Preparation for mediation

I have just had two mediations in which the parties who had prepared in advance were able to achieve good results. So I am writing to explain more about what this might involve. It is not just getting the paperwork in order. The parties who did well had worked out in advance what their bottom line was going to be and they had also “game planned” how they would deal with the other side’s demands and behaviour during the mediation, using the knowledge acquired from their relationship or working with them. This meant that when the other party made or rejected an offer, the first party was able to keep calm and work out the next step to take in the negotiation.

Remember that a mediation is not a dress rehearsal for the arguments that you might want to put before a judge if the dispute went to trial. No decision is going to made by the mediator. The mediation is the opportunity for you is to communicate to the other party what your position is and how you would like to resolve the dispute.

Here is a checklist of the points that you should consider when preparing for the mediation.

First of all, what are your objectives? What do you really want to achieve and what are the items which you might be able to concede or to give away in order to reach a deal? What are the risks of taking the dispute further? What is the worst possible case scenario if the dispute goes all the way to trial, including the costs that you will have to pay to your lawyers and to the other side? What is the best possible case scenario? What do you think is the most likely scenario and what are your chances of achieving it? Every dispute is different but often the critical issue is how much are you willing to accept or to pay to achieve the certainty and finality that you will obtain from a settlement.

The next point is how are you going to present your case in the most compelling way in order to persuade the other party to reach a compromise with you? Remember the object of the exercise is not to impress the mediator. He only needs to understand what the dispute is about and what your case is. The people you have to persuade are the other party and, perhaps more significantly, the adviser who might also be with them at the mediation.

The most important part is your position statement. This is the document which everyone will read first. It is essential that you do not use it to simply restate your case. Try to sum it up as concisely as possible and then think about how you would like the discussion in the mediation to progress. In this way you can help the other party to understand your point of view and to steer the discussion in the mediation. This is your opportunity to signal to the other side how you think that the dispute should be resolved. The position statement does not have to be very long; in fact, the shorter it is the better.

The other part of preparation is to select the documents you want to send to the other side and to the mediator to support your position. This will not be achieved by swamping the other side (and the mediator) with lots of documents. Often the other side will already be familiar with the key documents (e.g. the contract, the claim and response made by the parties). These will have to be included in order to inform the mediator what the dispute is about.

The other documents you might consider will be in the contemporary emails, reports, drawings or photographs. The most effective approach is only to include the documents which prove or support your side of the dispute. It is very important to try to keep the number of documents to the minimum so everyone is able to focus and concentrate on those which really matter.

These are the 3 points that you need to cover in your initial preparation. But you also need to think about the tactics that you intend to use at the meeting and which will be the most effective with the other party. For example, should you open the negotiations  or wait for the other side to make an offer? If you do make an offer or a counter offer, should you start low or high? How will the other side react if you make a very low offer? This takes us back to your objectives and assessment of the risks.

It is very common for each of the parties to have to reconsider their objectives and risk assessments during the course of the mediation. In fact, this is usually necessary to enable a deal to be made. But thorough preparation in advance will make it easier for you to recognise when the negotiations have reached the point when a compromise is possible on the most satisfactory terms.