Representing your Client in Dispute Resolution Conference

An attorney representing or accompanying a client to a dispute resolution or mediation conference is no longer the warrior litigator fighting for his/her client's cause. Mediation is an attempt towards peace-making, whereby all the attorney's instincts and legal training in the art of persuasion (by means fair or foul) takes a back seat to even more subtle skills - supporting the client's autonomy and right to self-determination whilst at the same time educating his client, the mediator and the other party, as to the legal substance and legal impact without alienating and limiting anyone.

Wow, that's a lot of balancing going on. For those of us who have or have had teenage children, you will understand what that means. However, unlike parenting, these mediation counsel skills can be learnt. Here are the main concepts an attorney in mediation should master:

1.   Understanding your role and the conflict trap within which you and your client might remain stuck in. It is too easy to revert to the traditional adversarial structure and sticking to positions. As a lawyer, you should be mindful of your own motivations and frame of mind and understand that your sole motivation ought to be to help people in conflict resolve their disputes;

2.   Be fully prepared to discuss the legal substance of your client's case. This does not mean beating your chest and peppering the discussions with adverbs and adjectives such that it might polarize the other party, but it does mean cooly setting out the strengths as well as the risks of your client's legal situation. You should also be completely prepared and realistic enough to discuss the legal impact meaning the practical consequences of the litigation process;

3.   Step back and allow the client to discuss their own business or personal reality. This is the hardest part, because as lawyers you are naturally protective and would be afraid of the client divulging "too much". However, it is necessary to support the client's expression of painful emotions as it is necessary for the other party to understand it as well;

4.   Master the skills of active listening, looping and framing/re-framing of interests, creating options to relate to the interests and reality testing using objective criteria or standards. These skills will take a lot of work, and the best attorneys will spend a lot of time and go through many mediations before mastering this. As a great yoga guru once said

"Practise, practise, practise..and ALL is coming." (Sri K Pattabhi Jois)

5. Bargaining well to close the deal. This will be the subject of another blog, for numerous books have been written by so many experts in this fieldb. Briefly it's a little like fencing. You would know when to strategically advance, anchor, retreat, trade-off, ZOPAs (zones of possible agreement) and recognise and label difficult tactics, and have a few tools up your sleeve.

6. The last skill, ie understanding difficult people and difficult situation, is in my view pretty esoteric. Whilst it is not necessary for an attorney to learn this, it would be useful to be able to recognise when you come up against these instances. It leads you back one full circle, I guess, you'll have to know yourself very well before knowing others. Also the subject of a separate blog.

If you're a lawyer interested in learning mediation skills in Malaysia to better represent your client, check us out a mediate2resolveonline.com

Online Dispute Resolution

Online Dispute Resolution can refer to two different things. 

The first type are real world disputes mediated through web-based channels.

The second relate to issues in property rights[1] arising in the scripted environments of Multiplayer Massive Online Role Play Gaming (MMORPG) and the unscripted environment of Virtual Worlds.  MMORPG disputes are sometime violently dealt with by role players within games, although mostly players are governed by the End User License Agreements. Virtual world disputes are mediated through role play arbitrators appointed by the game developers or “wizards” of the world in question, using messaging tools.

In either form, online dispute resolution or online mediation specifically for the present refers to the channel by which mediation can occur ie through online or web-based platforms. Whether it would develop or metamorphous into its own distinct industry remains to be seen.

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[1] Barker, K., MMORPGing – The Legalities of Game Play. European Journal for Law and Technology Vol 3, No 1, 2012

Benefits of online mediation

Why online mediation?

1) Fast: It can be scheduled very quickly since participants do not have to travel to meet in one spot.

2) Cheap: It is cost effective as there is no need to rent space, travel or incur any logistical costs.

3) Convenient and Safe: It allows participants to communicate from the privacy of their own space and for participants who may need to smoke for example, or for those that has special needs such as handicapped persons access, they will have the freedom and ease to do as they wish.

How to Choose a Good Mediator

If you have never undergone a mediation session, how would you go about choosing a mediator that will give you the best experience and ensure that you have explored all the possible outcomes there are? Here are a few characteristics you might look out for:

1. Did you sense that the mediator can establish rapport? This is very important because a sense of rapport will encourage parties to communicate with each other. Communication is the foundation for a productive mediation experience.

2. Will the mediator be creative and operate from an interest-based perspective? A trained facilitative mediator will gently guide parties to identify their interests, and from there help you to generate options for meeting those interests. Ask the mediator about his approach to conflict resolution and see if she mentions the term "interests".

3. Does the mediator seem to be able to listen? Good mediators are highly skilled at active-listening: acknowledging, paraphrasing and asking questions to tease out the best communication between parties.

4. Is the mediator patient and tenacious? How would you know this until you get into a relationship with somebody? There are a few indicators. If the person takes his time to explain and answer all your questions well, if he or she speaks to you respectfully and not condescendingly, there is a high likelihood that the person will be patient as a mediator.

5. Must the mediator have some sort of industry knowledge or background in the type of dispute you're facing? Well, a good mediator does not need to have domain expertise although it would be useful. However, some mediators are particularly good in certain areas such as marital mediation or community mediation, so it may be worthwhile to enquire about their experience.

Contact us at mediate2resolveonline.com if you need a good mediator.

Benefits of mediation for custody issues in inter-religious divorce disputes

An inter-religious marriage occurs when two people of differing faiths marry, and each spouse retains his/her own faith. „Differing religious beliefs and teachings, beliefs and practices about God, deities, humanity and the universe may cause conflict , especially when it affects the child or children of the marriage. This problem becomes acute when parents divorce, and disputes arise relating to the custody and upbringing of the children.

Mediation is so beneficial in this instance because „parents are given the opportunity to carve out their own collaborative outcomes with the assistance of the mediator facilitating the negotiation. The mediator can use techniques to assist both spouses to resolve their religious conflicts and come up with a parenting plan for the child. Options that meet the interests of the parties would be generated and considered and the resulting agreement should resolve divorce contestations and resolve future issues on parenting.

Throughout the process, the question of fault in the relationship is not germane to the process of mediation as the interests of the child is the paramount consideration.

Find out more at www.mediate2resolveonline.com

Mediation in culture: Malaysia as a case study

Malaysia is a multi-cultural and diverse society. Sometimes, each culture will live within a defined geographical community such as a village, and other times, in more urban areas the cultures co-exist in one huge melting pot.

Each community or village would have its own dispute resolution processes, dealing with simple transgressions such as theft of chicken and lifestock to the very rare instances of more serious crimes such as murder. The ketua kampung (village chief) usually dispenses summarily with minor offences and arbitrates neighbourly disputes. Often times, the imam (Muslim religious leader) would also be called upon to give his opinion. When a matter needs to be escalated, it may be brought up to the penghulu or orang besar, meaning the chieftan of the district, right up to the Sultan, usually the final arbiter of disputes.

 Amongst the Chinese community, life was often regulated by clan strictures and clan leaders often arbitrated or mediated disputes. The Indian community in Malaysia tend to be organised along ethno-linguistic lines such as the Tamils, the Malayalees, the Telegu as well as those of the other Indian sub-continent communities such as the Sri Lankans, the Benggalis and the Punjabis. Each have their own dispute resolution mechanism, with the panchayat system having been used rudimentarily at the lowest economic level in the Tamil communities.
The ethnic tribes of Sabah and Sarawak similarly have their own processes, usually involving tribal chieftains and priess.
In the suburban areas, the concept of rukun tetangga was introduced by the government to encourage self-help and self-reliance amongst the more diversified communities. Mediation by community leaders is part of the idea.

Contact www.mediate2resolveonline.com for professional mediation of your disputes.

Online Mediation

www.mediate2resolveonline.com

In both mediation and online mediation a neutral mediator who is trained assists the parties to open up the channels of communication to negotiate a mutually acceptable and satisfactory agreement. During a face-to-face mediation meeting the mediator and the parties will meet at a pre-agreed venue.. In online mediation, all communications between you, the other party  and the mediator take place through online mechanisms via the Internet, video-conferencing  and telephone conferencing via a desktop computer, laptop, smartphone or Android phone.

Contact Mediate2ResolveOnline.com if you would like one of our online mediators to facilitate your discussions.