06 Jun Preparing for Mediation
I am sometimes asked by instructing solicitors when I make my initial telephone call: “Will it be OK if I just send you a copy of the pleadings and my client’s position statement will follow?”
The pleadings are a useful background for the Mediator, but they should be read in conjunction with a short Statement for the Mediation that highlights the key points for the relevant party. This greatly assists the Mediator when reading the bundle. Ideally only the most relevant parts of the pleadings should be sent.
Often I receive several lever arch files containing numerous detailed exhibits that are never opened on the day of the mediation. By all means have them to hand at the mediation to refer to if necessary. However including them in the bundle can result in “information overload” and actually inhibit settlement as the parties can reach “analysis fatigue”.
It is better to keep the focus on the “bigger picture” of making a deal.
Other salient information the Mediator will want to know is:
- Who will attend the mediation, their role and position or relationship to others.
- Details of offers, negotiation meetings and mediations. You would be surprised how sometimes details of Part 36 offers are not highlighted to the mediator;
- Costs to date and estimates of costs to come;
- If any costs sharing or litigation funding agreements are in place;
- What the party would like to get out of the mediation (this is recognised as capable of changing on the mediation day);
- Relevant information about the skills, character and personality of the individuals attending the mediation;
- Any sensitive issues;
- What in the view of the party is the root cause of the conflict, and is there a triggering event?
- Issues such as cash flow and timing that may affect how a deal is shaped; (retirement plans and sales of businesses are sometimes an undercurrent for example)
- Is there a prospect that the parties remain in business / trading going forward, albeit on different terms?
- Any concerns one party may have about the other or the mediation process (e.g. willingness to attend a joint open session, whether the other party has authority to settle).
Often in practice many of the above points are discussed confidentially on the telephone with the Mediator rather than dealt with in correspondence.
From my point of view, the Mediation process often begins from the moment I pick up the telephone to the adviser or party. This means the mediation day can begin with a certain momentum.