Mediation – a practical alphabet (almost)

Posted: 11/09/2015

Attendees - who should attend? They need to know the issues in dispute, the commercial objectives, and have the authority to settle.

Be realistic - you should come to the mediation with some idea of what you might be prepared to agree. If you are only prepared to settle on the basis that your whole claim will be satisfied and nothing else, you should question whether you are in fact ready to mediate. 

Cost - compared to litigation (and, increasingly, arbitration), mediation is a cost effective way of resolving a dispute. 

Devil’s advocate - part of the mediator’s role is to challenge each party’s position and ensure that they are in touch with its commercial reality, as viewed by an objective outsider. 

Effective - most mediators claim that more than 70% of mediations succeed on the day, with further settling post mediation.  

Flexible - mediation gives the parties the opportunity to choose the process, and to make wide ranging agreements with a wider range of remedies than might be available in court. 

Go prepared to listen to the other side(s), and to the mediator. And to wait. 

Holistic - a successful mediation can help retain a potentially valuable business relationship, as it allows parties to address commercial or reputational issues as well as the legal ones. 

Insight - even if mediation fails, you should come away with a better understanding of the other side’s case. 

Judging when to mediate - pre-action mediation can save time and money if the issues are clear enough. Alternatively, once proceedings have been issued, mediation may follow disclosure or exchange of evidence. 

Key issues - preparing for and attending mediation encourages parties to focus on what lies at the heart of the dispute.

Low risk - apart from the associated costs, you stand to lose very little if the mediation fails. 

Mediator - a mediator is a neutral third party who will give the parties the benefit of a non-judgmental, objective view. Who do you choose? Preferably an accredited mediator, with plenty of relevant experience, who comes recommended. The holy grail of mediators! 

Negotiation strategy - you should consider whether to make the first offer, and what your initial offer(s) might be. Are there any non-financial elements to consider? Be very clear about what is a desirable/acceptable settlement range. 

Opening statement - each party gets the opportunity to make an opening statement, which should be positive and confident in tone. 

Plenary session - mediations usually start with all the parties in one place before “breaking out” into separate rooms. There may be further plenaries later in the day. 

Quicker - mediation can usually be arranged within weeks (rather than months or years) and resolved within a day or days.  

Reputation - anything said in the course of mediation to any party or the mediator remains privileged, private and confidential and outside the public domain. 

Settlement - the mediator should check that the parties understand the terms of any settlement agreed, which should be recorded in writing and signed. Any written settlement agreement is binding on the parties once signed. 

Tea - you will need plenty of it, and biscuits! 

Unique - no two mediations are the same: they can be tailored to suit the (legal and human!) personalities involved and the complexity and nature of the dispute. 

Venue - where should a mediation be hosted? At one set of lawyers’ offices? Somewhere entirely neutral? 

Written position statement or case summary must usually be submitted to the mediator in advance, with a bundle of core documents. 

eXpectations - don’t expect miracles, immediately, at least! You can expect a long, tiring and at times, boring day. 

Your objectives - these must be clear, and clearly communicated between parties and their lawyers. Be careful not to give too much strategy away to the other side. 

Zzzzzzz - prepare for a long night! 

This article was published in New Law Journal in September 2015.

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