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These notes are intended to assist lawyers to prepare for mediation in
the LRT. The following documents are also available on the website and
lawyers are encouraged to read them as well: |
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LRT Mediation Objectives |
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The LRT's objectives for mediation are to: |
- facilitate parties resolving disputes themselves;
- provide a fair mediation process;
- provide an expeditious process;
- provide an effective process;
- provide a cost-effective process; and
- provide an informal process.
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Legal Issues in Mediation |
The mediation model adopted by the LRT is an "interests based" not a
"rights based" model. This means that parties are encouraged to
discuss and attempt to settle their dispute on the basis of their
interests rather than on the legal arguments framed to protect or
advance their interests. For example, if an objection to a mining
lease is referred to mediation, the Mediator will encourage the
parties to focus on the substance of the miner's plans for and the
objector's concerns about the project, rather than on any legal
technicalities about the form or substance of the objection.
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This is not to say that legal issues are irrelevant to a mediation. An
early discussion of legal issues may assist parties to understand the
decision-making process and where the LRT proceedings fit in that
process. It may also be helpful for parties to explore the legal
arguments that have been raised, so they can assess their prospects if
the matter has to be decided by the LRT. However, resolution of those
arguments is best left for decision by the LRT, if the matter cannot
otherwise be settled.
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Role of Lawyers in Mediation |
A Mediator can decide whether a party may be represented at the
mediation and, if so, by whom (rule 326(2) UCPR). Because legal issues are
not the prime focus of the mediation, the lawyer's role in mediation
differs from the lawyer's role in a hearing before the LRT. The lawyer
participates as the advisor not the advocate and has a critical role
in assisting their clients to prepare to take an active role in the
mediation.
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Preparing your Client for Mediation |
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Clients have a much more direct and active role in a mediation than in
a hearing. This can be very challenging if they are not properly
prepared for the mediation. Lawyers are ideally placed to assist
clients to prepare by: |
- Advising them on the decision-making process and how the LRT
fits into that process;
- Advising them on the mediation process and how that fits into
the LRT's procedures;
- Advising them on the role of the Mediator, in particular that
the Mediator will not make a decision about the dispute;
- Explaining the confidentiality provisions that apply to the
mediation;
- Addressing any legal impediments to mediation, such as the
authority of the client to settle;
- Discussing the costs incurred to date and the likely costs if
the matter proceeds to a hearing;
- Discussing the legal issues raised by the matter and evaluating
the prospects of a successful outcome at a hearing;
- Assisting their clients to prepare to negotiate by helping them
to:
- Identify their needs, interests and issues;
- Identify any critical or high priority issues;
- Consider what might be the other parties' needs, interests and
issues and which of those might be critical or high priority;
- Consider their best alternative to a negotiated settlement;
- Consider their worst alternative to a negotiated settlement;
- Identify possible options for settlement and to test those
options against the legal framework for the matter and against all
parties' needs, interests and issues.
- Assisting their clients to prepare their opening statement.
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During the Mediation |
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The Mediator's objective will be to encourage direct communication
between the parties, rather than through the lawyers. Lawyers will
already have done much to facilitate this if they have prepared their
clients for the mediation in the manner suggested above. Lawyers can
also be a critical support for a party during the mediation. They can: |
- Assist and advise their clients;
- Observe the mediation process being mindful of the Mediator's
role and obligations;
- Discuss any legal issues raised;
- Assist to resolve legal issues that may arise out of settlement
options favoured by the parties;
- If settlement is not achieved, assist in the transition to a
hearing (click here to see the Guide to Mediators - Transition to
Hearing).
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Lawyers who participate in the mediation in a non-adversarial manner
can protect the interests of their clients at the same time as
positively enhancing the prospects of settlement. Lawyers who approach
the mediation as an adversarial contest can be a direct impediment to
the process. |
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