Negotiation has been defined as any form of direct or indirect communication whereby parties who have opposing interests discuss the form of any joint action which they might take to manage and ultimately resolve the dispute between themFootnote 1. Negotiations may be used to resolve an already-existing problem or to lay the groundwork for a future relationship between two or more parties. Show Negotiation has also been characterized as the “preeminent mode of dispute resolution”Footnote 2, which is hardly surprising given its presence in virtually all aspects of everyday life, whether at the individual, institutional, national or global levels. Each negotiation is unique, differing from one another in terms of subject matter, the number of participants and the process used. Given the presence of negotiation in daily life, it is not surprising to find that negotiation can also be applied within the context of other dispute resolution processes, such as mediation and litigation settlement conferences.
Negotiation is:
Page 2Conducted properly, mediation can allow all parties involved to move away from legal concepts such as fault and instead, allow for a sharing of people's perceptions and experiences and a determination of each party's actual needs and interests. Such an outcome can often do more to truly resolve the problems or perceived problems which led to the dispute than any formal hearing. During a mediation, both the parties and the mediator have certain responsibilities. The parties must attend, as requested, all mediation sessions and participate in the process in good faith. The mediator should remain dispassionate and avoid becoming partial to one party or view. Further, if expressly agreed, all statements and disclosures made and information and documents provided to the mediator are confidential, subject to application of the Access to Information Act and Privacy Act. Although the actual mediation process may vary depending on the degree to which positions have hardened, the personalities of the people involved and the complexity of the issues, at root, all successful mediations involve a series of five mandatory tasks:
These tasks can be expanded into twelve basic steps[4] -- all of which should be realized for a successful mediation to be concluded:
The role of the mediator varies depending on the personalities of the people involved, mandate given to the mediator by the parties, and the degree of emotions present at the mediation. This results in a spectrum ranging from a mediator who is completely neutral and value-free; to a mediator who takes a more active role in shaping the eventual outcome. The latter borders on mediator as advisor. Regardless of what techniques are used by the mediator to assist the parties in reaching a solution, the mediator is not empowered to render a decision. In various situations, the mediator may attempt to:
Counsel can play as active a role in a mediation as their client is willing to grant them. It must be determined by the disputing parties at the outset of the mediation whether counsel are present at the mediation session and whether they will be permitted to participate actively. In general, counsel can and should act as legal advisors to their clients, both during a mediation and at the completion of the process. Counsel can and should review a proposed agreement to determine if it serves the client's interests. The presence of counsel during a mediation can help defuse instances of power imbalance. In certain cases, where emotions are exceptionally strong, counsel may represent their clients during a mediation session. Such representation places a considerable ethical and professional obligation on the counsel, who must communicate with their clients, understand their perspective, advocate on their behalf and ensure that the mediation process is addressing their needs. Regardless, counsel should instruct their clients about how best to present their point of view. Appropriate body language can be important. For instance, a strong, yet non-antagonistic presence includes such aspects as: facing the person who is speaking; maintaining a comfortable level of eye contact; leaning forward to listen; keeping the voice level; maintaining an open and a relaxed posture -- hands open, and keeping a distance from the other disputant. Counsel should also gauge the reactions of their clients and either suggest breaks when appropriate or, during a break in the mediation, discuss their observations with the client. Counsel are in an excellent position to advise their clients as to their perception of how a mediation is progressing. Counsel can also play a role in defusing a client's anger by ensuring face is saved and by normalizing the feelings if not the behaviour. Further, counsel can remind their clients, if the mediation has reached an impasse, that an impasse does not mean that the mediation is hopeless, but merely that a compromise solution may need to be considered for that particular issue. The mediator has responsibility to ensure that any possible power imbalance or difficulty communicating does not compromise the mediation. In addition to using counsel as representatives, as outlined in section III(E), two other effective methods for reducing an imbalance of power and communication problems are caucusing and co-mediation. Caucusing can be used when an impasse occurs during the mediation which threatens the possibility of a resolution. The mediator holds separate meetings with each disputing party to deal better with the cause of communication problems between the parties and to make suggestions regarding how it can be overcome. Co-mediation is potentially a very powerful tool for addressing balance of power issues. This variant of mediation requires two or more mediators to be equally involved in the process. The rationale for this is to allow those parties which perceive themselves as weaker, to feel more comfortable with the mediation process. For example, co-mediators representing both genders can help defuse the perception of a power imbalance in harassment cases. Page 3
Dispute Resolution Series Practice Module 3 Produced by Dispute Prevention and Resolution Services Department of Justice, Canada I. What is a mini-trialThe mini-trial is in essence a structured negotiated settlement technique. Although designed like an expedited trial, it is actually a means for the parties to hear the other side's point of view and attempt a negotiated settlement. If a settlement is not reached, one benefit of the mini-trial is that the parties have already prepared a significant amount of their cases which will be useful for any subsequent trial. Although there are many variations, the mini-trial in its most common form involves a brief presentation of each parties' case to a panel made up of senior party representatives with authority to settle. The panel is chaired by a neutral, selected jointly by the parties. At the close of the hearing, the neutral recommends a specific outcome. The other panel members then attempt to negotiate a resolution, with the evidence presented during the mini-trial and the recommended outcome serving as a basis for the negotiations. The parties establish the powers of the neutral in the mini-trial agreement and are free to define this role as broadly or narrowly as they wish. Among other things, the neutral may be empowered to:
The mini-trial is an entirely voluntary process. As such, one will enter into a mini-trial only upon consent of all of the parties. If negotiations fail to result in a resolution, then parties are free to proceed to another method of settlement. A hybrid process, the judicial mini-trial, is also used at the provincial level. A judicial mini-trial shares most of the characteristics of the private mini-trial with a few obvious modifications. First, it is suggested to the parties by a judge during the litigation process. If parties and their counsel consent, counsel will present each side's case in an expedited hearing to the judge who renders a non-binding opinion regarding how the dispute should be resolved. Parties then attempt to negotiate a settlement based upon that opinion. If settlement is not possible, the parties may continue with their court action. The judge who conducts the mini-trial will not sit as the trial judge and will keep his or her opinion of the case confidential. Judicial mini-trials are currently used in Alberta [1] and in British Columbia [2]. II. Characteristics of a mini-trialA Mini-Trial is: Voluntary: Parties must expressly agree to attempt settlement through the mini-trial process. The agreement to undergo a mini-trial is generally set out in writing. Private: Despite its name, the mini-trial is a non-judicial, expedited procedure generally used in the commercial context. A panel, comprised of a senior executive from each party and one neutral, selected jointly by the parties, hears submissions from each side. Informal: There are no fixed procedural or evidentiary rules governing the process. Rather, the parties agree to a hearing schedule and decide upon a set of governing rules concerning discovery, evidence and witnesses. These rules are set out in the mini-trial agreement. Assisted: Following each party's presentation, the neutral panel chair issues a recommended, non-binding solution. The party representatives from the panel and their chosen advisors then attempt to negotiate a settlement based upon that recommendation. The neutral may be invited to serve as mediator or facilitator during those negotiations. Consensual: Generally, there is no obligation to settle during the mini-trial, nor is the opinion of the neutral binding. Rather, resolutions are achieved through consensus. The parties are free, however, to structure the process otherwise. Informative: Despite the fact that there is no guarantee of resolution, the preparation and execution of the mini-trial gives the parties a better understanding of their own case, as well as an understanding of the opponent's position. This is quite useful if the parties proceed to trial. Confidential: The mini-trial is generally a confidential process. In the federal context, the restrictions on divulging information and the requirement to disclose information pursuant to the Access to Information Act and Privacy Act must be complied with. For further information about the application of these Acts, please refer to the section entitled “Confidentiality: Access to Information Act and Privacy Act ” found in the Dispute Resolution Reference Guide.III. How to use the mini-trial1-When is a Mini-Trial Appropriate?Before discussing the possibility of mini-trial with other parties, one must first ensure that one's own internal management and key personnel are amenable to the process. This begs the question, when is a mini-trial appropriate for the federal government? First, as one must ask with all ADR procedures, does the dispute involve matters of public law, policy or legal precedent for which a final disposition from the court is required? If so, then a mini-trial is inappropriate. Second, do the parties wish to retain control over the dispute resolution process? If the parties want a greater degree of involvement and control over the outcome than is typically allowed in an adjudicative process, such as arbitration, then a mini-trial is an option. Third, is the dispute substantial enough to justify the effort and expense required for a mini-trial? Although the mini-trial is indeed faster and less expensive than litigation, it nevertheless entails a significant amount of preparation and cost. Have the parties first attempted to settle the dispute through face-to-face negotiations? Could this case be settled though negotiations at the senior management level? If so, then the cost of a mini-trial can be avoided. Fourth, is the case comprised predominantly of disputed questions of fact? Questions of fact are always more amenable to consensual resolution processes than questions of law. Mixed questions of fact and law may also be appropriate for mini-trial if there is no need for a definitive judgment on the law. It is better if the legal rules concerned are relatively clear so that a resolution of the disputed facts may clarify the legal outcome. Fifth, do the parties have a business relationship that they wish to maintain? The relative speed of this process and the cooperation required of the parties make it a useful tool in preserving a working relationship. Sixth, are there numerous parties to the dispute? The formal structure of the mini-trial is a positive influence in multi-party conflicts. 2-Initiating the Mini-Trial ProcessOnce it has been determined that a mini-trial is appropriate, one must obtain the concurrence of the other party(ies). In general, a mini-trial is introduced later in the life of a dispute than other ADR processes, even after the commencement of legal proceedings. Nevertheless, since one of the primary benefits of the mini-trial is to save time and expense, it is best to initiate the process before a significant amount of the legal costs have been incurred. Generally, it is legal counsel who suggests the use of the mini-trial. There is, however, an advantage to be gained in terms of the success of future negotiations if the client contacts the other party(ies) to suggest that perhaps they could “work something out together”. One obstacle to initiating the process is the familiarity of the parties and counsel with the mini-trial. Obviously, parties will only agree to the process if they are satisfied that it is a fair and workable procedure. If the client or opposing party(ies) are uncertain, one could provide them with advice or literature on the benefits of the mini-trial. The process is far more likely to be successful if the parties are comfortable with it and knowledgeable of its advantages and disadvantages. 3-Identifying Party RepresentativesIn addition to client personnel who have been involved in the dispute and will assist counsel in preparing for the mini-trial, a representative of senior management must be selected who will sit on the panel with the neutral to hear each party's submission. This representative will also be responsible for negotiating a resolution with the other party representatives following the hearing. This representative should ideally:
4-Choosing the NeutralAlthough one can conduct a mini-trial without the assistance of a neutral, the process is greatly enhanced by having the neutral present. The neutral may:
The powers that the neutral exercises in any given mini-trial are determined by the parties and expressly laid out in the Mini-Trial Agreement. The nature of the role that the parties wish the neutral to play (eg. non-binding arbiter, mediator, technical expert?) will help determine where the parties want to look to select this key participant. The parties should clarify between themselves what this role will be before commencing the selection process. 5-Drafting the AgreementThe Agreement specifies the rules and procedure which will govern the mini-trial. Drafting the Agreement is obviously a critical step in the process, one which should be attended to carefully as it will influence the success of the process. One of the primary advantages of counsel and clients' role in crafting the Agreement is its resulting flexibility. Each element of the procedure may be structured by the parties to best fit the dispute at hand. Counsel and party representatives should all participate in drafting the mini-trial agreement. The neutral may also lend important process assistance and may be given the authority by the parties to make a decision on any disputed procedural step. An experienced neutral may also be able to advise parties and counsel on what types of procedural choices work best. What follows is a list of the essential elements to be included in a Mini-Trial Agreement.
A sample mini-trial agreement is found in this Module as Annex B. It includes some of the procedural details that will have to be addressed when drafting your own mini-trial agreement. 6-The Role of Counsel in a Mini-TrialThe role of counsel in a mini-trial is not unlike that during litigation. In general, counsel will prepare their client's case, handle discovery and the development of witness statements and position papers to be exchanged, and make an abbreviated presentation of the case before the panel. Unlike litigation, counsel also plays a fundamental role in drafting the Mini-Trial Agreement. Counsel generally plays the role of advocate during the mini-trial. This differs from the more conciliatory or settlement-oriented role that counsel may play in other ADR procedures such as mediation or negotiation. In the mini-trial, it is the client representative who will be responsible for negotiating a settlement. IV. Advantages of the mini-trialAs mentioned, the mini-trial is a settlement technique that aims to facilitate efficient and effective resolution of civil disputes. A few of the advantages to be gained through the mini-trial process are as follows:
V. Disadvantages of the mini-trialPossible disadvantages of the mini-trial are as follows:
VI. Questions and concerns regarding the process
Appendix A: Practitioner's checklist
Appendix B: Sample mini-trial agreementBETWEEN Her Majesty the Queen in Right of Canada AND (the “Contractor”)Whereas Her Majesty and the Contractor are parties to a contract dated , and identified as (the “Contract”); and Whereas a dispute has arisen between the parties concerning the Contract; and Whereas the parties wish to attempt to resolve this dispute through a mini-trial; Therefore the parties agree as follows:
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