Guidance for parties preparing for mediation
Guidance for solicitors preparing for mediation
Recognise that mediation isn’t a court. You will have a skilled mediator and may have your lawyer or other advisors present, but at the end of the day the decision to settle will be down to you and the other party or parties. This leaves you in control of the eventual outcome.
But you can ‘have your day in court’ in the sense that the mediator will almost certainly give you the opportunity to address the other party.
It is human nature to focus on how you got into this situation ‘whose fault is it?’. That is valid, but try and focus more on how you can move forward. Try and think of more than one way that the dispute could be resolved – the more models you have ready, the more likely you are to resolve the problem.
In a court, your winning or loosing will depend on legal arguments. In mediation the legal arguments remain equally valid. But you can add to them commercial needs and sometimes even personal factors.
Before you get to the mediation make sure you have a clear understanding of your legal strengths and weaknesses; what the problem has cost you so far in legal fees; what it will cost to get to court. Also think through what going to court might mean in terms of stress for you or your family/colleagues, or time taken in preparing. Go to the mediation having already thought through ‘what is the best alternative to not reaching an agreement?’ and ‘what is the worst alternative if we don’t reach an agreement?’
You might have a spouse or family member or friend whose advice you trust and who is aware of the situation you are in. Let them know when you are mediating and take their phone number so that you can get their sounding if you think it would be helpful.
If it is offered, have a brief telephone chat with the mediator before the day. That will allow you to establish a rapport with the mediator and ask any questions you have about how to get the best out of the day. Try and focus on that rather than the rights and wrongs of your case – save them for the mediation day. Remember, anything you tell the mediator remains confidential unless he has your permission to tell the other side.
At an early stage in the mediation you will be asked to make an opening statement. This can be extremely powerful and you should think carefully about what you want to get over to the other side. For example, you might think that the other party is a thief and a cheat. Will it really help you reach a settlement if you say that? Another example, sometimes an apology, or recognition of distress, can have a major impact on another party. Whatever you say in mediation is confidential and without prejudice so it cannot be used against you in court (but, if you have one, be advised by your lawyer).
Listen with care to what the other party or parties are saying. You might learn a great deal about the impact of the dispute on them and get clues about possible settlements.
Try not to be confrontational. If you treat the dispute as something you are both/all there to resolve then the mediation is much more likely to be successful.
Thank of things you can offer that might not cost you much but which have a positive impact on the other side of the dispute.
Be flexible. Deals are more likely to be ‘It isn’t exactly what I wanted, but I can live with it’ rather than ‘Good– I’ve beaten them good and hard’.
If you settle, insist that the settlement is put in writing. This should ensure that there are no further misunderstandings about what was agreed. If the settlement unravels, in most cases a court will enforce a written mediation settlement agreement so you don’t need to go right back to the beginning of the dispute.
Prepare for a hard day, but keep in mind that 75-80% of mediations reach a settlement.
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Consider if it is reasonable to refuse mediation. See Dunnett v Railtrack [2002] EWCA Civ302 and Halsey v Milton Keynes NHS Trust [2004] EWCA Civ 576 and other cases. Even if you win a case in litigation, unreasonable refusal to mediate may have adverse costs implications for your client. But don’t mediate if you want to create precedent or you need immediate injunctive relief.
Choose a suitable mediator. Different mediators have different personalities, styles and experience. Make sure the mediator is trained and accredited by one of the major mediation bodies.
Get the logistics right. Location can play a big part in reducing tension. Don’t try and squeeze a whole-day matter into a three-hour mediation. Make sure that the right people are coming from your side and that they have all the authority they are likely to need. Keep your team tight, no passengers. Think about human needs (travelling or meal requirements etc.)
It is essential for the client to have authority to settle on the day.
If someone is not attending the mediation but might need to be consulted (example: an insurer) make sure that they are aware that the mediation is taking place. Also ensure that you have their contact details, including ‘after hours’ contact.
Prepare a ‘read-in’ bundle that will allow the mediator to get a good flavour of the matter in dispute. If the bundle can be a joint one, so much better. A chronology and a translation of any technical terms are useful in this bundle.
Prepare for the mediator a brief written summary. This should give background to your client and the people involved; a chronology; an outline of the legal issues; an outline of the commercial differences and factors; an outline (if any) of any personality issues that are likely to impact on the mediation. Identify common ground; identify your strengths and weaknesses and the strengths and weaknesses of the other party/parties. Outline the court timetable (if applicable) and any previous attempts that have been made at settlement. Quite often these summaries are swapped between the legal advisors before the mediation takes place. If this is to happen, consider that there might be parts of your submission that you might prefer to send ‘for the mediator’s eyes only’.
Do talk openly to the mediator before the mediation so that he/she can best prepare for the day. Do not act as a block between the mediator and your client – it is quite often helpful for clients to have a short telephone conversation with the mediator before the actual mediation day. This allows both client and mediator to get a feel for each other and for the mediator to re-assure your client about the safety and success record of the process so that your client is better prepared.
Before the mediation day, think through options with your client. Try and think of more than one model of what settlement could be. Consider with your client the questions ‘what is the worst thing that could happen if there is no settlement?’ and ‘what is the best alternative to no agreement?’. Try and consider things you could offer in the mediation which have low value/cost to your client but might have a higher value on the other side (example: an apology or a recognition of trouble caused).
Turn up on the day with appropriate back-up material including details of costs to date and likely costs to trial/through trial.
Prepare a concise opening statement, preferably a joint one by you and your client.
Listen carefully to the opening statement made by the other party/parties – it often gives clues regarding priorities and ways forward.
Encourage your team to take a holistic approach, not being overly dependant on legal or commercial or personal issues, but rather balancing all three. Don’t try and jump to the ‘deal’ in the first few minutes- let the mediator draw out and understand the factors on all sides.
Use the confidentiality and ‘without prejudice’ aspects of the mediation to test ideas. There isn’t a deal until there is a deal in writing, so ideas can be modified as the mediation progresses.
During the mediation be prepared for large chunks of time when the mediator is with another party and you are left alone with your client. Have strategies for using this time creatively.
Be open with the mediator when discussing litigation risk and other factors. All your meetings with the mediator are confidential and you can use the mediator to test solutions.
Be pro-active with the mediator. Be prepared to listen to suggestions from the mediator (example: that there is a lawyer to lawyer meeting). Don’t worry if the mediator wants a private session alone with your client – the mediator has no power to force your client to do anything and nothing will be signed off without your recommendation having been given to your client.
Be prepared to change your view.
Be prepared for a hard day. You will have three roles – firstly as an advocate, secondly as an ‘advising wise head’ or ‘shoulder to cry on’ for your client and thirdly, if there is settlement, as drafting lawyer putting together a written settlement agreement.
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