TRAINING TO DO WHAT? PROFESSOR TANIA SOURDIN

MONASH UNIVERSITY AUSTRALIAN CENTRE FOR JUSTICE INNOVATION

“GAP BETWEEN THEORY AND PRACTICE” ▪ Are we training people for one activity when they are doing

another?

▪ Why are they doing something else? Laurence Boulle

▪ Research into mediation

▪ Why train?

▪ Market forces

▪ More sophisticated understandings?

▪ What is the norm? Is there one? Should we accept it?

TRAINING MODELS ▪ Coaching consistency

▪ Understandings

▪ Competency assessment

Professional Identity

Solo work

Experience qualified

MAJOR GAP AREAS ▪ Pre mediation

▪ Who speaks and engages?

▪ Giving advice

▪ Use of whiteboards – flip charts

▪ The disappearing joint session

▪ ‘Bullying’ in caucus

▪ Shuttle negotiation

MEDIATION MODEL Intro

Participant comments

Reflection and Summary

Agenda Setting

Discussion and Exploration

Private Meetings

Negotiation

Agreement

Closure

RESEARCH FINDINGS? ▪ Pre mediation

▪ Supreme and County Court Study - In only 34% of cases was an intake session held. Pre-mediation sessions were held in 15% of cases in the matters where surveys were returned. The most commonly reported reason for not holding a pre-mediation session was that it was “not necessary” (54%).

▪ It is probable that many mediators who are involved in this type of court-related mediation either do not consider that intake is important or may consider that party representatives will prepare their own clients or only raise an intake issue with the mediator if it is significant.

▪ There may also be concerns about the cost of intake processes and a “culture” of “no intake” may operate in this particular court-related mediation environment.

▪ The research finding that less than half the mediators surveyed conducted an intake or pre-mediation session is of interest because pre-mediation processes may play a significant role in clarifying and exploring parties’ process expectations and may also have an impact on outcomes.

ENGAGEMENT WITH DISPUTANTS ▪ Supreme and County Court Study - In 88% of the mediations,

the legal representatives made the opening statements and in only 12% of mediations, both the legal representatives and parties made the opening comments.

▪ Who talks? Who engages?

THE NITTY GRITTY

▪ Jurisdictional differences –

▪ “I did my training at a course run by ……{in the 90’s}. I like to think that I am reasonably hard-working in trying to get to the 'what's really going on' question for clients, but the 'put them together and let them have their say' model terrifies me.

▪ I share some of your cyncicism about the x model' although I think the real problem is that many lawyer mediators are lazy. Even I feel myself slipping with the model I was taught - I know I don’t spend enough time in the early stages allowing people to set the agenda and reflecting the issues.”

ADVICE GIVING OR FACILITATION? ▪ In the Supreme and County Court sample, seven of the 20

surveyed mediators (35%) expressed views to the parties regarding what they considered would be the likely outcome if the matter was litigated.

▪ Ask don’t tell training.

▪ Compliance with outcomes?

▪ Ownership?

▪ Interest based option development

PERCEPTIONS OF FAIRNESS Process perception variables Mediation connected to

Supreme and County Courts of

Victoria

n=37-38

NSW Settlement Scheme

Mediation

n=60-61

CAV

n=50-52

FICS

n=91-93

Agree Agree Agree Agree

%

% % %

I was able to participate during the process 86.5

96.7 64.0* 38.5**

I had control during the process 48.6

90.2** 53.9 21.5**

I felt comfortable during the process 52.6

88.3** N/A N/A

There was enough time to present/discuss all

necessary information

45.9 N/A N/A N/A

I would have liked to participate more during the

process

59.5 N/A N/A 72.5

VISUAL AIDS ▪ In the Supreme and County Courts of Victoria study, 91% of

mediators did not use any visual aids, such as a whiteboard or butcher’s paper.

▪ However, in 32% of mediations, mediators reported listing issues/topics/common ground/an agenda – this was usually noted on paper, but not displayed for the parties on a whiteboard or butcher’s paper. It is not clear how most of the surveyed mediators identified the issues that needed to be addressed in the mediation session.

▪ Why – visual aids?

THE DISAPPEARING JOINT MEETING? ▪ However, in almost half of the cases (47%) private meetings

were held immediately following the opening statements.

▪ This early tendency to engage in private meetings is inconsistent with industry models of mediation, which recommend that private sessions be held later in the process after an exploration and discussion of the issues has taken place.

▪ Industry mediation models are particularly focused on the exploration, understanding, or facilitative stage in mediation where parties and their advisers can discuss all interests and ask questions of each other. The mediator’s role in this stage is to facilitate the communication between all the parties and lawyers; it is apparent that this approach was undertaken in only half of the mediations examined.

WHAT NEXT? ▪ Impact? Less agreement? Dissatisfaction

▪ Greater clarity?

▪ What about flexibility – Make the best decisions? Nordstrum

▪ Personal attributes? Likeable, patient, analytical, honest, engaged, inquisitive? Core values?

▪ Trust in the brand – is there a crisis? Promoting excellence.

▪ Skills and capabilities for the next decade.

▪ Creating a new culture – what is our customer experience like?