How to prepare for a Mediation
The mediation process starts well before the mediation day. Good preparation is key to success.
Agree to mediate: One of the hardest parts can be to agree with the other side that mediation should be attempted. If you have offered mediation and received a rejection from your opponent, or if your client wishes to reject an offer of mediation, there could be significant costs consequences. See more on this in “Mediation – Costs, Case Law and Consequences” by Tom Blackburn.
Who, when and where? The second hurdle once the concept of mediation is agreed is for you to agree who the mediator should be, and where and when the mediation should take place. Sometimes this can prove a challenge. If the identity of the mediator can be agreed, don’t be put off if the date or location of the mediation proves difficult to agree. Mediators will generally be very happy to “mediate” on the arrangements. If agreeing the name of a mediator proves difficult, many mediator panels offer to help by appointing an appropriate mediator for you. See more on this in “Choosing a mediator” by Claire-Elaine Arthurs.
Your client’s mediation team: You need to work out what the best team for your client will be for the day. The goal should be to surround your client by the people that are going to best support them to make the best decision about the way forward. Succesful mediation teams come in all shapes and sizes, from clients attending alone with solicitors back at the office available on the phone, to full professional teams including solicitors, barristers and experts. See more on this in “Working with counsel and experts in mediation” by Duncan Crine. Most mediators will be happy to act as a confidential sounding board to assist you in working out who should be in your client’s team.
The other side’s mediation team: Sometimes it will be critical for your client to understand who will be coming from the other side. The mediator may be able to help by arranging to share information about the proposed team, or you may be able to do this direct. The earlier you share your proposed team with the other side, the earlier you are likely to have an idea of their team. If you or your client has a particular concern about who attends from the other side, then it is a good idea to share this with the mediator at as early a stage as possible.
Unexpected attendees: Precious hours are often wasted on at the beginning of the day where poor preparation results in unexpected people arriving on the mediation day, or people who one party thought should be coming on the other side not showing up. Unexpected or missing attendees can even derail the whole process. Given time and notice, mediators can help in managing expectations in advance to ensure that the mediation day is as productive as possible from the outset.
Availability: Especially when you are dealing with a big team, it is a good idea to make sure the date is fixed in everyone’s diary. Think about who you might want to speak to as part of your preparation, who you or the client might want to attend, and who you or the client might want be available on the phone during the day.
Authority: It is important make sure that someone on the team will have sufficient authority to do the kind of deal that your client might be prepared to do. Work out what the steps will needed to be in the event that something unexpected happens on the day such that additional authority is required. Think in advance of signing formalities – who needs to be available in order to execute any agreements reached? Might written authorities or power of attorneys be required? Will it be possible to enter into a binding agreement on the day (for example, might some kind of ratification be required)? Let the mediator know in advance if there might be a specific process that needs to be followed in order that they can assist in managing everyone’s expectations.
Pre-mediation call with mediator: Many mediators will get in touch shortly after their instruction and suggest a confidential pre-mediation telephone call with each side’s solicitor. This can really help to make the mediation day as productive as possible from the outset. This conversation will enable you to take the mediator “up in a helicopter” to explain the big picture as your client sees, to identify any perceived obstacles to settlement and to talk through any administrative or other concerns that you or your client might have about the day. As every mediator and every mediation is different, you can also find out more about the mediator’s style and how they envisage the day going. In the event that your mediator doesn’t suggest a pre-mediation call, this might be something to initiate yourself.
Mediation bundle: It often possible to agree the content for a mediation bundle and how this might be shared (for example in soft copy by email, via a data room, in hard copy). There is no firm rule as to what needs to be included. The pleadings, key documents, key financial summaries/valuations and the key letters between clients and solicitors are a good place to start. If either team think that a document might be helpful to the decision-making process, then it is usually included. Try and be selective and focussed so that you don’t inadvertently end up with a trial bundle. Don’t get hung up if it proves difficult to agree an index – as a last resort, each party can provide their own documents. If you have any doubts about what to include, or agreeing an index is becoming an additional hurdle, then speak to your mediator.
Mediation summary: Prepare a mediation summary for your client (sometimes known as position statements or case summaries) or respond to a questionnaire sent to you by the mediator. This can be something that is confidential “for the mediator’s eyes only” or can be something to be shared in advance with the other team. If preparing something to share, this is a real opportunity to begin doing things differently. Goal should be to educate the mediator and to start to build a platform on which the clients can stand in order to have their difficult conversation. In circumstances where the client’s positions are set out in pleadings or correspondence, there is no need to repeat them. You are not aiming for trial advocacy. Ideas to include might be:
- An expression of a willingness to negotiate and settle the dispute
- A short statement outlining type of work/business of your client
- A chronology of events if relevant
- A dramatis personae if relevant
- An outline of the legal and factual issues as your client sees them and an acknowledgement of what the other team are saying
- The issues that you think need to be addressed at the mediation
- Suggestions of common ground and areas of difference
- Any thoughts on options for settlement
- The negotiation history including any offers
- The court/arbitration timetable and costs should the dispute remain unresolved
Prepare the ground: Make sure that you have all the information that your client might need to have a meaningful discussion (i.e., figures, details of possible processes, input from third parties etc). Think about whether the other team have enough information to take part in that discussion. If they don’t – think about whether it would be helpful to provide things to them before the day and what the most helpful workable format for this might be.
The settlement agreement: It is never too early to do a rough draft of the settlement agreement. Coming to the mediation armed with a template for the kind of agreement that might be reached is incredibly helpful. If there are different options that might be viable, thinking through drafting for each in the calm of your office in the weeks before the mediation can be much less stressful than drafting under pressure on the mediation day. If additional expertise might be required as part of the drafting phase (for example from conveyancing or tax experts), it is helpful to get these people lined up in advance.
Technology: Don’t forget to think about technology so that you have the necessary computers, wifi and printer available on the day when you need them.
About the author: Former Head of Real Estate Litigation at Clifford Chance, since 2012 Mandy Lenton has been a full-time mediator. Mandy is a member of CEDR’s best practice group, CEDR Chambers, and is a lead member of the CEDR Training Faculty.