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WHAT TO EXPECT

  • Mediation is not a soft option. The day is likely to be tough and parties, as well as the mediator, need to come to a mediation with an open mind and energy!

  • The Mediator needs to have the relevant papers in good time before the mediation day. Try to draft a mediation statement that is not just a reiteration of the pleadings, if litigation has already started. Think about offering to the Mediator a “for your eyes only” addendum if you want to say something to the Mediator but not exchange with the other side prior to the mediation. The Mediator does not need to have every document relevant to the dispute, just the salient ones that will allow him to understand the issues. If you can, try to agree the bundle with the other side and allow each party to put in whatever they need.  

  • The Mediator will almost always want to have at least a phone call with you before the mediation day and often this can be followed up by further calls after the papers have been read and/or a meeting if the issues are complicated or the amounts at stake considerable.  

  • Mediation is almost always “a sharing of the pain” in reaching a compromise rather than the historical “win win” scenario Mediation proponents talked about. Come to the mediation recognising that there has to be a degree of compromise on both sides to get a deal but that that compromise is often better than the alternative of a lengthy and expensive dispute.  

  • Try to have cost schedules ready showing legal costs already spent as well as a projection through to the hearing. Have the client think about the management time and inconvenience that they will save if the mediation settles the dispute. These are real factors that have a value and are worth considering on the mediation day when proposals are on the table.

  • Expect the day to be long and hard work. There will be times when the mediator will be working hard in the other room(s). Use that down time to either work through options that could be turned into potential proposals or have other work available for you to do to avoid boredom. A long time out of your room does not mean that there is a problem, it might be that there is progress being made in the other room which the mediator wants to develop for the benefit of all.

  • There will be a period, normally mid-afternoon, when you think that there is no point continuing. Take the lead from the Mediator when s/he will indicate to you whether there is still a realistic potential for settlement and therefore it is worth carrying on. The Mediator will know best because of the information s/he has been given in confidence by both parties. Trust her/him as s/he will have experience of the process to guide parties as to the prospects of success. 

  • If a deal looks likely start to draft the framework of a settlement agreement as soon as possible. Experience tells us that it takes at least 2 hours to put in writing the details of an agreement from the time it is reached. “The devil is in the detail” and therefore be ready to have a little more work to do in making sure that the agreement stands the test of time. Think through options for stage payments, revised milestones in future project schedules and the need to involve third parties for approvals. Can a full agreement be drafted that night or do you need a binding MOU?

  • Not all mediations end up with a deal on the day. Recognise the progress that you will inevitably have made in any event and openly discuss with the other parties and the Mediator whether another mediation day should be set aside or whether time needs to be given for more information to be obtained and an undertaking agreed that a new date will be sought. Statistically most mediations are now settling, if not on the day, then within 3 months of the mediation and the Mediator will always stay on board by telephone, or in person, to assist the parties to iron out final details and try to reach a final solution.  

 

  • Even if a deal is not reached the parties will have found out more about the other side’s case, they will have seen the “colour of the eyes” of potential witnesses for the other side and they may well have got a better idea of what truly motivates their actions. This in itself is invaluable for any dispute process. In other words, no mediation is a waste of time nor is the preparation for a mediation. Whilst the information exchanged in a mediation is confidential, words spoken will be heeded.

  • Finally, it is often the case that more than one mediation takes place during the life of a dispute. It may be that you have a mediation early on in the dispute to try to establish the parameters of the issues between you, followed by a further mediation later when necessary evidence has been exchanged. Mediation should be a process crafted by the parties and their clients together with their Mediator of choice to fit the dispute in hand. That flexibility, together with the neutrality of the Mediator and the confidentiality of the process, is what stands mediation apart from other ADR processes.