Third Pacific Regional Mediation Forum June 2012 Mediator Strategies & Interventions

1. Third Pacific Regional Mediation ForumJune 2012Mediator Strategies & Interventions Michael Wall & Chuan Ng Federal Court of Australia

2. Architecture of the Session Keeping the Flame of Mediation Alive by: Customising the mediation process to the case (not a cookie cutter approach) Flexible use of joint sessions and the caucus: establishing mediator authority, building rapport and managing communication Adopting strategies for overcoming psychological & cognitive Barriers Addressing merits barriers Mediator Strategies & Interventions

3. Mediator Strategies & Interventions Mediator’sOverriding Goals : • Facilitate effective communication • Shift thinking/ perceptions • Narrow gap • Generate movement • Resolve differences • Achieve consensus

4. Fit the Forum to the Fuss: Aligning the Mediation structure/ process to the issues/ parties. Pre Mediation? Joint (open) session: A meeting of all participants in the mediation private (caucus) session. A private (and usually confidential) meeting outside the larger group Structure the Mediation

5. Joint Session : Opportunity For mediators Gain insight Demonstrate leadership Set tone Be transparent Impartiality? For lawyers Demonstrate skill Access decision maker For parties Be heard Listen Exist party-to-party Gain understanding Evaluate

6. Caucus : Respite For mediators Reality testing Coaching Fixing mistakes When the issue is not the issue? Mutual partiality? For lawyers Real advice Strategize For parties Respite from joint Reactive devaluation Explore

7. Use specific skills to temper the potential negative aspects of competitive bargaining – e.g. Educating about how offers may be perceived Educating about the timing of offers Assisting with packaging and presenting offers Helping parties reflect on patterns of concession making Softening the negative impact of hard-ball tactics Return to a focus on ‘needs and interests’ to deal with impasses in negotiations Creating a ‘seize the day’ approach Establish deadlines; create sense of urgency Persuasion through ‘conversation’ not ‘preaching’ Setting the Tone & ‘Conditioning’ the Parties

8. Model interest based communication during the process by: Talking about ‘issues’ rather than attributing blame Providing positive feedback Seeking clarification rather than assuming intentions Exploring reasons for actions Being future focused mediator as a calming influence mediator sends signals of flexibility mediator discloses interests and floats ideas Interventions to Facilitate & Promote Communication and Movement

9. Advocacy Bias Partisan (selective) perception Overconfidence/ over optimism (exaggerated over confidence) Over investment (sunken cost) Mis wanting / Loss Aversion Reactive devaluation Zero sum bias Cognitive & Merits Barriers

10. Cognitive Barriers • Mediator Interventions • Reframing • “The Map is not the Territory” • Perceptions & Understanding filtered by • Experience, Values and Expectations

11. Organisational Life Perceived & Experienced Differently by Individual Members The six blind men No one sees things from all points of view

12. Mediator Strategies to address cognitive barriers - Third Position Questioning & Role Reversal • Questions rather than statements • Unbiased summarising • Mutualising • Bringing the other into the room • Hear & acknowledge before a challenge or request • The mediator’s dance • Talking about what is ‘achievable’ rather than what’s ‘reasonable’ • Focus on the issue rather than the behaviour • Reframing • Expansion of information exchange • Broaden the party's perspective • ‘Expand the pie’: look for additional issues

13. Mediator Interventions Role Reversals and Perceptual Positions

14. Reframing can shift focus from: - power/ problems to interests. - positions/outcomes to interests- attacks on people to solving problems- accusations into issues- general to specific and specific to general - negative to positive- destructive to constructive- past to future- differences to common interests- offer to option Cognitive Barriers

15. Mediator Strategies for responding to merit barriers - Case Analysis/ risk assessment - Decision Tree (Analysis) - BATNA (test is not ‘fair’ or ‘reasonable’) - Goal Setting / Risk Analysis - Reality Testing & Doubt Creation MeritsBarriers – interventions

16. PsychologicalBarriers Strong Emotions

17. Mediator Interventions to balance emotions and reason include:- “Go to the Balcony” - Interruption- Naming (the behaviour)- Questioning - Clarifying- Summarising- Acknowledging- Mirroring- Correcting- Diverting- Priming (suggest/ hypothetical)- "What If"/ Suppose that- Role Reversal- Perceptual Positioning (move to second person)- Reframing- Make decisions based on risk assessment and not moral judgment Psychological Barriers Strong emotions

18. Mediator to constantly re-assess the best way of generating movement: Face to face Discussions and negotiations Caucused negotiations Shuttle diplomacy (Mediator as carrier pigeon?) Blended or mixed mediation formats Generating Movement Through Persuasion