Q. I’ve not been involved in mediation before, what is your first
recommendation?
A. The first part of this answer may seem obvious:
- know your case inside out;
- the 2nd is – know your opponent’s case inside out.
- All of which means:
- Which facts are in dispute.
- Which facts are agreed.
- Which facts are critical.
- Which facts are irrelevant.
- What remedy to you desire, BUT, more importantly –
- what remedy do you NEED.
Q. Explain point 2 above.
A. It may be difficult to do this but try and place yourself into your opponent’s team (in mind
only obviously). It will help you to predict where potential blockages may occur in your
negotiations. It will give you time to think about available options to get round problems
with your opponent.
Q. Should I consider the fact that mediation may not succeed?
A. Yes, so you must consider your Best Alternative To Negotiated Agreement (BATNA) and
your Worst Alternative To Negotiated Agreement (WATNA). This way you will be able
to contrast what you desire to achieve from the mediation with the best and worst
scenarios if mediation fails.
Q. Why?
A. No-one likes to think about failure but refusing to consider the two positions above could
mean that you are approaching mediation with potentially over-optimistic aspirations.
Q. “Desire” and “Need” have been mentioned – please expand.
A. An example may assist. You may be claiming £250,000.00 which will keep your
shareholders happy and may lead to a bonus for you (your desire) but you will also know
that unless you obtain a minimum payment of £100,000.00 you may be faced with your
bankers recalling your loan facilities (your need).
Q. We know that litigation can be a gamble and costly, but what else does mediation offer?
A. Options that are not available to a Judge or Arbitrator. Consider in preparation things that
can be offered to ease negotiation, e.g. future work, extended warranties or future
discounts.
Q. Anything else to consider?
A. Remember that if the mediation is successful there will be an agreement between the
parties – a hand shake and a written document, and in many cases most importantly, the
sting taken out of the dispute, thereby enabling the parties to work together in the future.
www.nwmediationsolutions.co.uk
e. peterwhitman@nwmediationsolutions.co.uk
t. 01254 720278 f. 01254 720278 m. 07774 694964
