Do I need a lawyer?
 Who should attend meetings?
 How can I prepare for the mediation? (new 16 October 2000)
 What type of venue is needed for the mediation meetings?
 Who pays for the mediation?
 What about confidentiality?
 What does the mediator do?
 Should the mediator use his or her expertise in the substance of the
dispute?
 What form does the outcome of a mediation take?
 When is the mediation finished?
 What if agreement is not reached in mediation?
 Further information

What is mediation?
Mediation is a well-accepted process for improving relationships and resolving
disputes.
It is a consensual process in which an independent and impartial person, the
mediator, works with disputing parties to help them explore and, if appropriate,
reach a mutually-acceptable resolution of some or all of the issues in dispute. The
mediator has no decision-making authority regarding the outcome, and should
not try to impose a settlement.
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What’s the difference between mediation and arbitration or


litigation?
In mediation, neither the parties nor the mediator are limited by what is legally
"right" or any rules of procedure. The procedure is informal and the parties are
free to accept or reject any terms of settlement suggested during the mediation.
The parties determine their own outcome.
By contrast, arbitrators and courts are obliged to decide a dispute according to
the law and rules of evidence and procedure, and the parties are legally bound by
an arbitrator’s award or a judgement of the court. The parties have no control
over the outcome.
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What are the typical steps in a mediation?


A variety of procedures are available and any one of them or a combination of
several may be adopted. For example, the steps may include:

 a preliminary meeting (or telephone discussion) to discuss whether


mediation would be helpful in the circumstances, and, if so, to agree
procedures
 written submissions on the key issues and facts, exchanged prior to the
mediation meeting
 one or more mediation meetings, of the parties with the mediator
 an oral presentation by each party at the mediation meeting
 listening and talking to each other, sharing information, and considering
each other's perspectives
 reviewing the facts and issues involved
 exchanging views and/or proposals
 separate meetings between the mediator and each party (ie private
caucus)
 obtaining (or where appropriate having the mediator give, either in private
caucus or in open meeting) expert opinion on the contentions and
proposals of each party
 developing and agreeing to a voluntary and informed outcome.

The aim of these procedures is for the mediator to help the parties to improve
their interaction and, if appropriate, to reach agreement on some or all of the
issues in dispute.
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How do we get started?


Either party can suggest to the other party that a dispute be referred to mediation.
If the other party agrees, the dispute can then be referred to mediation without
further ado.
The next step is to choose a mediator. The mediator must be acceptable to the
parties, have credibility with them, and have their trust to participate actively in
resolving their dispute. To consider who might be suitable, you may obtain the
Panel of Mediators list from the Arbitrators and Mediators Institute of New
Zealand, PO Box 1477, Wellington.
In my case, all that is required is for the parties to obtain a copy of my Standard
Terms of Engagement as Mediator (from this website, or from me direct), fill in
the required information and send all pages to me to seek my agreement to being
involved as mediator. After that, I contact them and make the necessary
arrangements.
Security deposits will be requested to cover my fees and expenses. I don’t issue
invoices for the deposits unless so requested. On completion, I account for my
time and expenses and the deposits in a GST invoice.
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What happens at a mediation meeting?


The mediator and the parties agree among themselves on arrangements for the
date, place and time of mediation meetings.
There is no set procedure for conducting the meetings. The mediator has wide
freedom to develop and facilitate a process which is appropriate to the specific
circumstances of the dispute and needs of the parties. The process is informal,
but should still be understood and agreed to by the parties.
The face-to-face meeting of the parties is important. It provides an opportunity to
listen and talk with each other, share information, consider each other's
perspectives, and make voluntary decisions, with the help of an impartial
mediator. It can help to defuse personal antagonism and promote the
communication and understanding which will achieve settlement.
As well as joint sessions with the mediator and all the parties, there may also be
separate sessions between the mediator and one or more of the parties. The
objective is to narrow and resolve the issues that separate the parties.
The mediator chairs and facilitates the meetings. It is usual to start with each
party explaining their issues. Fact finding will follow, and this may involve hearing
from others, about facts or expert opinion. Free discussion will usually follow, as
the information is clarified and understood. This leads to identifying and
evaluating options, from which the parties can bargain and finally agree on a
mutually-acceptable outcome.
Where the issues are complex, further information is being gathered, or others
need to be consulted, a series of meetings may be needed.
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Do I need a lawyer?
Actually you do not need a lawyer in mediation, even if the other side has one.
However, I strongly advise you to get legal advice before the mediation. Also, I
encourage you to bring your lawyer to the mediation meeting. In my experience
lawyers are always helpful in explaining the legal issues, providing input on legal
rights, and checking the outcome agreement.
However, since mediation is not an adversarial process, the lawyer is not
involved as advocate. Other issues (ie other than legal issues) may need to be
discussed and incorporated into the outcome. Also, the outcome does not have
to be legally "right". You need to make your own decision, by considering the
various issues and risks, and agreeing to an outcome which is better that you can
otherwise be sure of achieving. A lawyer will help you do this, as your adviser.
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Who should attend meetings?


Mediation meetings are usually private. Only the parties and/or their nominated
representatives attend the meetings with the mediator.
Other persons may only attend with the consent of all parties. Consent would
normally be given to advisers, such as legal, managerial, technical and resource
persons. Please ask about this prior to the meeting.
Each party should be present personally, and be ready to make a binding
agreement. In the case of a corporate party, there should be a management-level
representative, who should have authority to agree to a settlement.
There may be situations where the representative has no choice but to refer back
to a governing body before giving final approval. However, this possibility should
be discouraged, as it is difficult for those who have not been present throughout
to fully understand what has been explored and developed during the mediation.
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How can I prepare for the mediation?


This will depend on the nature of the dispute, the type of parties, whether lawyers
and technical experts are involved, the extent to which information has already
been exchanged, etc. Here are some factors you might wish to consider:
It will usually be helpful for each party to prepare a brief and informal summary of
its understanding of the dispute. This will include the key background facts, the
issues in dispute, and the remedy that is being sought. Any key documents
should be referred to, and may be attached to the summary. In some cases, it
may be helpful to attach the report of a technical expert or the opinion of a legal
adviser. However, it is not necessary to prepare pleadings or formal statements
of evidence. You may find it helpful for your lawyer to prepare this material, which
is usually exchanged between the parties and provided to the mediator prior to
the mediation meeting.
Regardless of whether or not written summaries and documentation are used,
you will need to plan an oral presentation for the mediation meeting. Your
challenge is to consider how to present your concerns and needs in a concise
and helpful way, so as to set the scene for the mediation. Consider summaries,
charts or other visual aids in your presentation. Plan to speak for 15-30 minutes,
or more according to the circumstances. A trial run of your presentation, including
to someone not directly involved, will help you get feedback on the timing, clarity
and effect of your presentation.
Take some time to study what is involved in mediation, by reviewing this FAQ and
the further information at its end. If you are still unsure on some point of
preparation or procedure, you can telephone the mediator.
As well as the perceived rights and wrongs of any claims, think broadly about the
issues involved. What is the problem and what do you want to achieve? For
example, think about:

 what do you really want?


 what would this do for you?
 what are the underlying needs you need to satisfy?
 how can you explain these to others, in terms of your criteria for any
outcome?

It may help to write yourself some notes about these thoughts.


On the day of a meeting, be sure to allocate sufficient time. Put aside other
worries and plans. Arrive early. Turn off your cellphone. Smile, and notice how
you are feeling positive and ready to play a constructive role.
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What type of venue is needed for the mediation meetings?


We can work in any available space, but my preference is for the venue to be a
carpeted room, big enough that those present will not feel crowded, and with
plenty of free-standing tables and chairs. The tables are arranged to form a V- or
U-shape, so the parties can face each other and the front of the room.
Behind my table, I like to use a white board, preferably the larger-size mobile
type, with a vertical face big enough to attach two sheets of flip sheet paper side-
by-side. I fix sheets of paper onto the whiteboard and walls with blue-tak. Hence it
is essential that there is adequate wall space and that fixing with spots of blue-tak
is acceptable. I bring my own marker pens and blue-tak. If the meeting is local, I
also bring the flip-sheet paper. If it is out-of-town, I ask one of the parties to get
and bring two pads of white paper (about 600 x 800 mm) for my use. The use of
paper is usually important, to create a group memory and to get the problem "out
there" where it can be worked on constructively.
It’s good to have tea/coffee/juice/water available throughout. At least it should be
available at morning and afternoon tea times. It’s nice if the venue can also
provide a light lunch, so we can share it together. We also need the use of a
second room, where parties can talk privately amongst themselves or with me.
Both rooms will be non-smoking throughout the mediation process.
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Who pays for the mediation?


It is usual for the costs of the mediation to be shared. Hence, the parties bear
their own costs of the mediation. The expenses of any persons attending to
provide factual information or expert opinion can be shared by agreement, but
would otherwise be paid for by the party requiring their attendance.
The mediator's fees and expenses, and all other expenses of the mediation
meetings, are usually paid equally by the parties.
However, the parties can agree otherwise. For example, the initiator of a
mediation may feel that the only way to bring the other party into the process is to
offer to pay more than half of the costs. Such an initiative can be cost effective if it
resolves the dispute.
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What about confidentiality?


Mediation is usually a private procedure. The parties should not discuss it with
the media or others who are not involved in the process.
Mediation is also intended to be "without prejudice", which means it is confidential
and may not be referred to in any subsequent arbitration or court proceedings.
The parties are required to maintain that confidentiality and may not (without the
consent of the other parties) rely on or introduce as evidence in any other
proceedings:

 documents prepared for the mediation


 admissions made by a party during the mediation
 views expressed or suggestions made by a party on a possible settlement
of the dispute
 views expressed by the mediator

The general law may extend a duty of confidentiality on others attending the
mediation. To put this beyond doubt, the parties may wish to have any
managerial, technical or other resource people involved sign a memorandum of
confidentiality.
At a separate meeting with a party (called a "caucus"), the mediator may also
hear information which is to be kept confidential from other parties.
Information must not be divulged by the mediator. However, the mediator should
not keep confidential any knowledge of a serious crime to be committed or of a
physical danger to any person (this is a general principle of law, and not
something dependent on the agreement of the parties).
It should be realised however that, whilst information disclosed at the mediation is
itself confidential, it may still put the other party on alert as to additional evidence
it might seek for any subsequent adversarial hearing.
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What does the mediator do?


The mediator facilitates communication between the parties and helps them to
resolve their dispute. A list of the mediator’s possible tasks might include:

 educate the parties on the process and procedures involved


 assist with setting up protocols and with the convening, agenda setting,
logistics and moderating of meetings
 bring about a change in the behaviour of the parties, merely by being
involved and present at meetings
 assist in bringing any reluctant parties into the negotiations
 encourage and facilitate effective face-to-face communication, interaction
and mutual understanding between the parties themselves (i.e. not just
between their hired advocates, or legal or technical advisers)
 keep discussions going, without jeopardising either party's basic
bargaining position
 accumulate information from each party in a balanced way
 probe to uncover additional facts
 administer any joint fact-finding studies
 provide analytical and problem-solving skills that are not available
 attempt to clarify information and interpretation, and encourage co-
ordination between the parties
 provide the opportunity for each party to state its case, to the other party
and to the mediator, with an assurance of confidentiality
 assist each party to identify its real interests and concerns and to review
unrealistic expectations
 create a positive tone and maintain a discernible progress of the process
 communicate interests, concerns and proposals in understandable or more
palatable terms
 have each party better understand the other party's views and evaluation
of a particular issue, without violating any confidences
 suggest, clarify, interpret, reason, persuade and inform the parties about
their dispute and its resolution
 offer an impartial appraisal of each party's case (if so requested)
 reduce the number of decisions to be made, and make the decisions
easier to make
 put forward options that a party wants considered, but does not wish to
suggest
 open discussions into areas not previously considered or inadequately
developed
 help the parties to analyse their joint problem, narrow the issues, and
develop objective criteria
 allow a party to retreat gracefully from a previously-stated position
 maintain each party's self-respect and satisfaction with the process
 help the parties to devise creative alternative outcomes, and negotiate
their own mutually-acceptable settlement
 assist in checking that any proposed settlement meets the important
interests and concerns of each party
 structure and prepare the preliminary draft of a settlement agreement
 assist with any future re-negotiation required, to deal with mistakes,
unexpected changes or new factors

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Should the mediator use his or her expertise in the substance of


the dispute?
This is a difficult question, on which different views are held for valid reasons. A
mediator’s primary skill is in facilitating a process to assist parties to resolve their
dispute. However, the mediator is often chosen because of his or her knowledge
about the issues in dispute; eg a construction mediator is likely to have some
knowledge of construction practice and law. Why, when and how might a
mediator provide comment on the substance of the dispute; eg the likely outcome
if it proceeded to arbitration?
On this topic, the Arbitrators & Mediators Institute of New Zealand’s Guide to
Mediation says:
"It is generally preferable that the mediator does not offer the parties an
assessment of the perceived legal merits of any issue. It is often more
effective for the mediator to question the strengths and weaknesses of
their cases to each party separately, at private meetings, and encourage
them to reach settlement.
The mediator may, with the consent of the parties, give a preliminary
opinion on the perceived merits of some or all of the issues. However, any
opinion of the mediator should not be in writing unless this is what the
parties have specifically asked for. The reason is that parties may not wish
anything to be put in writing in case it is premature, misused outside the
mediation meetings, or removes control of the dispute from the parties.
Even after providing a preliminary opinion, the mediator should still
encourage and provide opportunities for the parties to continue their
discussions, and reach their own agreement (which need not be based on
the perceived legal merits)."
Disputes involve issues of relationships, interests, rights and power. Legal
processes deal with rights, and to some extent power. Mediation can deal with all
four, including relationships and interests. Any expertise of the mediator on the
substance of the dispute is mainly relevant to issues of rights.
There are disadvantages in having the mediator involved in considering the
substance of the dispute. Evaluating how the issues might be decided in
arbitration or court proceedings can distract the mediator from managing the
mediation process, dis-empower the parties, and affect the perceived neutrality of
the mediator.
The mediator's prime responsibility is to help the parties to improve the way they
interact and solve mutual problems. Also, prior to looking at rights, it is important
to flush out interests, seek common understandings of background facts, and
explore options for resolving the dispute. Hence, the right time for any use of the
mediator’s expertise is usually later, rather than earlier in the process.
Should the mediator offer any opinions on substance only in caucus, or in joint
session? If in caucus, should it only be on that party’s weaknesses, to avoid
polarising the positions of the parties? Or should all parties know what the
mediator has to say - by making any comments openly to all parties?
Should comments be off-the-cuff, or carefully reasoned? Should they be oral, or
expressed writing (maybe after receiving submissions), and/or be in draft form to
allow further submissions? How will the comments be used in the process?
Should an outside expert be used to provide any assessments, to avoid
compromising the role of mediator? Should any opinions, whether from the
mediator or another, be subject to review? Should such inputs on specific issues
ever be made binding (ie through being made the decision of an arbitrator or
judge), before the mediation continues?
There are no standard answers to any of these questions. The AMINZ Guide
provides a helpful starting point, but the mediator should still consider the
dynamics of the particular mediation. He or she should openly discuss the
process options with the parties and be guided by their wishes. Maybe the
mediator was engaged with the expectation that his or her expertise on
substance would be used by them, to help them to develop and reach an
agreement that would be acceptable to them and be able to be explained within
their organisations.
Maybe the options never occurred to the parties, and their expectations might
change if they were explained. It is important to be flexible and have a tool kit that
helps the parties resolve their dispute in efficient, non-coercive, satisfactory and
mutually acceptable ways.
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What form does the outcome of a mediation take?


So as to avoid future misunderstandings, the parties should sign a written
agreement which sets out the outcome of the mediation.
During the mediation, a draft outcome (settlement) agreement can be used to
clarify what needs to be resolved and to narrow the issues in dispute. The
mediator, with the help of the parties, may progressively draft and edit the
required terms. The parties may have the proposed outcome agreement
independently reviewed by their legal advisers (who may or may not be present).
If helping to draft a outcome agreement, the mediator will try to record the facts,
issues and outcomes identified by the parties, rather than be seen as imposing
any opinion as to what the outcome should be. This is important, if the parties are
to "own" the ultimate outcome.
Although mediation is a non-binding process, the outcome agreement may be
binding. To the extent that it fulfils the normal criteria (ie intention to be legally
binding, no vitiating elements, etc), it will be legally enforceable as a contract.
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When is the mediation finished?


The mediation process may be terminated:
 when full or partial resolution of the issues has been reached
 by agreement of the parties
 at the suggestion of the mediator, or
 if a party advises that it is withdrawing from the mediation proceedings
(parties cannot be forced to continue with a mediation against their will).

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What if agreement is not reached in mediation?


Sometimes it is not possible to settle a dispute through mediation. However, the
time and effort put into mediation is still usually found to be useful. For example,
the dispute may be subsequently settled by negotiation, based on relationships
and understandings developed during the mediation. Alternatively, if it proceeds
to arbitration or litigation, the parties and their advisers will be better prepared
and better able (subject to confidentiality) to assist the arbitrator or judge in
defining the issues and achieving an efficient and final decision on the
outstanding issues. Thus, time and cost should be saved anyway.
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Further information is included in:

 Standard terms of engagement as mediator.


 The advantages of introducing a third-party mediator into a conflict.
 Choosing a dispute resolution process.
 Making successful claims.
 Disputes - avoidance and resolution.
 Relationships - working together.

These notes are not intended to be relied upon in lieu of proper legal advice.

David E Hollands - mediator, facilitator, arbitrator


FIPENZ, FAMINZ (Med/Arb), MNZIS

76 Coronation Rd, Glenfield, Auckland 10, New Zealand


e-mail: deh@neutral.co.nz
homepage: http://www.neutral.co.nz

(16 October 2000 - minor amendment re deposits 25 July 2002 - copyright


reserved)
6.2 THE ADVANTAGES OF INTRODUCING A THIRD-PARTY
MEDIATOR INTO A CONFLICT

By David E Hollands - mediator, facilitator, arbitrator, Auckland, New Zealand. As


independent neutral, he facilitates the resolution of construction and commercial
disputes.

Direct negotiation may only continue the fight

It is natural to assume that the parties involved in a dispute should settle their
own conflict - it is their business, their concern, their hassle. But they may be the
least equipped to untangle the hostility, loss of trust, suspicion, secrecy, biased
communications, and position taking involved. The repetition of patterns and
explanations that have become habitual and twisted can render the disputants
impotent.

The parties involved in the conflict are often bogged down into an argumentative
mode of thinking. Even with the best will in the world, they simply cannot carry out
certain thinking, because it would not be consistent with the positions they are
taking in the conflict.

Direct negotiation between disputants without a third party allows the parties to
retain their privacy and independence, but also has serious liabilities. It can
heighten power differences and intensify the confrontation. Any compromise
reached may merely become the basis of future conflicts. Direct negotiation can
continue the fight, extend the coercion, support the manipulation, and merely
make the conflict more covert.

When we are locked into either-or thinking, our logic (no matter how tight and
tidy) has a fundamental limitation. The parties most directly involved in a dispute
are in the worst position, and are the least equipped to settle the dispute
constructively. More effective means of resolution inevitably come from a third
party - an outside mediator who does not think in an either-or manner or apply
conflict to resolve conflict.

Third party intervention offers alternatives and hope

A third party mediator can introduce an intervention to break the negative cycle,
and help the parties improve the quality of their solution.

In traditional societies, mediation of conflicts by trusted persons is the most


frequently-used process of resolving disputes. Rather than being a mark of social
progress, the loss of avenues for dispute negotiation outside the court system
has limited opportunities for maintaining relationships and achieving justice in
modern societies.

A third party mediator can provide the disputants with alternative and additional
information, experience and expertise. Mediation offers alternatives beyond those
the parties can generate themselves. Mediation invites and often ensures full
participation and communication between the parties.

The mediation process and its advantages

Mediation is a consensual process in which an independent and impartial person,


the mediator, works with disputing parties to help them explore and, if
appropriate, reach a mutually acceptable resolution of some or all of the issues in
dispute. The mediator has no decision-making authority regarding the outcome -
the mediator therefore has no power to impose a settlement, and should not seek
to do so.

Mediation differs significantly from arbitration and litigation. In mediation, neither


the parties nor the mediator need to worry about what is legally "right" (ie the
substantive law), or rules of evidence, and the parties are free to accept or reject
terms of settlement suggested during the mediation. By contrast, arbitrators and
courts are obliged to decide the particular dispute referred to them, and cannot
find a solution elsewhere - they are bound to apply the relevant substantive law
and rules of evidence and procedure, and the parties are legally bound by an
arbitrator's award or a judgement of the court.

Mediation allows disputants and their supporters to:

 gain access to a readily available, quick and inexpensive forum


 talk with each other in a way that is comfortable and understandable
 vent anger and frustration in an appropriately open and therapeutic fashion
 equalise power differences and move on from past hurts
 realign their needs and relationships
 look forward, to the future, and maximise opportunities.

The choice of mediation may arise from dissatisfaction with the court system and
its costs, its impersonality, its slowness, its prejudice, etc. Whatever the
motivation, personal involvement in selecting a dispute resolution process and
self-expression throughout will deepen satisfaction and improve the quality and
acceptability of the final outcome.
Mediation is especially appropriate where:

 relationships between the parties are important and continuing


 bad communication and resultant misunderstanding are involved
 confidentiality is important
 the parties need the opportunity to talk openly and frankly
 technical or legal uncertainties are involved
 the parties wish to determine their own outcome
 the parties wish to minimise legal costs and save time
The role of the mediator
A mediator rarely takes a single role, and the strategy frequently changes. The
early stages - establishing an arena, composing the agenda, and establishing
limits - involve the mediator as observer, chairperson and enunciator. The later
stages - narrowing the differences, bargaining, reaffirmation and agreement -
involve the mediator as prompter, leader and solution seeker.
The mediator remains outside the conflict itself, refusing to slip into the role of
advocate. The mediator's role is not to negotiate, but to remove psychological
barriers and enable the parties themselves to negotiate meaningfully.
The mediator maintains a caring neutrality. The commitment is not to a particular
outcome, but to ending the suffering of the parties. Mistrust and suspicion are met
with openness, with befriending of the protagonists, with a suspending of
personal anger and by facilitating them equally as they move towards resolution.
The mediator's role is to guide the process, so that the issues are defined and
relevant information is produced and options are explored without undue delay or
legalistic procedures.
When disputants are hostile or overly emotional, the mediator may need to
address these feelings. When the problem seems intractable, the mediator may
help with its analysis and seek to break any impasse. When the parties make
progress, the mediator builds on it. When the parties are stuck on matters of
principle, the mediator may help to split up or redefine the issues. When the
parties are fixed in positions, the mediator may help to shift their attention to their
respective interests.
The mediator does not have the authority to impose a settlement on the parties,
but will attempt to help them to resolve their dispute in a way which is acceptable
to each of them. When a solution seems feasible to the mediator, but has not
been seen by the parties, the mediator may gently point the way.
Mediators seek to progressively sharpen their basic skills of empathy, active
listening, sensitivity to the needs of parties, sense of timing, verbal and non-
verbal communication skills, capacity to maintain neutrality while remaining in
contact, and ability to understand the stages of negotiation and conflict resolution.

Further information is included in:

 FAQ - frequently asked questions about mediation


 Standard terms of engagement as mediator
 Choosing a dispute resolution process

These notes are not intended to be relied upon in lieu of proper legal advice.

David E Hollands - mediator, facilitator, arbitrator


FIPENZ, FAMINZ (Med/Arb), MNZIS

76 Coronation Rd, Glenfield, Auckland 10, New Zealand


e-mail:deh@neutral.co.nz
homepage: http://www.neutral.co.nz
(posted 1 July 1996 - copyright reserved)