Logo

Mediation

/

Mediation for Parents

In 1981, the authors of “Getting to Yes” wrote that “Like it or not, you are a negotiator.”  They were right.  They did not add that if you are a parent, then, like it or not, you are also a mediator, but they should have.

I am lucky to have two great kids, and a fantastic wife who deals with these issues at least as often as I do, but like household with a child to Playstation ratio of 2:1, there are times when mediation is needed. When I studied mediation, after many years of parenting, I noticed that a lot of the principles and techniques that they were teaching sounded really quite familiar.

Does being a parent make you a better mediator, and does being a mediator make you a better parent?  You would have to ask my kids about the second part of that question* but here’s three things I learned from parenting that can make any dispute resolution process a lot more effective.

 

1. First, find out what the yelling is about

Now that my boys are both past the age of 11, I sometimes think it’s safe to leave them in a room together while I go outside to mow the lawn or hang out the washing.  This usually ends well, but sometimes it means that by the time I become aware of the disagreement, it’s because I can hear them from outside the house, and possibly over the sound of my lawnmower.

It is tempting, at that point, to demonstrate the error of their ways by ALSO YELLING REALLY LOUDLY but that doesn’t ever help.**  I know that if there’s going to be any chance of getting past whatever this disagreement may be about, I need to find out what happened about 5 minutes before I walked in.

Asking them to each tell me what they are fighting about is only partly for my benefit.  The main reason for doing this is that it gives each of them the chance to hear how the other person sees the situation. If I can get them each to explain their position calmly, and I can get them to each listen without interrupting, there is a good chance that not only will I know what is going on, but they will each understand where the other person is coming from as well.

It is, of course, much easier to sort these things out if the people having the argument are not already furious with each other.  I tell my kids to come and talk to their parents before things get out of hand, just as I often recommend that two people having a dispute that needs resolving should go to a mediator as soon as possible.  My clients follow this advice about as often as my kids do, but I’m going to keep saying it anyway.

 

2. So tell me what you want (what you really, really want)

It’s good to find out where the disagreement started, but every parent I know is far more interested in finding out how to make the disagreement stop.

Like most people, my children enjoy battling their friends on Fortnite but they do not actually enjoy conflict in real life.  If they are arguing, it’s because one of them wants something and the other person does not want to give it to them.  The problem is that it’s easy for them to get so caught up in winning the argument that they lose sight of what they were trying to achieve.

So, that means my next task is to help them to figure out, and express, what they really want.  Once I know that, it opens up a whole range of possibilities, and we can start to look for a solution that works for everyone.

Imagine the scenario where I walk in and find my children arguing over who gets the last salad in the fridge. ***  At first glance, the logical solution seems to be that they would each eat half of it.  But, I happen to know that while they both like cucumber, only one of them like capsicum and the other one is more keen to get his hands on the lettuce. **** Once we figure that out (and agree that they can feed the carrot to the dog for some reason) they can both get all of what they want instead of just half.

 

3. I should not try to fix it myself

After hearing from both children, my first instinct is usually to tell them how to fix the problem.  This is quick and easy and has one small benefit in that it allows them to find a small amount of common ground by both getting mad at me at the same time.  It makes me feel good, but usually only for around 10 to 12 minutes until my brilliant solution starts to fall apart.

The problem is simple.  My children are pretty good at sticking to agreements if they actually make those agreements and they feel that the agreed outcome is reasonably fair.  However, if I tell them what the solution is going to be, they will generally track me down a few minutes later to tell me that my solution has failed to actually solve the problem and also they are still mad at me.*****

It takes a lot longer to get to a solution if I get them to come up with it themselves.  Sometimes it takes several conversations over an hour or so.  Sometimes one of them will storm out and disappear.  Sometimes I will deeply regret my decision to give up all forms of alcohol.  Still, if I can manage to step back and let them work it out between them, they will generally get to an agreement that they can both live with. More importantly, they can own it instead of having me trying to impose it on them.

———-

Running a mediation is not quite the same as parenting.  The stakes are usually higher than who gets the last pineapple icy pole, and when I’m mediating I can’t send the parties to their rooms or take away their iPads if they won’t co-operate.  Still, the same principles apply.

A good mediator will always start by helping the parties to explain their positions to each other, then getting them to figure out what they each want, and finally helping them to find a solution that they can both live with.  It takes a little longer, but it’s always worth it.

 

 

* Please do not actually do this

** Trust me on this. I have tried it a few times.

*** The most hypothetical example in history, but please just go with it

**** Which goes really well with tomato sauce

***** This is sometimes fair

 

 

 

/

Mediation Needs Secrecy Like a Fish Needs a Bicycle

Like many lawyers who started our careers in the ’90s, I was taught to value secrecy.  I was always told to give away as little information as possible in any dispute.

The reasoning was simple.  All cases have weaknesses, but we should make it as difficult as possible for our opponents to find out about them.  If the case could be settled without anyone ever finding out about those flaws, results would be better.  I was taught that we were not allowed to break the rules of discovery, but we should always find a way around those rules if we could.

To be fair, it’s not only lawyers who think this way.  Many clients have asked me how to go about withholding key information until the start of a trial so we could ambush our opponents with it.  I even had one client who instructed me to proceed on the basis that the document he was holding in his hands at that exact moment did not exist. This was, of course, the end of our lawyer-client relationship.  Unfortunately, that client was not the only person who has ever asked me to ignore or conceal a document.  He, was, however, the only person who has ever tried to remove a document from my possession by taking away a paper copy of an email when the original was still in my inbox.

There are many reasons why a secretive approach to disputes is not a good idea, including the additional costs that get wasted while lawyers fight over whether a document has to be disclosed, to the specific penalties for such behaviour set out in the Civil Procedure Act 2010.  In this article, I want to focus on how such tactics are harmful to the mediation process.

It is usually pretty obvious when a party is trying to avoid disclosing documents, or where their approach is to give as little information as possible.  If a party feels that their opponent is trying to mislead them, this creates anxiety and other negative emotions.

Psychologists believe that those negative emotions can cause a person to engage in adversarial behaviour and that when one party takes an adversarial approach, it is more likely that that the other party will also become more adversarial.

The end result can be a feedback loop where each party’s approach becomes more adversarial until one of them walks out.

I know it goes against what a lot of lawyers have been taught, and it may go against our clients’ expectations, but research, and experience, suggest that a free and frank exchange of information and documents is actually the best way to prepare for a mediation.

/

A mediator’s guide to the AFL trade period

It’s a great time of year for football.  The AFLX, whatever that was, is over.  The AFLW is in full swing, and we are nearly as far as it is possible to get from the horror that is the yearly trade period.

Even for those of us who really like football, the AFL trade period is terrible. It consists of 11 days of waiting for something to happen followed by about four hours where you might see a few trades completed, and then it’s over.

If you follow the trade period each year, I’m sure you always ask yourself the same question as I ask myself, which is “How can we use the lessons we learn from this to improve the way we do mediations?”

Here’s three things I think we can learn from past trade periods that might be useful next time you need to negotiate a settlement. I apologise in advance for using a whole bunch of examples involving the Collingwood football club, but those are the only trades I really care about.

 

It’s possible to find a win-win solution

On a good day (usually around 1pm on the last day of the trade period) it’s possible to spot a good outcome.  Perhaps the best one in recent history was the Heath Shaw/Taylor Adams trade in 2013.

Collingwood had a rare talent in Heath Shaw (we will never forget that smother in the 2010 Grand Final replay) but it seemed pretty clear that he was no longer happy at the club and he needed a fresh start. Meanwhile, Collingwood seems to have taken the view that  that the premiership window had closed much sooner than they expected so it was time to recruit some younger players.

Taylor Adams for Heath Shaw was a great deal for both clubs.  GWS got a talented, experienced player who could provide leadership for their developing group.  Sure, it is sometimes painful to watch Heath Shaw in All-Australian form and possibly playing the best football of his life for the Giants, but we all know he wouldn’t be playing like that if he was still at Collingwood.

Meanwhile, Collingwood picked up a solid midfielder and future leader who will, one day, probably play in a Grand Final.

Comparing apples and oranges is never a good idea, and it’s almost equally hard to compare Taylors and Heaths.  However, you will get much better outcomes in mediations if you worry less about a direct comparison between the value of what you get and what you give away, and more on how the agreement directly benefits you.

 

Don’t judge the outcome too soon

In 2014, Dayne Beams needed to get back to Brisbane for family reasons.  There was no point in trying to force him to play out his contract, knowing he wanted to be elsewhere, so really, Collingwood had an awful bargaining position and just had to make the best of it.  In that situation, picking up draft picks 5 and 25 wasn’t a bad outcome, but they also picked up young midfielder Jack Crisp.

At the time, reaction to this trade was not particularly kind to Crisp, with the term “steak knives” getting thrown around a fair bit.  However, at the end of his first season at Collingwood, Crisp finished third in the Club’s best and fairest, with more votes than anyone expect Dane Swan and Scott Pendlebury.

Meanwhile, Collingwood traded pick 25 for Levi Greenwood and used pick 5 to recruit Jordan De Goey.  At the time of writing, Levi Greenwood is battling injury and Jordan De Goey has managed to get himself suspended again, this time indefinitely.

In hindsight, picking up Jack Crisp in that trade was a great outcome.

It’s not always so clear cut.  Injuries aside, Levi Greenwood has clearly been an asset to Collingwood.  Meanwhile, North Melbourne used the draft pick they received for Greenwood to recruit Daniel Nielson.  I only know this because I looked it up while I was writing this article.  It turns out Daniel Neilson has played seven games for North Melbourne since making his debut in 2017.  Is he better than Greenwood?  It’s far too early to say.

It’s important to accept that in any mediation, there will be some degree of uncertainty.  If you will only accept a deal when you can unequivocally say that it is better than the alternatives, the deal will not get done.  However, if you use your best judgment at the time, there’s a pretty good chance that the eventual outcome will turn out to be better than the alternatives, even if it’s not for the exact reason as you initially thought.

 

Focus on key goals, not trivial side issues

The main reason why I hate trade week is that it can take forever for really obvious deals to get done. I can’t really say why this happens, but I suspect that it’s often because both parties are trying to get a few extra concessions so they can say that they “won” the trade.  Often, those concessions are actually worthless.

Adam Treloar’s trade to Collingwood was described in The Age as the most prolonged and acrimonious of the 2015 trade period.  In the end, Collingwood got Treloar and pick 28 in exchange for pick 7, a first round pick for the following year, and pick 65.  What did the Giants do with pick 65?  Nothing. As far as I can tell, they literally did not use it.

There are many more examples of absurdly high draft picks being traded to get a deal done.  I didn’t even mention that the Dayne Beams trade also involved Collingwood giving Brisbane Pick 67, because it really didn’t matter. For the record, Brisbane used it to recruit Josh Watts, who never played a senior game for them.

I don’t have any data on how many trades have fallen over because people were arguing about late round draft picks.  It does seem like a lot of big trades get held up until the last possible minute, which probably means other deals can’t get done before the deadline.  The whole process could be improved if less time was spent on trading draft picks that will probably never make any difference to the club that receives them.

***

I strongly suspect that the 2018 trade period will play out exactly like every other trade period before it, and this article would make no difference to this even if every club in the AFL reads it.   However, I hope that if you go into your next mediation knowing what you want and what it’s worth to you, keeping an open mind about the potential benefits of a deal, and determined to focus on what really matters, your mediation experience will be better, and quicker, than an AFL trade period.