Prepare! Prepare! Prepare! The Preliminary Conference

By Deborah Lynn Zutter

The preliminary conference is a meeting between the mediator and the disputants held prior to the joint mediation meeting. It is known by other names: pre-mediation conference; orientation meeting; preliminary meeting; intake meeting; pre-mediation session; and pre-mediation conference.

The preliminary conference can take various forms. Some mediators hold one meeting with all lawyers and disputants present. Other mediators hold a series of separate meetings with each disputant and lawyer. Still other mediators meet separately with each disputant, but not with their lawyers. When separate preliminary conferences are held, the discussions may, or may not, be treated as confidential discussions with the mediator not to be shared with other disputants. Preliminary conferences can be held in person, via tele-conference, video-conference or e-mail.

The timing of the preliminary conference varies. Some mediators hold the preliminary conference days or weeks in advance of the joint mediation meeting. Other mediators arrange for disputants to arrive at the joint mediation meeting at staggered times permitting the mediator to meet separately with each lawyer and disputant just before the mediation.

The reasons for holding a preliminary conference are at least as varied as the forms that the preliminary conference can take. Moreover, the different perspectives of disputants, lawyers, mediators and government influence the goals of the preliminary conference. For example, preliminary conferences held pursuant to British Columbia's Notice to Mediate (General) Regulation have pre-determined, legislated organizational goals requiring the participants to consider: whether the pleadings are final and complete; what the issues are; the exchange of information, documents, expert reports, scheduling, and time limits.

Mediators may use the preliminary conference to:

review and sign the Agreement to Mediate;

provide more detailed information about the mediation process to the participants;

describe how the mediator will facilitate the participants' communication and review any procedural rules that the mediator may recommend;

assess the level of conflict and the negotiation styles of the participants;

identify other participants;

discuss the roles that participants will fill during the mediation;

prepare the parties to participate: by allowing participants to vent their anger and frustration separately and in advance of the mediation; by exploring procedural modifications to enhance each party's confidence and participation in the mediation meeting; and, in mediations where representatives of constituents speak at the mediation, by assisting the constituents and representatives to develop processes that provide reliable and effective representation;

rehearse the disputant's story and objectives;

discuss the extent of authority to settle;

plan the exchange of information and documents prior to the mediation;

confirm the commitment to mediate;

determine whether mediation through a specific mediation service or with a particular mediator is appropriate for these participants at this time;

build rapport and trust and reduce anxiety;

explore a party's interests; and

identify a party's position.


Arguments for and against Preliminary Conferences

It can be argued that preliminary conferences are unnecessary; that a competent mediator can achieve many of the foregoing activities during the first stage of mediation. There are other arguments against holding preliminary conferences. Not only does it take time to organize and prepare for preliminary conferences, each conference consumes at least one hour out of every participant's day. As an additional procedural step, preliminary conferences increase the cost of mediation. Preliminary conferences, particularly joint conferences for large, multi-party disputes, pose the same scheduling challenges that mediations do. There is the risk that the matter will settle as a direct consequence of the preliminary conference thereby depriving the mediator, the mediation service and the lawyers of the mediation fees. Where the mediator holds separate preliminary conferences and obtains confidential information, there is the risk that disputants, not knowing what was discussed in their absence, may be more inclined to perceive mediator bias.

There are arguments in favour of holding preliminary conferences. The mediator is able to describe the process that she will use as well as each participant's role. In doing so, the mediator can address specific procedural concerns raised by disputants. Meeting with the mediator allows the disputants to build rapport with the mediator, trust in the process and reduce participant anxiety. Documents, data and reports that will be needed at the mediation to facilitate decisions can be identified during preliminary conferences, thereby avoiding delay or adjournments of mediations. Mediators obtain verbal and non-verbal information about the disputants during in-person preliminary conferences that allows mediators to assess the appropriateness of mediation. Information obtained during the preliminary conferences will influence mediator interventions and the design of the mediation process in order to encourage productive negotiations and avoid harmful situations.

My research outcomes

In 2001, I approached mediators in Australia and in Canada and invited them as well as the disputants and their lawyers to complete questionnaires at the conclusion of their mediations. Fifty completed questionnaires from personal injury, commercial, wills / estates and family disputes were ultimately returned to me. Several of my questions related to preliminary conferences.

A complete resolution of the dispute was reached in each of the mediations in which a preliminary conference was held. For those disputes where a preliminary conference was not held, three did not resolve and one partially resolved. Twenty-two of the 26 lawyer and disputant respondents indicated that the mediator's pre-mediation involvement was either essential or important. Two-thirds of the disputant respondents for disputes where preliminary conferences were held indicated that they were either very satisfied or satisfied with both the pre-mediation work done by the mediator and with the mediation itself.

The majority of mediation participants in which preliminary conferences were held did not perceive mediator bias, even when the mediator held separate preliminary conferences.

While the majority of mediators who held preliminary conferences described themselves as facilitative or interest-based mediators, evaluative and settlement mediators also reported holding preliminary conferences. Although my research did not detect correlations between the mediation model used by the mediator and the design of the preliminary conference, these may exist.

Conclusion

Comments suggest that the essential features of preliminary conferences from the perspective of the disputants are to provide detailed information about the mediation process used by the mediator and to reduce anxiety. While there are numerous goals that a preliminary conference may have, the goals for a specific preliminary conference will depend upon factors such as the nature of the dispute, the characteristics of the disputants, the procedural preferences of the mediator or the mediation service and the relevant rule or regulation.

Based on my research results, I encourage holding preliminary conferences as they seem to increase both resolution rates and client satisfaction.

Deborah Lynn Zutter is a lawyer and mediator practising in Vancouver, BC.