What is the Key Preparation That Lawyers Need to Make Mediation Work on the Day?
For those of us lawyers who go about arranging a mediation there is a simple check list which we can all go through to maximise the opportunity for the mediation to succeed.
Fundamentally, in any kind of conflict case you should be evaluating whether the case is ripe for settlement, including mediation or not. Sometimes if you have a litigation case which has been going on a while it can be a good idea to telephone the client, explain what the legal position is, the level of costs incurred and to be incurred and then ask if the client can see if there is any way the case can be settled.
Have you made your Without Prejudice offers in writing? If you have a good rapport with the other side’s lawyers have you had a candid and ‘off the record’ conversation about exploring settlement? Have you contacted the other side’s solicitors and suggested a round table meeting (which is more likely to be less expensive than a mediation though can be more difficult to manage)? Essentially have you done everything to try settle the case prior to mediating?
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If you are going to mediate, and/or the Court has directed it, some variables to consider prior to doing the mediation include:
- Think about at what point in a case you should mediate. The advantages of early mediation are that it takes place before either party becomes too settled and costs can be minimised. Later in the case – when the trial is about to take place the parties may feel that they have nothing to lose and the relationship is so damaged you must mediate after a level of work has been done. Overall what you are concerned about is having sufficient knowledge of your client’s and your opponent’s position together with having any necessary documents so you do not mediate prematurely.
- What should be the size of your mediation team? Leaner & smaller teams work – From the mediator’s perspective a smaller team containing the person with the authority to settle is far more efficient than a larger team. The real danger of having a larger team is that everyone wants to get their six pence in. The process will be significantly weakened if you do not have the person with the authority to settle. The general principle is that the commercial decision makers are critical to the success of the mediation and accordingly it is my strong preference to have the person with authority to settle at the mediation.
- Who should act as mediator? – By far the most important variable which will enable the mediation to succeed is the selection of the mediator. Selection of mediator is one of the most important dynamics in the mediation process. A good mediator will get a case settled but a great mediator can get any case settled. Do not be seduced by mediation providers who say that this person is excellent or others, such as opposing solicitors, your own counsel, or your opponents. If you have a good mediator who can get the job done, try to ensure that mediator is going to be used but be open to what the other side say. Generally, do what you can to get a good mediator. Do not get sucked into a dispute about the choice of mediator with the other side. By way of example, if the other side proposes a mediator who is good, go ahead with that one. Do not try to make points with the other side. It is too important to do so.
- How long should the mediation be? Even the most complex cases can be settled within less than two days. My preference is that the shortest mediation should be is three hours. Generally, a mediation (unless complex) should not last more than one day though it can go on late beyond office hours! It is possible that some elderly client issues can take three hours but particularly on long standing issues you are looking at one day.
- Ensure that you prepare for the negotiation. The most effective negotiators do have a genuine strategy for the day and do not treat conduct of the day as a rehash of solely the strengths of their client’s legal position.
- Which venue? The venue is important but does not have to be at a neutral venue. By way of example there may be benefit in locating it at where the project has taken place. This will assist with site visits, access to local managers, access to relevant decision makers if necessary. It is my preference that the mediation is held at a quality venue and this can have a bearing on whether the case can be settled. There is a slight disadvantage in holding the mediation at one of the lawyer’s own premises. If the home party has a better room, this is bound to antagonise the other side. Also, you need to consider the cost of the venue and whether there are extras to consider. In a two-party mediation a minimum of 3 rooms are usually required. One must be large enough for all the participants and two for private sessions. The key is that your client is comfortable with the venue.
- Do the parties have authority to settle? It is an essential requirement of the process that all sides come to the mediation with authority to settle. It is important that a key player who can determine if the mediation will succeed or fail is present. E.g all the executors or say all of the possible Claimants if there are more than one. All persons who need approve the settlement should attend the mediation
- Do you have a written agreement to mediate? This will contain the following provisions:
- that the proceedings are confidential and without prejudice
- no party may call the mediator to give evidence in later proceedings in what he has learnt during the proceedings
- the process is voluntary: any party can stop proceedings.
This should be signed by both parties prior to the mediation taking place. Try to get a copy agreement from the mediator before the day happens.
Given the fact that as lawyers we are embarking on a mediation process which can have significant difference in outcomes e.g no settlement or a settlement and if a settlement is reached the level in one’s client’s favour, it is critical to prepare as much as possible. The most effective mediation negotiators are not necessarily the best lawyers but those who prepare the most and hopefully by following these guidelines, lawyers can prepare more effectively for mediation.
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