Resolve Kirschner

RESOLVE ADVISORS

CONFLICT MANAGEMENT | STRATEGIES | TRAINING | PROCESS DESIGN | DISPUTE RESOLUTION

Goals If you change the way you look

at things , the things you look at

change.

Goals Choosing a mediator as a client

Choosing a practice as a

mediator

Choosing tools within the

practice.

In the beginning…

there was heaven and earth…

and generic coffee…

It was sad.

What is Mediation?

In the beginning ADR consisted of a number of

processes that could be used on matters the

subject of court proceedings to resolve those

matters. It had the benefit of speed and flexibility.

It lent itself well to a model of ADR assisted by an

ex Judge or a senior counsel.

Example: scheduling errors in the NEM.

What has Mediation become?

It became evident that the skills and tools

were useful for a wider application. The first

extension was within the skill set and existing

cultural milieu of the legal fraternity:

Example: the sale of shares in a high profile business.

There is a partnership dispute that has resulted in a

deadlock at the Board level. The lawyers for one party

have a potential buyer. They don’t want to put this option

on the table without ensuring there is an interest in a sale or the price may go up etc.

• To provide a resource in a settlement conference to

identify deadlocks and try and finesse a solution to them.

• Problem solving mediation

• Transformative mediation (e.g. conferencing)

• Conflict coaching

• Non binding evaluation

• Conflict assessments.

• The next extensions moved beyond the traditional Western

dispute resolution culture.

Each of these interventions looks to replace the dispute

into its context and use that context to assist with the

resolution of the whole issue of which the legal matter is

often but a part.

perception and Law

Perception and Law

Problem solving mediation

• Define the nature of the problem and work on

widening the options to get a more optimal solution.

The legal piece is just one of the strands.

• Example: The role out of software for a local council.

• Example: The local distributor is saying that it did not

receive the ceiling insulation that was sent.

Perception and Law

• Transformative mediation

• Work on the relationships to transform them. The legal piece

and

the problem are just strands.

• Lots of shareholder disputes (Example: Kevin Jacobsen

and Col Joye Dirty Dancing and the Entertainment Centre)

• Lots of workplace (Example: The Office in the NSW TAFE

where there are 5 people on stress leave in a Department

of 18)

Choosing a Mediator

Do we use the Court?

• It’s free

• It’s for the Court

• The process is predetermined

and it doesn’t offer us a bespoke range of

mediation processes.

• Mediators are like artists, they have a signature.

• Mediators are like Counsel, there are many

good people but choice matters.

It is important to be clear about what it is you are

trying to achieve. That will determine the process

refinement and the mediator.

The Mediator

Branding Signature

Branding signature

Things to think about

Choosing a Mediator

Relationship

What expertise would be useful to clean up the mess:

• Legal, Accountancy

• Emotional

• Other. (economics, engineering, group dynamics)

• To what extent must the mediator have these skills, harness them

understand them, challenge them?

Macro Wholefoods: $80million turnover no talking, love affair and a

psychic…;

Failed marriage across cultures with children and extended family

Choosing a Mediator

The relationship is over:

What is the goal:

• Resolve the past

• Enhance the present

• Expand and build capacity

What level of understanding/input do we need from the

mediator if any.

Choosing a Mediator

The relationship is ongoing:

Examples:

- Complaint by office manager 38 weeks pregnant

going on leave for a year and coming back to a

restructured workplace (clean the past)

- Distribution agreement in Aus (enhance it)

- Land Rights with Vic govt by newly established

Traditional Owner group (build capacity)

-Family redistribution of assets and life estate for grandma.

Choosing a Mediator

Things to think about

Choosing a Mediator

Culture

Choosing a Mediator- Culture

• How important is status to the clients on each side?

• Is this a formal/informal setting?

• What are the expectations of the parties with respect to

the mediator(s) personal status.

• What are the expectations of the parties re the mediator

role? (eg:legal/ family disputes)

• To what extent is acceptance of the person important.

• How is the dynamic likely to be affected by the

introduction of the person? (insider/outsider/gender)

Choosing a Mediator

Examples culture and status:

- Mediation between ASIC and an individual.

-European distributor and small rural Australian company

- Discussions between Arabs and Jews about sharing electricity

between two neighbouring towns.

- Boundary dispute between two neighbouring groups of

Aboriginal Australians funded by the Government.

Things to think about

Choosing a Mediator

Communication style

Choosing a Mediator- Comms

What is the communication style of each party?

• Direct/indirect

• High Context / Low Context

• Detailed/ Big Picture

• Technical

Choosing a Mediator

Examples re Communication styles:

- American Navy and Japanese subcontractors on a base in

Okinawa.

- Partnership of an International Law Firm

- American owner and Australian licensee.

- Lawyers and engineers in a scheduling error.

- New Immigrant family from a traditional religious, patriachal

society.

Things to think about

Choosing a Mediator

Costs

Choosing a Mediator- costs

• What is the matter worth in terms of money?

• What are the consequences of it not being resolved (

think publicity, precedent lives)?

• What are the expectations of the parties with respect to

professional service costs (are they paying a large firm,

have they never used professionals before).

• What does cost mean to them ( does expensive = good in

their world)

• Who is paying? ( company, Govt, everyone)

Goals

• Thinking about the kinds of mediators and processes

available.

• Systematically matching process and dispute.

• Using some of the tools and techniques from mediation

more broadly in assisting clients.

The End