It is often said that if you fail to prepare, you are preparing to fail. Fair enough – but how best to prepare for a mediation?
The short answer is that there is no single “right” way: every civil dispute is different, and mediation preparations should reflect that. All the same, here are some points to bear in mind:
Understand the process – and be realistic about possible outcomes;
Reflect on your priorities and objectives – and decide what you will focus on;
Consider how best to engage with your audience – your opponents and the mediator;
Practical points – think carefully about attendees, position statements, documents, speakers and settlement agreements.
The mediation process
Mediation is not a proxy trial and there will be no judgment at the end (after all, mediation is a form of alternative dispute resolution or ADR). The aim is to help the parties to achieve closure in a private and confidential forum, avoiding the risks, uncertainties and costs (not to say stress and publicity) of a full-blown trial.
Litigation tends to entrench positions, especially as trial approaches. Mediation allows the parties to step away from the fight and engage in constructive dialogue. The desire for vindication can be an important driver - but being heard and understood in a neutral forum enables parties to move beyond that and focus on resolution.
Even if a deal cannot be done on the day, the time isn’t wasted. Log-jams can be broken and foundations laid for ongoing dialogue which can lead to a settlement.
Your own priorities and objectives at mediation
A dispute and the associated litigation may develop over weeks, month or years. A mediation is usually over in a day. You simply cannot cover everything – and nor should you try (that is what litigation and trial are for) – so it is best to home in on the core issues.
Consider both the strengths and weaknesses of your position. Be open-minded. Be wary of red lines which may block progress. Identify the areas in which you may be able to compromise to get a deal over the line.
Your mediation audience
Mediation is a private process - just the parties, their representatives and the mediator - so think carefully about how best to engage your audience.
For your opponents: think about how they view the dispute, their priorities and objectives - and, above all, be ready to listen. Don’t labour arguments they have heard already, or expect to browbeat them into submission. Think about Sun Tzu’s “golden bridge” and avoid backing them into a corner.
For the mediator: be ready to explain – they will need to understand the key issues and areas of conflict between the parties. Don’t swamp them with unnecessary argument or documents but be ready to open up about your position and underlying circumstances (even if you don’t want to share all of it with your opponents). And don’t expect the mediator to take sides.
Practical points when preparing for a mediation
Position statements – are just that, statements of the parties’ positions, so aim to keep them as short as possible and to the point. Don’t treat them as pleadings and avoid the temptation to over-engineer. View them as a starting point for the conversation, not an end in themselves.
Documents – there has been a growing trend for ever larger mediation bundles but this is best avoided. In reality, the parties are usually familiar with the key documents. The mediator only needs those which will be relied on in the mediation or which enable them to understand the dispute. Satellite debates about what to include in a mediation bundle simply drive up costs.
Attendees – whether in person or virtual, the parties (including a person with full settlement authority) should attend, usually with their legal representative. Beyond that, there are no hard and fast rules – it could be a friend or family member for support and assistance, an employee to deal with factual issues, an expert to explain technicalities, or a barrister for a tricky legal issue. All in all, though, less is more – turning up mob-handed is unlikely to win over your opponent!
Speakers – again, there are no hard and fast rules as to who should speak for the parties on the day. If there is an initial joint (plenary) session, the lawyers may well take the lead but a few words directly from the parties themselves can be powerful in breaking the ice. Subsequent breakout sessions with the mediator are usually more informal.
Settlement agreements – think about your desired outcome and consider having a draft settlement agreement ready in reserve. Mediations can be long and tiring so, when a deal emerges, it is hugely helpful for the lawyers to have a starting point for the document which will record the settlement.
This article is for general guidance only and must not be relied on as legal or other professional advice. Anyone engaged in a civil dispute should obtain their own legal and other advice specific to their circumstances and the applicable law at the relevant time.
© Duncan Crine Mediation Limited 17.03.2022