Guide to effective mediation: your questions answered
A mediation is a without prejudice meeting between the parties involved in a dispute. It is facilitated by an independent person who has had special training to assist in the resolution of disputes (the mediator). The objective is that the parties will come to an agreement and enter into a binding settlement by the end of the process.
For mediation to be effective, preparation and engagement in mediation is crucial, particularly given that the courts are prepared to punish parties that don’t engage in the process in a productive way.
How do you choose a mediator?
It is wise to choose your mediator carefully. Using mediators that you have used before can be a good starting point, as you will know their style and will be used to their approach. Another way of establishing whether the mediator is the right person for the job is to speak to one of the big mediation chambers, specify what you need and see who they have on their directories that will fit the bill.
When reviewing potential candidates, consider the following questions:
- Does your mediator have sufficient experience to assist you in the resolution of your matter? Research their background to find out how long they been qualified as a mediator and how many mediations have they done.
- Is your mediator personable and engaging? A remote and aloof mediator will not be able to develop the relationships that are critical to the process working.
What happens during a mediation?
Mediations typically take the following form:
1. The pre-mediation stage.
During this time the parties work separately to prepare their position statements, gather all required documentation and decide what their approach will be at the mediation.
2. The mediation.
Typically, this will start with a meeting that is attended by all parties and chaired by the mediator. This is known as the opening session and during this meeting, the mediator will provide an introduction and all parties will state their position.
After the opening session, the parties retire to their own rooms, with the mediator shuttling between them. The mediator’s goal is to try and narrow the positions between the parties and help each party develop possible solutions. This is known as the closed session.
Why is pre-mediation important?
Pre-mediation is the time when you can prepare your case, anticipate any hurdles, and discuss likely outcomes and where you stand on them. There is greater chance of a mediation meeting reaching a resolution smoothly and swiftly if all parties have taken time to prepare thoroughly.
It can be time consuming; there is a lot of work to do in the run up to a mediation and you need to make sure that you give yourself enough time to do it properly. That said, a mediation that is taking place months in the future often lacks the urgency needed for the parties to take the process seriously. A good mediator will begin the process early and ensure that all member of the party are involved.
Is the pre-mediation meeting necessary?
Yes. Effective mediation is all about dialogue. Most decent mediators will offer a pre-mediation discussion; it helps the parties get anything off their chests in private before the big day, and it also helps the mediator in their attempts to build relationships and trust.
Take this opportunity. It will put the nervous at ease, and no one will be a stranger on the day.
What is the best location for mediation?
The venue that you choose for mediation is really important as it can play a role in setting the tone of your meeting. The best location for you and the other parties depends on a number of factors. Consider the following questions when choosing where to hold your meeting:
- Is the location convenient for all of the parties and the mediator? You want to make it easy for the parties to attend the mediation.
- Is neutrality an issue? It may make one party uncomfortable to be mediating in the other parties’ solicitors’ offices, for example.
- Are the facilities going to be comfortable? Mediating for an entire day in dimly lit rooms with no natural light and malfunctioning air conditioning is not going to pave the road to settlement.
- Can refreshments be provided during the day? No one makes good decisions when hungry and thirsty, so keeping everyone well fed and watered is essential.
- Do you need to mediate in person, or can it be done online? Some parties will still find mediations intimidating and may find the process easier if they are able to mediate in their own surroundings. That said, if you are going to mediate online, make sure that you use a secure platform, that everyone has a stable wi-fi connection and that the mediator has experience of conducting online mediations.
There are now a number of specialist facilities (such as the International Dispute Resolution Centre in Central London) that are geared up to hosting mediations, if a venue cannot be immediately agreed upon.
What is a mediation bundle and what should it include?
A mediation bundle is a file of documents that is given to the mediator so they can familiarise themselves with the dispute before the mediation takes place. Each party prepares their document bundle.
When preparing a mediation bundle, always bear in mind what the mediator’s role is – they are there to facilitate a discussion between the parties and not to pass judgment on the dispute. They just need to understand who the parties are and what the dispute is about.
Restrict the bundle to the core papers – include the pre-action correspondence and pleadings (if the claim has been issued), and the expert’s report (if helpful). Don’t include evidence unless it has a real bearing on the settlement discussions.
And definitely include without prejudice correspondence; it is surprising how often this is omitted from the bundle and yet it is directly relevant to settlement discussions. It will enable the mediator to gauge what the parties’ positions are and how big any gap is.
What should a position statement include?
In most cases, a written position statement of some sort is going to help the mediator and will probably also ease the mediation process. However, great care needs to be taken when drafting them.
When drafting a position statement:
- Introduce who is attending and what their role is.
- Succinctly set out the facts and the procedural background.
- Direct the mediator to any key documents that will help them understand the issues in the dispute better.
- If the position statement is for the mediator’s eyes only, state the party’s position honestly and candidly. The process will work much better if the parties are entirely open with the mediator.
Remember that the mediator is everyone’s friend in the process and will only reveal sensitive information with permission.
Things to avoid when drafting a position statement
- Position statements that are long and waffly. Get to the point as this will help the mediator.
- Position statements that start quoting the law. Mediation is about trying to settle on agreed, sensible commercial terms and no amount of law will help you achieve that.
- Being too positional. If your position statement is all about how wrong headed your opponent is and how you will smash them at trial in a great victory, then they will not want to negotiate, may even be put off the process and the mediator will not be convinced that you are mediating in good faith.
Remember what the mediator is there to do; arguments about the facts and the law are best placed before the judge at trial.
Who should speak during the opening meeting?
During the opening session, the advocates for each party will present the party’s position. Effective advocacy is dependent on the advocate being able to argue the party’s needs and views in a clear and non-confrontational way.
Think carefully about who should do most of the speaking during the opening session (and agree who that is) before the actual mediation. It doesn’t need to be your lawyer. Parties can be their own advocate.
Presentations by lawyers can be effective, but they can also be damaging if the approach is too legalistic or argumentative. If the parties are confident speakers, then they can convey feelings and emotion in a way that the lawyers can’t and that can sometimes open the door to a settlement.
That said, do not force someone to speak if they are not comfortable with doing so as it makes the process seem intimidating to them. The risk is that they focus on preparing and delivering their speech rather than the desired outcome of the process.
How do you ensure that a settlement is reached on the day?
To ensure that an agreement can be reached, each party should plan properly well in advance of the mediation. They ought to meet with their entire team and define what the settlement parameters are, what the walk away triggers are, and who does what on the day.
It is important that someone present at the mediation has complete authority to settle the dispute (that person is obvious in a dispute between individuals but can be less so in corporate disputes). It is guaranteed to irritate everyone (particularly the mediator) if the parties get close to settlement only to find that a party has to defer to someone who is not there and there is then a delay to a settlement as a result.
Also, come armed with a pre-prepared settlement agreement. This may seem like overkill, maybe even rather optimistic but a lot of time and frustration at the end of the day when settlement documents can be concluded quickly.