The document discusses the importance of the preliminary conference in mediation. It provides opportunities to set expectations, understand participants and decision makers, assess issues and risks, and build rapport before the formal mediation begins. The preliminary conference allows the mediator to ensure the dispute is ready for mediation, explain the process and address any power imbalances or cultural considerations upfront. It is an important step to avoid later misunderstandings and encourage preparedness and cooperation during the mediation.

1. THE IMPORTANCE OF THE
PRELIMINARY CONFERENCE
An opportunity for the parties and the mediator

2. MODEL OF
MEDIATION
Understanding
and exploration
Opening
Participants’
opening comments
Reflection & summary
Issue exploration
Private sessions
Negotiation
(Private sessions)
Agreement
and
closure
Pre-mediation: the preliminary
conference
Post-mediation:
participants’
implementation
of the agreement
Problem Solving
Resolution
Future
Past
Agenda setting-
identifying the issues
© Resolution Institute, 2019

3. 3 KEY
OPPORTUNITIES
Rapport Style
Expectations

4. PRELIMINARY CONFERENCE
• Do they understand my role?
• Do they know what to expect? Need to set expectations? Possible / impossible
• Who are the participants? Who is the decision maker?
• Concerns / Risks?
• Is the dispute ripe and ready for mediation?
• Confirm understanding of Mediation Agreement
• Explain confidentiality
• Explain good faith
• Ground rules (to match the needs of participants)
• Confirm no conflict

5. PRELIMINARY CONFERENCE
• Authority to reach agreement – any limits?
• How can I build rapport with the parties
• Build trust – don’t over promise, be open, commit
• Is there common ground?
• A willingness to co-operate?
• Assistance to prepare for mediation?
• Identify information gaps
• Power imbalance or other issues?
• Cultural requirements and religious holidays

6. THE
IMPORTANCE OF
EXPLAINING THE
PURPOSE OF THE
PRELIMINARY
CONFERENCE
• To avoid misunderstandings / complaints
• Be clear on your role before you commence
• What can be shared? How has mediation been introduced?
• An intake process (Part III, Practice Standards)
• Voluntary, confidential, safe space
• Explain the process / vary the process
• A chance to get buy-in, commitment
• Encourage parties to prepare well for the mediation
• New thinking
• Coaching
• Option A, B and C
• A chance to hear their story
• Identifying “stuck story” and conflict hooks

7. COMMERCIAL
MEDIATIONS
PRELIMINARY
MEETING:
PREPARATION
CHECK LIST
• What do I need to assist my preparation?
• Identifying key documents - bundle
• Chronology of events
• Requires some cooperation in advance
• Statement of Issues over “Position Paper”
• Timeframes for exchange
• Identifying information gaps
• Explain the process / vary the process
• Use of joint session and caucus – get buy in
• Check lawyer/client dynamic, roles and preparation
• Commercial over legal interests

8. MRS SHERLOCK HOLMES

9. THE 5 R’S
• Role
• Relationships
• Rapport
• Realities
• Readiness

10. COOPERATION
IN MEDIATION
-
PREPAREDNESS
• A Study of the Emergence of Cooperation in
Mediation, Poitras, Jean. Negotiation Journal;
Oxford, Jan 1999
• Improving the likelihood of success

11. Positive or
negative
influences on
cooperation in
mediation
Positive Influences
• Desire to find a solution
• Constructive communications
• The desire to reconcile
• Amiability
• Receptiveness to interests
• Acceptance of one’s share of responsibility
• Confidence in possibility of finding a solution
A STUDY OF THE EMERGENCE OF COOPERATION IN
MEDIATION, POITRAS, JEAN. NEGOTIATION JOURNAL;
OXFORD, JAN 1999

12. Positive or
negative
influences on
cooperation in
mediation
2 Negative Influences - preventing the emergence
of cooperation or destroying its foundations.
1. Hostility
Attitudes or behavior that isolates and belittles.
Blaming, reproaching the other person
2. Indifference to the interests of the
other
They didn’t understand my interests,They were too
selfish,They only thought about themselves

13. A 3 STEP
APPROACH TO
ENCOURAGE
COOPERATION
Control demonstrations of indifference
• Pre-mediation coaching (why it is in their best interests)
• Mediator is the bridge
• Discourage indifference in private session
Encourage the acceptance of responsibility
• Help parties to understand their contribution (don’t focus on
blame or fault)
• Normalise mistakes
• Seek acknowledgement that they would have acted differently
had they understood the consequences
• An admission of responsibility helps to build cooperation
Monitor hostility and the desire to reconcile
• Mediators should help the parties to express their emotions in
an appropriate way
• Stopping venting can escalate conflict

14. TOOLS
• Harvard 7 element prep
• Workplace templates
• Core concerns
• Disability and mental health

15. 7 ELEMENTS OF NEGOTIATION
RELATIONSHIP1
COMMUNICATION2
INTERESTS3
OPTIONS4
STANDARDS5
ALTERNATIVES6
COMMITMENTS7

16. CORE CONCERNS PREPARATION FORM
General Core
Concerns
Their
Core Concerns
My
Core Concerns
What I Could do to
Address Their Core
Concerns
What I Could do to
Address My Core
Concerns
Appreciation
Affiliation
Autonomy
Status
Role
Leonard Risken 2006

17. MORE TOOLS AVAILABLE AT
Catherine Davidson’s upcomingWorkshop “The
mediator’s persona: bringing presence and
confidence into focus”
2 December 2019 at Resolution Institute Sydney
https://www.eventbrite.com.au/e/the-mediators-
persona-bringing-presence-and-confidence-into-
focus-tickets-76863870907

18. MENTAL
HEALTH &
DISABILITY
One in five Australians identify
as having a disability
People experiencing mental
illness do not always see
themselves as having a disability
Person-first approach

19. DISABILITY OR
MENTAL ILLNESS
LINK
Educate
yourself and
your staff
Do not
discriminate
Make
reasonable
adjustments
-meet them
face to face
-change your
style to
communicate
Provide
more time
or support

20. DISABILITY OR
MENTAL ILLNESS
LINK
Useful information
• Communication Rights Australia
www.communicationrights.org.au
• Scope Australia
www.scope.vic.gov.au
• Australian Federation of Disability Organisations,
‘Communication with people with disabilities’
website, www.afdo.org.au

21. Australian Federation of Disability Organisations,‘Communication with people with
disabilities’ General tips for communicating with people with a disability
• Speak to a person with a disability as you would speak to anyone else. Speak in an age-
appropriate tone and treat adults as adults.
• If a person with a disability is accompanied by another person, such as a carer, you should
still speak directly to the person with disability.
• Put the person first, not their disability. For example, use the term ‘a person with disability’
rather than ‘a disabled person’.
• Try to avoid negative phrases. Use the phrase ‘people who use a wheelchair’ rather than
‘wheelchair bound’.

22. AUSTRALIAN FEDERATION
OF DISABILITY
ORGANISATIONS,
‘COMMUNIC ATION WITH
PEOPLE WITH DISABILITIES
Communicating with people with a mental
illness
• Mental illness is a health issue that can significantly
affect how a person feels, thinks, behaves and interacts
with other people.
• Mental illness is a general term that refers to a group
of illnesses including, but not limited to:
• mood disorders (such as depression and bipolar
disorder)
• anxiety disorders
• psychotic disorders (such as schizophrenia and some
forms of bipolar disorder).
• One of the common mistakes people make when
talking to someone with a mental illness is that they talk
too much.When we are talking, we are not
listening. The best thing to do is to say less and listen
more.

23. THANK YOU FOR COMING
Catherine Davidson
catherine@cdms.com.au
Nina Harding
office@ninaharding.com