Last year I recorded a podcast for the Foley’s list CPD Podcasts series on best practice in conducting, negotiating and representing a client at a mediation. The podcast was based on a presentation Michelle Button, also of our list, and I presented to the Geelong Lawyers Association.
The podcast is worth listening to for ideas on effective mediation and can be found here: https://foleys.com.au/ResourceDetails.aspx?rid=545&cid=63
Michelle and I discuss how to improve the use of the current tools available in mediation practise. We discuss the benefits of conducting open, client led sessions and the importance of active listening as a skill in mediation.
The Powerpoint for the presentation is also available here:
Some of the key points covered:
- Mediation is not bound by the subject matter of litigation, unlike a trial: consider using outside issues of concern to the parties, eg future opportunities, to lever a settlement
- Make position papers effective – find key points on which the negotiation swings and emphasise risk. Don’t simply repeat the pleaded issues.
- Know your alternatives to settlement and be able to identify those of the other parties.
- Improving open sessions – getting parties to relax, understanding the inherent tension from the nerves of the clients, displaying empathy, reading body language, exploring alternatives: non monetary levers: face saving measures, confidentiality, timing
- Active listening – by all participants
- Anchoring the negotiations – putting the first realistic offer close to where you want to finish
- Prepare terms of settlement in advance, avoid length, keep it simple
- Consider putting terms into discussion early in the day, with say a first realistic offer that might settle the case: it’s a tempting bait.
Cheers
Mark
Mark McKillop Barrister 
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