A Practical Guide - Macmillan Keck

1 Macmillan K ECK. A T T OR N EYS & S OLI C I TOR S. Written by a leading international expert in dispute resolution, Rory Macmillan , A Practical Guide . A Practical Guide for Mediators A Practical Guide for Mediators is a manual on how to become a successful mediator. In its pages, Rory puts you right into the mediator's seat and guides for Mediators you through the entire mediation process. From preparing for the first meeting to helping the parties reach a settlement, he explains your role as the mediator each step of the way. Using real-life examples from his experience, Rory explains why and how mediation works. He also highlights the problems of mediating with difficult Rory Macmillan people and in challenging situations, providing valuable advice on how to overcome them.

2 Taking a broad view of mediation, Rory addresses the wide range of issues a mediator faces, from the emotional to the technical. Emphasizing the value of dealing with the people as well as the problem, he shows you how you can diffuse tensions and create an environment conducive to problem solving. The Practical Guide , commissioned by the Office of the Regulator and funded by the World Bank to assist with the development of mediation in Samoa, also gives pointers on where you can find further resources on mediation, including tips on where to obtain further training and accreditation as a mediator. The author, Rory Macmillan , is a founding partner in the law firm Macmillan Keck Attorneys & Solicitors. He has acted as mediator, negotiator, counsel, arbitrator, expert witness and expert adjudicator in numerous multi-million dollar disputes involving governments, corporations and individuals.

3 Based in Geneva, his practice takes him worldwide. His work in international dispute resolution has been Rory Macmillan recognised by nomination for Europe's prestigious CEDR Award for Excellence in Alternative Dispute Resolution. Front cover photo: Yuri Arcurs/Dreamstime Acknowledgement: The author thanks Eric Lie for his assistance in preparing this Guide . This book first arose out of a passage in Borges, out of the laughter that shattered, as I read the passage, all the familiar landmarks of my thought - our thought, the thought Macmillan K ECK. that bears the stamp of our age and our geography - breaking up all the ordered surfaces A T T OR N EYS & S OLI C I TOR S. and all the planes with which we are accustomed to tame the wild profusion of existing things, and continuing long afterwards to disturb and threaten with collapse our age-old distinction between the Same and the Other.

4 This passage quotes a certain Chinese 72 Boulevard Saint Georges 469 7th Avenue, Suite 419. encyclopaedia' in which it is written that animals are divided into: (a) belonging to the Geneva 1205 Switzerland New York, NY 10018 USA. Emperor, (b) embalmed, (c) tame, (d) sucking pigs, (e) sirens, (f) fabulous, (g) stray dogs, Tel: +41 22 322 2231 Tel: +1 212 359-9599. (h) included in the present classification, (i) frenzied, (j) innumerable, (k) drawn with a very Fax: +41 22 322 2239 Fax: +1 646 349-4989. fine camelhair brush, (l) et cetera, (m) having just broken the water pitcher, (n) that from a long way off look like flies.' In the wonderment of this taxonomy, the thing we apprehend in one great leap, the thing that, by means of the fable, is demonstrated as the exotic charm of another system of thought, is the limitation of our own, the stark impossibility of thinking that.

5 Michel foucault , quoting Jorge Luis Borges in The Order of Things (Les Mots et les Choses), posted in a niche in The Box, a meeting space in Central London designed to inspire creative thinking and dispute resolution. Contents 1. 2. Preparing and Running a 5. 2. Overview of the Mediation 6. 3. Getting Ready: Preparing the Parties and 8. 4. Connect, Trust and Entrust: the Relationship with the 22. 5. Starting Off: Opening the 28. 6. Ploughing the Ground: Exploring Issues and Interests .. 35. 7. Hammering Out a Deal: Helping Parties 44. 8. Getting it Over the Line: Reaching 59. Skills, Emotions and 65. 9. Communication Skills .. 66. 10. The Mediator's Emotions .. 70. 11. Ethics in Mediation .. 72. Some Key 75. Appendix A: Sample Mediation 79.

6 Appendix B: Further 87. Contents 1. 1. Introduction Commencing with the parties' agreement to try to work out their issues through mediation and typically closing when the parties decide (or decide not) to bind themselves in a settlement, mediation is a process with well established protocols yet flexibility to adapt to Mediation involves one or more structured meetings between disputing parties, chaired the needs and personalities of the parties, their relationships and histories. by a neutral third person whose purpose is to help them negotiate and hopefully resolve a contentious problem. Typically scheduled on a single day, but sometimes continuing over several months, mediation is designed to bring the parties carefully to a moment of informed decision In an ideal (indeed, somewhat idealised) mediation, the meeting or meetings will be about their problem.

7 With the support of the mediator, the parties examine their interests, organised and transpire along the following lines: identify issues, develop options, consider alternatives and make decisions about future the parties will agree to meet together with an impartial mediator in order to try to actions and outcomes. settle the dispute through negotiation with the mediator's help;. Mediation makes a safe place for the parties to consider their situation together and the mediator will establish a positive and constructive atmosphere, setting hopefully embrace a shift in expectations and behaviours, enabling them to leave the ground rules and guidance for respectful and productive interaction between the unproductive rut into which their relationship has run.

8 It is at its best when the time, effort parties;. and money that the parties have been wasting in the dispute are released and redirected each of the parties will explain to the other party and the mediator its account of the into profitable economic activity. facts, its goals and its perspectives on the matter;. In a successful mediation, the process reaches fruition when the parties simultaneously the mirror of the previous point, each of the parties will listen to the other with a view understand their own choices and interests and communicate with each other, seeking to understanding where it is coming from;. a zone where these choices and interests coincide enough to fix an agreed future with the mediator will help the parties explore their underlying interests and choices, which they can both live.

9 Sometimes together, and sometimes separately;. That future may be an end to the historical relationship between the parties with them the parties, enlightened by a deepened understanding of their needs and the options never needing to meet again, or it may be one of continued, conditional dealing and before them, will negotiate with each other with the assistance of the mediator; and shared value generation. In either case, the future opens up as the parties fix the terms on where possible (as it often is), the parties will reach and sign an agreement and which they will put the antagonisms of the past behind them. thereby settle their dispute. Mediation often involves crystallising the situation to a moment of decision for the parties, This sounds simple, but a lot more is going on beneath the surface than one might think.

10 Setting the pathway forward once and for all. This makes it an exciting activity for a mediator, parties and their advisers. But as many disputes are multi-layered, involving Parties usually turn to mediation when they have run out of better ways to resolve a dispute. diverging economic interests, uncertain legal issues, different personal histories and They may have concluded that litigating may produce a disappointing result, consuming varying personalities, mediation is often difficult, and particularly delicate. Mediating a disproportionate amount of time, energy and money. They have likely reached a point successfully requires a range of personal and business skills and attitudes some of where negotiating without help is not taking them forward.