First Published by Bond Dispute Resolution News 8 Volume 17 June 2004
“Failing to prepare, is preparing to fail.”
Introduction
Mediation and conciliation are forms of “assisted decision-making” (ADM) or “assisted negotiation” (AN). There are many types of mediation and conciliation.[1] The four most commonly documented being settlement, problem-solving, therapeutic and evaluative. There are of course many other hybrids and cousins including narrative, restorative, humanistic, mindful, intentional, forgiveness, and transformative mediation. One common form of the evaluative type is SIMSNILC mediation (Single Issue Monetised Shuttle No Intake Lawyer Controlled” mediation). [2]
Many lawyers in Australia attend mediations and conciliations weekly, but know only one or two “types”, particularly the comfortable SIMSNILC model prevalent in personal injuries disputes. This limited exposure leads to professional mistakes. Clearly, different clients need different services. It is a responsibility of lawyers to attend different types of mediations and conciliations, increase their stable of service providers, and then to match mediation or conciliation type to client problem. Mediators are privileged to watch many people negotiate and make decisions. They see the best and the worst. In 1999, one survey of the most employed commercial lawyer-mediators in Australia reported that mediators see the following commonly made mistakes by lawyer representatives:
As failure to prepare “properly” for negotiation and mediation is probably the most commonly documented misdemeanour [4], this paper will offer a few hints to add to the preparation tool box. Only three things matter in negotiation/mediation – preparation, preparation, preparation.
“While success in negotiation is affected by how one plays the game, the most important step for success in negotiation is how one gets ready for the game. . . Although time constraints and work pressures may make it difficult to set aside the time to plan adequately, the problem is that for many of us planning is simply boring and tedious, easily put off in favour of getting into the action quickly.”< sup>[5]
In every negotiation or mediation, it is recommended that lawyers should gradually develop and write out “Five Humble Hypotheses”, and share these with the mediator (and clients and possibly the “opposition”) at least a week before any joint mediation meeting.
Why are these hypotheses “humble”? Because they change and evolve as more facts, factors, and risks emerge. Early certainty usually means early mistakes. What are the Five Humble Hypotheses?
1. What goals does each client have? This is the reverse of “what risks does each client have if the conflict continues”?
2. What are the causes of this conflict?
3. What interventions might be helpful?
4. What bumps/glitches are predictable?
5. What substantive outcomes are possible/probable?
Lawyers should prepare “humble” answers to these five questions and discuss these preliminary answers with the chosen mediator at least a week before any joint mediation meeting. A mediator desperately needs these insights because lawyers have known their clients for far longer than the momentary mediator; and a mediator wants to devise appropriate procedures and interventions, and avoid ambushes.
Conversely, when discussing how to structure a mediation meeting with a problemsolving mediator, lawyers and their clients should expect routine, but more colloquial, private “preparation” questions from the mediator. These more colloquial questions from a mediator reflect the five humble hypotheses. For example, Legal Aid mediators in Queensland and Western Australia, who do not have funding for early preparation meetings, nevertheless are trained to ask both lawyers and clients some or all of the following “Corridor Intake Questions” in the short minutes before a joint mediation meeting takes place.
Abbreviated Corridor Intake Questions
1. Why haven’t you been able to settle this by yourselves so far?
2. What would help this conflict to settle today?
3. What would you like me to do to help you both reach an agreement?
4. What risks do you (each) face if you walk out with no agreement?
5. How will you respond to normal patterns of negotiation?
Humble Hypothesis No 1:What are the risks for each party if this conflict does not settle? (What are the goals of each party?)
Failure to prepare a simple written risk analysis for clients is one of the major documented failures of lawyers who negotiate, or attend mediations. There are many possible reasons for this failure, including:[6]
A client’s risk is the opposite to a client’s goal. For example, the risk of delay reflects the goal of speed; the risk of high legal costs reflects the goal of minimising transaction costs; the risk of stress reflects the goal of good health etc. Thus a client’s one page of life, business and legal goals can also reflect his/her balancing life, business and legal risks.
As a feature of negotiation is public rhetoric and deception, it is sometimes difficult to emerge from these (self)-deceptive practices and write out the evolving “risk and goal list”. Can a mediator be trusted with this information? Like all unranked shopping lists (compare s.79 and s.75(2) of the Family Law Act), it is also a challenge to place ranking and monetary value on each of a client’s’ goals and risks.
Nevertheless, all skilled negotiators know that these perceived goals and balancing risks will provide the keys to the vast majority of settlements. This is because most clients will jam on “pure” percentages and money. Crossing the monetary gap will depend upon identifying “extra” life goals and risks.
Lawyers tend to advise clients orally or in a letter of the three risks of uncertain outof- pocket legal costs, uncertain judicial delay; and uncertain judicial behaviour. These are all very important. Nevertheless, as a mediator, I note constantly that the message sent by lawyers is not the message received by clients. On the last risk, namely uncertainty of judicial behaviour, some mediators in Melbourne and Brisbane are now handing the following quote to lawyers and clients rendered overconfident by their own rhetoric.
Supreme Court of New South Wales Court of Appeal
Handley, Sheller and Fitzgerald JJA
40907/98 – Studer v Boettcher [2000] NSWCA 263
Fitzgerald JA
[63]….it is often impossible to predict the outcome of litigation with a high degree of confidence. Disagreements on the law occur even in the High Court. An apparently strong case can be lost if evidence is not accepted, and it is often difficult to forecast how a witness will act in the witness-box. Many steps in the curial process involve value judgments, discretionary decisions and other subjective determinations which are inherently unpredictable. Even wellorganized, efficient courts cannot routinely produce quick decisions, and appeals further delay finality. Factors personal to a client and any inequality between the client and other parties to the dispute are also potentially material. Litigation is highly stressful for most people and notoriously expensive. An obligation on a litigant to pay the costs of another party in addition to his or her own costs can be financially ruinous. Further, time spent by parties and witnesses in connection with litigation cannot be devoted to other, productive activities. Consideration of a range of competing factors such as these can reasonably lead rational people to different conclusions concerning the best course to follow. One helpful reconceptualisation of a lawyer’s and mediator’s task is “to assist clients to make wise decisions in the face of uncertainty”.
Humble Hypothesis No 2: What are the Causes of Conflict?
Before intervening to assist a person involved in conflict, a skilled helper or representative should make some attempt to determine:
Wrong diagnosis will inevitably lead to the wrong intervention. As with physical illnesses, a correct diagnosis is needed before appropriate “treatment” or intervention can occur.
There are many helpful models developed to assist in the diagnosis of causes of conflict. One particular favourite is sometimes known as “Moore’s pizza”, or “Moore’s circle of conflict”. This is a linear representation of the five (often overlapping) causes of conflict developed by Christopher Moore:[8]
Data conflicts are caused by:
Interest conflicts are caused by:
Structural conflicts are caused by:
Relationship conflicts are caused by:
Value conflicts are caused by:
In family disputes, what are three of the most common causes of conflict in your experience?
1 …………………………………………………………………………………….
2 …………………………………………………………………………………….
3 …………………………………………………………………………………….
In my experience, here are some of the common causes of conflict in family disputes, using Moore’s categories.
Interest conflicts are caused by:
Data conflicts are caused by:
Relationship conflicts are caused by:
Structural conflicts are caused by:
Value conflicts are caused by:
(i) Data or information differences
Which of the duelling expert lawyers, valuers or doctors is more credible?; What might a judge do in one year’s time?; What promises were made by or to relatives?; How do teenagers normally behave?; There are/are not assets missing; The children do/do not want to see you; You can earn extra income.
(ii) Communication difficulties
“Everyone is so upset, we cannot speak without bringing old skeletons out of the closet”; “The messages sent through lawyers’ letters are always misunderstood and inflammatory”; “The message sent is never the message received”; “Everyone talks, talks, talks – but there is no clarity”; “Mary is so upset that she won’t even discuss anything”.
(iii) Relationship conflicts
“I cannot be in the same room as her”; “He presses my buttons”; “She/he is a typical female/male”; “Her lawyer is a vicious shark.”; “That second wife is the real problem”.
(iv) Value differences
“A second spouse/family is more important than the first”; “Someone who cares for a dying person is a saint”; “Aggressive relatives deserve to be punished”; earning income is more/less valuable than homemaking.
(v) Structural conflicts
“We cannot negotiate until we have collected more facts”; “The lawyers keep us apart”; “We do not have the skills/time/venue to communicate clearly”; “The lawyers are giving advice based on different sets of facts – garbage in-garbage out”; “The rich relatives are trying to wear us out”; “The legal system is a lottery”; “My relatives and friends say that I should not give in”; “I think that the lawyers are spinning this out in order to milk the assets”.
(vi) Interest conflicts
SUBSTANTIVE Interest “There is only one necklace, ring, grand piano, Christmas Day, holiday house, Van Gogh, and we both want it.”
PROCEDURAL Interest – “It is outrageous, before even talking to us, (s)he went to see a lawyer” – “They want to have a two-hour meeting where the lawyers do the talking!” – “They do not answer our letters/phone calls/requests for information”
PSYCHOLOGICAL Interest This is perhaps the most common cause of conflict in family disputes. There are many theories which are helpful to gain understanding about what is happening for clients. The “presenting” problem is money, but the “real” problem is the roller-coaster of feelings. Elisabeth Kubler-Ross’ model of “loss” is sometimes helpful.[9]
We all experience “loss” in our lives (loss of mobility, promotion, youthfulness, parents, hair, hope for the future, self-image, children, superannuation etc.) and many go randomly through stages of shock, denial, depression, anger, and hopefully acceptance as ways of managing these losses.
“Adjustive dissonance” is the phenomena where one spouse is adjusting to the loss of a spouse, piano, dream, house, sense of importance, at a different rate to another. “Stop wallowing in your grief, Fred, you’ve got to move on”; “But it’s not fair, look what (s)he has done to the children and me”; “(S)he will come back”; “(S)he will come to her/his senses”; “It is a matter of principle that……”.
At the time of a marital separation, senses of “loss” proliferate, and survivors wander up and down the grieving stages for years. For example, loss of a beloved person; familiar accommodation when the family home must be sold; familiar roles of caring; sense of self-esteem when their share of assets is small; cash-flow; a sense of immortality; last chance to have some capital; last chance to apologise or talk through a difficulty; friends; social acceptance.
These “losses” are manifested in the ubiquitous “it’s a matter of principle”; “I don’t care anymore”; “I can’t believe this has happened”; “she just doesn’t deserve it”; “I want justice”; and hopefully eventually “I want to get on with my life”.
Coupled with the insights from the grieving stages over “loss”, is the helpful literature on “intra-psychic conflict” – or in more popular parlance “baggage”.[10] That is, we all carry baggage or unresolved hurts and losses from the past. When a loss occurs later in our lives, this baggage “resurfaces”, and we and our clients replay the old tune. We pretend that this conflict is about money or furniture and our lawyers place the problem quickly and clumsily into a “legal” category of “contribution”; “economic fault”; “need and ability to pay” under the Family Law Act.
For example – “She has always treated me this way”; “You remind me of my father’s behaviour”; “Our family has a history of doing this”; “She has always been the favoured child”; “He was always more focussed on the business/sport/money than upon us”; “I felt like a failure again” etc.
The task of the lawyer is as an expert problem-solver. If we diagnose the wrong cause, we will always prescribe the wrong intervention.
Even when we diagnose the right cause of the conflict, we may still get the intervention wrong. But it is still our professional responsibility to try to diagnose the foundational causes correctly.
A settlement mediator is typically not interested in the causes of the conflict, as (s)he is trying to split the difference between the monetary claims or the overnight stays. An evaluative mediator may not be interested in the causes of the conflict as (s)he is trying to guess what a judge might decide and then lower disputants’ expectations. However, a problem-solving and therapeutic mediator will to a lesser and greater extent, ask clients, tribes and lawyers numerous questions about causes.
Conclusion
Only three things matter in negotiation and mediation – preparation x 3. Yet skilful
preparation is rare both anecdotally and from surveys of mediators and negotiators.
This paper has provided encouragement, concepts and precedents which have proved
useful in the past. Hopefully, you can add parts of these to your existing repertoire,
and thereby improve your skills as a problem-solver, negotiator and diplomat.
End Notes
1
In many countries of the world, the terms “mediation” and “conciliation” are used interchangeably. In Australia, NADRAC has attempted to reduce terminological and marketing confusion by describing the two words as follows: “Mediation is a process in which the parties to a dispute, with the assistance of a neutral third party (the mediator), identify the disputed issues, develop options, consider alternatives and endeavour to reach an agreement. The mediator has no advisory or determinative role in regard to the content of the dispute or the outcome of its resolution, but may advise on or determine the process of mediation whereby resolution is attempted. Conciliation is a process in which the parties to a dispute, with the assistance of a neutral third party (the conciliator), identify the disputed issues, develop options, consider alternatives and endeavour to reach an agreement. The conciliator may have an advisory role on the content of the dispute or the outcome of its resolution, but not a determinative role. The conciliator may advise on or determine the process of conciliation whereby resolution is attempted, and may make suggestions for terms of settlement, give expert advice on likely settlement terms, and may actively encourage the participants to reach an agreement.” From NADRAC, Alternative Dispute Resolution Definitions (Canberra, 1997) pp 5, 7.
2
J H Wade, Mediation – Seven Fundamental Questions (2001) Särtryck årgång 86 Svensk Jurist Tidning 571-577; also found at Bond University Dispute Resolution News http://www.bond.edu.au/law/centres/drc/newsletter/vol7jan01.pdf
3
J.H. Wade, Representing Clients at Mediation and Negotiation (Queensland: Bond University Dispute Resolution Centre, 2000) 180.
4
See R. Lewicki et al, Negotiation (New York: Irwin, 1999).
5
Ibid Lewicki at 52.
6
See J.S. Hammond, R.L. Keeney, H. Raiffa, Smart Choices – A Practical Guide to Making Better Decisions (Boston: Harvard Business School Press, 1999); J.H. Wade, “Systematic Risk Analysis for Negotiators and Litigators: How to Help Clients Make Better Decisions” (2001) 13 Bond Law Review 462.
7
Wade supra note 6.
8
The Mediation Process: practical strategies for resolving conflict 2nd ed. (San Francisco: Jossey- Bass 2003); see also J. Folberg and A. Milne, Divorce Mediation: Theory and Practice (N.Y.: Guilford Press, 1988).
9
E. Kubler-Ross, On Death and Dying (New York: Basic Books, 1975). M. Evans and M. Tyler- Evans, “Aspects of Grief in Conflict: Re-Visioning Response to Dispute” (2002) 20 Conflict Res Q 83.
10
10 eg J.R. Johnston & L.E.G. Campbell, Impasses of Divorce (New York: The Free Press, 1988) chs 3-5.
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