Experts and Lawyers in Media1on: How they can create with Stephen excep1onal Lancken value for clients With Stephen Lancken

Transcription

1 Experts and Lawyers in Media1on: How they Experts can create and Lawyers excep1onal in Media1on: value for clients How they can create with Stephen excep1onal Lancken value for clients With Stephen Lancken

2 Webinar outline 1. The fundamental purpose/s of mediation. 2. The role of objective criteria. How lawyers and experts contribute. 3. What can be achieved in mediation? 4. Behaviours and approaches. What works and what does not! 5. Role of the mediator 6. Miscellaneous issues

3 Who is listening Poll Question 1 a) Are you (a) A barrister (b) A solicitor (c) An expert (d) Other?

4 Who is listening Poll Question 1 b) Why do you mediate (a) Court order (b) Client requires it (c) It is a good idea why? (d) I don t know

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6 1.The fundamental purpose/s of mediation. Right and Wrong? Interests not rights. The future not the past. Who is the audience? Information exchange. Ideas. Brainstorming. Good decision making. The ultimate decision. Is the settlement that we have negotiated better than the alternative/s. About Fairness. The heuristic challenge. The dilemma of the lawyer and expert.

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8 Who is listening Poll Question 2 Your experience in mediation (a) < 5 mediations (b) 6 to 50 mediations (c) > 50 mediations (d) What is mediation again?

9 Mediation Creating Value Poll Question 3 In your experience how does mediation create value for disputants? (a) Deciding who is right and wrong. (b) Open exchange of information. (c) Understanding of the arguments. (d) Making good decisions. (e) Exploring options for settlement. (f) Scaring the other side into submission.

10 2. The role of objective criteria. How lawyers and experts contribute. What is it worth? Or Why is it worth that? The experts role is it similar to the lawyer? Is there an absolute right or wrong? Why are there differing opinions? Can they both be valid? Being open to persuasion.dangerous or valuable?

11 UNDERSTANDING Poll Question 4 In what circumstances is it useful to understand the other sides arguments? (a) (b) (c) (d) (e) When they have got it wrong Always When your case is weak When your case is strong When you are underprepared

12 3. What can be achieved in mediation? Understanding differences Seeking to understand without agreeing Narrowing of issues Options for resolution Good decisions Reality test BATNA Measure outcomes against BATNA Costs Other

13 4. Behaviours and approaches. What works and what does not! WHAT WORKS Switching from the past to the future Respect Being Strategic Understanding and explaining Being open to persuasion WHAT DOES NOT WORK Reacting Arguing/Rejecting Bullying ABOUT POSITIONS

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15 THE MEDIATOR Poll Question 5 What are the most important mediator trait/s? (a) (b) (c) (d) (e) Patience Interpersonal skills Expert Knowledge Gravitas Ability to manage conversation

16 5. Role of the mediator Process rules Manage conversations Understanding Future focus Difficult relationships/conversations Reframe the problem Reality test positions and BATNA The right conversations Lawyers Experts Parties

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18 BAD BEHAVIOUR Poll Question 6 What is the worst behavior you have seen in a mediation by a mediator or other? (a) (b) (c) (d) (e) Rudeness Aggression Walking out Not listening Arrogance

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20 6. Miscellaneous issues When to mediate Position Papers Choosing a mediator Subject matter expertise Meditation expertise Retired judge/barrister/solicitor or expert mediator Evaluation or mediation Mandatory mediation Costs and expenses

21 When to Mediate Examples Public Liability Dispute Professional Negligence Building Disputes Contractual Disputes Landlord/Tenant Family Law Partnership Disputes Workplace Disputes Proximity of Rela1onship Time Conflict Full Information Trial

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23 Contact Richard Skurnik Sydney Office: Suite 1, Level 20 MLC Centre, Martin Place, Sydney NSW 2000 Australia SYDNEY MELBOURNE BRISBANE PERTH