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Making the most of mediation

By Gary Webber


Introduction

This article is about doing one’s best, as a representative of a party at a mediation meeting, to ensure that it is successful. It contains a number of practical tips for the meeting and preparation beforehand.

Prepare well

A mediation meeting is not a trial but it still requires careful preparation – of a different type. Have a conference with the client for the express purpose of discussing strategy. Don’t expect just to turn up on the day and wing it. If counsel is to be present at the mediation then he or she should also be present at the conference.

In the pre-mediation conference make sure that you discuss both the strengths and weaknesses of the clients’ case. Work out the best and the worst-case scenarios and some in between. Try to work out what the obstacles to settlement might be – either from your own side or from the other. Try to ascertain what the drivers of the dispute really are. Above all find out what your clients really want, what they can live with and what possible solutions there might be to resolve the dispute. Don’t be hamstrung by the pleadings and remember that in a mediation the parties can settle all sorts of issues that are not formally before the court. Even more importantly, they can agree solutions that a court cannot order. Think about what those might be.

Manage expectations

Although mediation is usually successful, those that fail often do so because one party has unrealistic expectations of the outcome. Don’t let the clients delude themselves into thinking that they can walk out with a settlement of half a million when on any view the other side is unlikely to pay more than a few thousand.

If you think that you might propose a deal which is unusual, or about which the other side would need some prior knowledge, think about letting them know in advance. For example, a tenant may wish to offer his landlord the opportunity to buy him out. That in itself is not unusual. Quite a few property disputes are settled by one side buying out the other. However, in order for this to occur both sides need to have a good idea of value. This may require research prior to the mediation.

Documents

Ideally a mediator will receive two documents. The first will be a neutral case summary much like one would prepare for a case management conference – setting out the basic facts and issues on one side, or at most two sides, of A4. (Don’t use a small font. Most mediators have got to that stage in life!) The case summary can be a joint document. However, it is often cheaper and simpler if each side gets on with its own document. Indeed, there can sometimes be an advantage in this. It may highlight the fact that each side has a different view as to what facts and issues are important.

The second document will be a confidential position statement, i.e. a statement that will not be shown to the other party. This allows for greater frankness. It means that the mediator can begin to think constructively about the dispute, the possible obstacles to settlement and the possible solutions before the start of the day. This document might set out:
  • The real drivers behind the dispute – on both sides.
  • What the clients really want.<
  • The possible obstacles there might be to settlement.
  • The legal costs so far; and the extra costs required to take the matter to trial if the case does not settle.
  • What the possible solutions might be – perhaps the ideal solution from that side’s point of view and some others that might be more realistic.
It is often a good idea for the confidential position statement to be written by the clients themselves. The mediator can then get a real flavour of what is motivating them.

Remember that what matters is content, not form. Don’t waste time and money on posh headings and getting every word right. Think twice before instructing counsel to draft a position statement – partly because of the extra cost and partly because counsel is yet a further stage removed from the clients. Remember the confidential statement is not a pleading / statement of case such as one uses in court. No one is going to be bound by it. It is just there to help the mediator prepare for the mediation.

The mediator

Should the mediator be a specialist in the subject under dispute? Mediators are trained to deal with all sorts of disputes and the mediator does not usually have to be a specialist in the relevant area of law. What really matters is his or her ability to mediate. However, there are advantages in some fields. For example, parties to construction disputes usually like to have a lawyer or surveyor who specialises in them. Where the mediator is a specialist a lot of time can be saved in explaining basic concepts and technical terms; the mediator may be able to think of particular solutions appropriate to that area of the law and can be particularly helpful when you are drafting the settlement.

Using counsel

Different people have different views about whether or not to use counsel in mediations. There are pros and cons. Frankly, some barristers are worse than useless at mediation work and they do scupper the chances of success. By training and temperament many are fighters who just can't get away from their primary skill of advocacy. They interrupt when the mediator is trying to speak to the client either because they think they should do all the talking or because they feel they need to protect the client. Or they simply just can’t stand sitting there without speaking!

Others however are excellent. They really understand that mediation is about finding a solution that belongs to the clients and is not about "winning". In particular, barristers can bring to the mediation that other quality for which they have always been valued – independence. They may be able to make a more realistic assessment of the likelihood of success should the case proceed to trial. Be careful when using counsel and select well. Don’t automatically use the barrister that you would use at the trial.

If you have instructed counsel think about whether or not you also need to be present. Are the extra costs really justified? If you are going to be there, why do you also need a barrister?

At the mediation meeting

Don’t expect the mediator to do all the work; and don’t just sit there taking notes of everything that is said. This is completely pointless. You will not be able to use them afterwards. The mediation is without prejudice. It is true that in one case the parties inexplicably waived privilege and, on the issue of costs, proceeded to have a dispute about who was the most unreasonable at the mediation! This is madness. The whole point of mediation is to create a safe space in which parties can talk openly, without the fear that what they say will later be used against them. It will of course be necessary to make a note of the important points as you go along but if all you are doing is taking notes you are being of no use at all.

Instead of being a glorified and expensive note taker you should contribute fully to the process. The mediator needs your assistance. You need to help manage expectations, calculate outcomes, assess the merits, quantify litigation risk, advise as to the likely costs of further proceedings, point out realities and identify underlying motives. You should also be thinking of your own ideas for settlement. Look for those offers that might be cheap to your client to give but valuable to the other side to receive; and, forgive another cliché, think outside the box.

There are often long periods of time in mediation meetings when the mediator is with the other party. Use this time fruitfully. Many mediators will give you and your client a specific task to carry out during this period. However, even if he or she does not do so you should be working on one or more of the above points.

Some other things to avoid:

Don’t let your clients dig holes for themselves and certainly don’t do it for them. For example, avoid using phrases such as “I wouldn’t advise my client to accept a penny less than …”. If the reality is that a settlement below that figure is going to have to be accepted, you have made life a whole lot more difficult.

It goes against the grain but don’t be obsessed by legal rules and pleadings. Sometimes it is best to put the files under the desk, both literally and metaphorically. Although you may wish to use a legal argument to persuade the other side of the weakness of their case, at the end of the day what mediation is about is not winning or losing but reaching a settlement that, so far as possible, satisfies your clients needs.

Don’t be aggressive. This will often scupper mediation. It is perfectly possible to be assertive and firm without being nasty. Indeed the best negotiators are usually those who are co-operative.

Conclusion

Essentially the role of the representative at mediation is to help the mediator to help the client. This requires active participation and the avoidance of various dangers that can make things worse.

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