The traditional model for a mediation is for there to be a meeting with both parties and their solicitors present. The mediator will introduce the parties, explain the mediation process and allow both parties to make a short opening statement on the merits of their case, before the parties return to their rooms for further private meetings with the mediator,
On some occasions the mediator will decide to dispense with the opening meeting and commence the mediation with the private meetings
The Opening Statement
The mediator will ask the solicitors to keep their opening remarks brief and not to go over 10 minutes. Even though the statement is short it is an important part of the process and care should be given to what and how you want to use this statement. For example, do you want to:
- Stress either the strengths of your case or the poor prospects of success of the opposition;
- Explain why contrary positions are held in good faith;
- Dispel that your client is a “bad guy” and explain why the client genuinely holds those beliefs;
- Offer an apology to ease the negotiating process:
- Express the desire to continue a commercial relationship
- Introduce other items that a court could not consider
Consider if you want your client to say anything. It can be very effective.
Private Meetings with the Mediator
Formerly called a "caucus", these meetings are the heart of the mediation process.
These meetings are confidential and so your client will have the opportunity to speak frankly with the mediator, to express concerns, wishes, and to receive information, offers, and challenges to your perceptions. The information will not be shared with the other party without express permission.
During these meetings it is likely that the mediator will:
- Find out the facts;
- Discuss the strengths and weaknesses of your client’s case;
- Robustly challenge the reality of the case;
- Consider the costs incurred to date, the costs to trial and what would be recovered on a costs assessment;
- Discuss the best and worst case scenarios;
- Undertake a costs risk benefit analysis;
- Consider the offers that have been made and encourage you to make counter offers.
You need to consider how much you need to prepare your client for these questions.
Always listen to the information that the mediator brings you relating to the other sides case and be prepared to reduce you prospects of success accordingly.
The Settlement Agreement
If the mediation is successful, the mediator will get the parties to sign an agreement to record the terms of settlement before the parties leave. If there are court proceedings then there will be a consent order, or more commonly a Tomlin Order. If proceedings have not yet been issued, then it will be in the form of a settlement agreement.
As mediations often settle out of office hours, it is useful to bring a part drafted agreement with you to save time once settlement has been reached. If the agreement is going to involve some specialist clauses, then it is useful to have discussed these clauses with those specialists in your firm and bring precedents or part drafted clause with you.