Preparing for Mediation
Prepare Your Client
Your client needs to understand:
- what will happen on the day of the mediation,
- the roles of the people involved,
- the discussions that are likely to take place.
- what they want to achieve on the day
Refer your client to our section on the website here – it will give them a very good idea what happens and what to expect.
Also, your client needs to know the cost of the dispute so far – both financially and emotionally.. When measuring the total cost, bear in mind the wider effects this dispute is having. For instance:
- Make a quick calculation of the managerial (or personal) hours devoted thus far to the dispute by the client, and ask them to start considering where that time and energy could have been invested had it not been consumed with the dispute.
- The cost of this dispute may not just be to the professional life of clients. The dispute may be having an adverse impact on the wider quality of life enjoyed by those involved in it.
- There may also be collateral fallout, affecting friends, family, employees, business partners, and others.
Your client will have to consider the legal costs incurred and to be incurred to understand the financial impact of proceeding to trial. Make sure you are totally transparent about the costs as they are very likely to arise as a topic of conversation on the day. Without this information your client can not assess their impact and effect on their appetite to risk the litigation.
It’s up to you as a professional to decide how deep you wish to delve into these matters at this point, but asking your client to start considering these elements can have a beneficial impact on their expectations and desire for settlement.
When discussing your goals for the mediation day, bear in mind:
- Mediation can be a creative process, and the case can be settled in a creative manner. It is important that your client grasps this concept. Sometimes a monetary value is not what best helps your client.
- The client’s true needs may be different to those filed in the claim. Make sure you have a clear understanding of your clients underlying interests and needs before you enter the mediation room.
- The need to discuss the strengths and also the weaknesses of the case with them and prepare them to discuss these topics with the mediator.
- A well prepared client will increase the likelihood of a good settlement being reached on the day.
- The client has full control over whether or not the matter will settle on the day.
Prepare Your Own Mind
There is one striking characteristic of a mediation that many people don’t realise - boredom.
Understandably there is a lot of waiting to do during a mediation as the mediator effectively acts as a shuttle diplomat moving between the rooms. This means that roughly half of your time will be spent with the mediator out of the room. A mediator will often leave you with something to do and discuss, but make sure that you are prepared – bring your computer and of course any contact details for those with ultimate decision making authority if they cannot be there on the day.
Finally, make sure that you and your client are fully “fueled” – a mediation can often go late into the night and even into the early hours and so you must be prepared for that.
Agreement to Mediate
A copy will be sent to the parties in advance of the mediation – it sets out the terms of the mediation, fees, and the timetable. The mediator will ask the parties to sign the Agreement to Mediate on the day.
The Agreement to mediate will be issue and become binding as soon as we have received confirmation form all parties that they wish to go ahead on a particular day with a particular mediator.
This will be in advance of the mediation. If any party does not pay, the Mediator may not attend, and you may be faced with the other party's costs. Let NWMS know if you are likely to have trouble meting the due date for payment so that we can agree an alternative if possible.
Prepare your client for mediation
Explain the mediation process carefully, and try to alleviate some of the fear of the “unknown”.
Our helpful video may of use here:
and also the section on the website for clients which can be accessed here
It would be useful for you to
- Explain the benefits, and what will happen if the litigation continues
- Discuss the Mediator – explain he is neutral, but is he your friend? Should your client tell the Mediator everything?
- Go through the Position Statements with your Client and examine your client's attitude towards the case; do they have realistic expectations of the outcome?
- Explain the cases weaknesses as well as strengths.
- Are there are any personal issues of which you should be aware - it is better that you know beforehand rather than you being taken off guard during mediation with a revelation.
- Discuss who is going to attend – make sure that whoever attends has authority to settle.
- Let any accountants, or experts know about the mediation and ask that they be on call in case you should need them.
- On a personal level if your client wishes to bring someone not actually connected to the case with them for support, this person will also need to sign the Agreement to bind them to the confidentiality clauses.
- Explain that the discussions between your Client and the Mediator are confidential – the Mediator will always ask what he can repeat to another party to ensure that you can be as candid as possible.
- Explain that the Mediation itself and what is agreed will be confidential.
- Explain that the Mediation process takes time, and that it is likely that there will be times when a way forward does not appear to be possible, what we call the “black spot” but assure them that the process works and that they need to give it time.
- Try to encourage your Client to think of solutions that a court could not order – for example giving the other side products that are of minimal value to you, but are of great value to the other side.
Position Statements for Mediation
The position statement should:
- Set out how the dispute arose, the factual issues involved, any legal issues and quantum,
- Explain the party’s position, and their view of their opponent’s case
- Act as a road map for the mediation bundle, referring the mediator to key documents, pictures, reports. Include a chronology if appropriate.
- Explain where you are up to in the litigation (if any) and if any settlement offers have been made.
- Detail if an ongoing relationship between the parties is important, could there be business in future?
- Keep it concise – 5 – 10 pages
- Include case law only if truly relevant.
- Paginate the bundle and refer to page numbers in your statement as appropriate.
- Ideally, the parties should exchange statements with the other party prior to the mediation.
Delivery of the bundle to the mediator
Remember, not everyone works in the same way, some mediators prefer to receive the bundle electronically and others in hard copy. NWMS will help guide you at all times.
We ask that the bundle be delivered at least a week in advance of the mediation