Preparing for Mediation

These notes have been prepared to make sure your Mediation day can run as smoothly as possible and can achieve the best possible result. Effective preparation is an important stage in the process and can significantly improve the likelihood of reaching agreement. It may even impact the terms of settlement.

Apart from the day itself, as set out in our Mediation Agreement, there are two key considerations in preparing for mediation:

1. Preparing your Case so that you are ready to deal with anything that arises; and
2. Preparing the Mediation Bundle so that the Mediator has a clear understanding of what the dispute is about

First, the elements of preparing your case:

1. You need to decide who will be at the Mediation and who will present your case. Will you do it yourself or will you be represented? There needs to be a decision-maker who has full authority to agree and sign-off any terms of settlement that may be reached. If you are the decision-maker but want to be represented also, that is fine – you will both need to be there. In the case of a company, this will typically be a director who has the authority to speak for and make decisions for the whole company or board. If you genuinely need to bring an expert that may also be acceptable but the general guidance is to keep the numbers as low as possible;
2. You need to make sure that everyone who will be attending knows exactly what their role will be and what purpose their presence serves. Duplication and extra numbers will rarely help on the day. Keep it brief, keep it factual and keep it calm. Understand how the day will run and who will lead the presentation. Remember, this is Mediation – not litigation;
3. Know your case. Have all the facts at your fingertips. Knowing the key elements of your case well and being able to present them in a clear and constructive way, will allow you to make the most of the opportunity that Mediation brings. Do you have expert reports available? Can you support and justify any claims or statements you will be making?
4. Consider exactly what is important to you and what you would like to achieve from the Mediation. This will not be a Courtroom hearing and so legal, commercial and personal issues can all be aired. Understand the strengths and weaknesses of your arguments and understand which parts of your case are important and which are less so. Mediation typically involves some compromise on both sides and so holding out for something that isn’t really important to you can obstruct what would otherwise be a really good settlement. Understand how you would feel if the dispute didn’t reach a settlement at all and you were faced with the prospect of litigation. Have you considered the costs involved? Have you seriously evaluated your prospects of success? You will have the opportunity in Mediation to assess any settlement proposals in the light of these questions. Dig deep into your real feelings about the case and know before the day starts, those parts that are ‘must haves’ and those on which you can afford to be flexible. The more common ground you can find with the other party, the less there will be to argue about.

Second, preparing the Bundle for the Mediator:

1. If the dispute has already reached the Court proceedings stage, most of the arguments on both sides will already appear in the Court documents (the pleadings). It will be helpful if you can agree a bundle with the other party that includes all the pleadings. If each party wishes to provide a concise case summary also (a non-legal document) please try to limit each summary to maximum 5 x A4 pages.
2. If the dispute has not already reached the Court stage, the case summary becomes more important. It will ideally include a background to the case; who you think is in the wrong and why (liability); the value of the claim (quantum); the key issues that appear to be in dispute (there will normally be one or two sticking points); details of any negotiations or discussions to date; details of any admissions, offers or proposals for settlement made already on either side; if there is a fundamental part of the claim that relies on documentary evidence, please also include the document/s; details of what you wish to achieve through Mediation; details of what you think the other party wishes to achieve. Please try to limit the case summary in this situation to 10 x A4 pages, plus any supporting documents.
3. Any papers that are genuinely relevant will help the Mediator to understand what the dispute is about and what each of the parties is looking to achieve. Please include all Court papers (pleadings) if the case is already at the Court stage together with any relevant witness statements, expert reports, etc. The parties may also bring other documents to the Mediation to be used on the day but some notice of that will assist the Mediator in advance. Please try to agree the overall bundle between the parties a minimum of 5 working days before the Mediation day.
4. Please don’t be to too concerned if you miss something from the bundle and please don’t worry if you’re not sure whether to include something or not. Wherever possible, the Mediator will speak to each of the parties by telephone prior to the Mediation day. This will be an entirely confidential conversation with each party and is designed to eliminate any surprises; to ensure that the parties are ready; to deal with any outstanding questions relating to the document bundle; to develop the general format for the day – for example joint meetings or separate rooms or the format for video conference mediation; and to identify other parties who may be present and who may need to sign confidentiality agreements.

And finally, remember your Mediator’s role is to help the parties arrive at a settlement that both parties can agree to. Be open with your Mediator – trust your Mediator. They are not there to judge you, to take sides, to give advice or express opinions on the merits of your case. Everything you say to your Mediator is confidential so give them the best possible chance of helping you move the Mediation process forward to a successful conclusion.