How to prepare for and conduct a mediation

With an ever-increasing emphasis on Alternative Dispute Resolution in litigation, mediation is a key tool for litigants to resolve disputes outside of court. Following a recent mediation with IPOS, a long‑established UK mediation service offering dispute resolution through a panel of experienced mediators, along with a separate mediation training session, I’m keen to share the main observations from both.

Preparation

Preparation is key. Prior to the mediation, you need to understand your client’s issues and objectives and ask yourself a variety of questions. What does your client want to achieve at the mediation? What are their priorities? How far are they willing to compromise to achieve a settlement? As part of this exercise, you should also put yourself in the shoes of the other party. What are the strengths of their case? What are the weaknesses? What are they looking to achieve from the mediation? What is likely to be important to them? All too often as litigation progresses, parties can take an increasingly narrow legal focus. Mediation is a fresh opportunity to consider the case more objectively from both perspectives, to consider options and focus on how a mutually agreeable resolution can be achieved.

The Civil Procedure Rules require the parties to resolve disputes proportionately and make it clear that litigation should be a last resort. Exploring opportunities for ADR is a key part of the overriding objective. In the age of emails, sometimes lawyers are guilty of not picking up the phone to the other party’s lawyers enough prior to a mediation. In that time, numerous letters and emails may well have been exchanged and positions can become entrenched. Speaking with the other party’s lawyers before a mediation helps to build professional rapport and set the parameters of the mediation. It can be an opportunity to model what cooperative behaviour and constructive negotiation looks like whilst still advancing the interests of our clients. In turn, this will increase the chances of a successful mediation.

Position statements are often a point of contention and as I learned, not always accurately named. It would be more appropriate to refer to them as mediation statements. The key is to show you are open and willing to negotiate. Parties will frequently utilise these as an additional statement of case. This does more to enrage than engage. In some circumstances, it may be appropriate to point out a flaw in the opponent’s case tactfully. Choose your words wisely – for a mediation to be successful you need to build engagement.

Having a draft settlement agreement ready, or least a template in place, is important. A lot of time is wasted at mediations where these are drawn up from scratch after a deal has been agreed. Many of us, lay persons and lawyers alike will have sat through a full day mediation, only to then spend several hours waiting for the document recording the agreed terms to be drawn up. Understandably, this can cause frustration and anxiety. Coming to the mediation with an outline agreement pre-prepared mitigates the risk of parties having doubts, or second thoughts about settlement, once heads of terms are agreed.

The mediation

For many clients, litigation is emotionally charged. Mediation can be a daunting prospect. As lawyers, we are removed from this emotional charge. Our clients are not. In such circumstances, clients want to be heard and understood. They want the other party to appreciate why they feel this way. Mediation is a time to actively listen and understand. This is not the time to preach the strengths of your client’s case. Indeed, if someone feels heard and understood, then they will be more receptive to reaching an agreement. It’s worth remembering that even commercial cases are rarely just about money.  Actively listening will help you understand the other party’s motivations and what’s important to them, and that will enable you to help your client identify potential solutions.

Related to this point, give careful thought to who speaks in the opening session. The appropriate person will depend on the circumstances of the case. Sometimes, this will be the client. It is their case and their voice is important in the mediation process. Hearing directly from them will help another party understand why they have brought their claim, how they feel and their objectives for a resolution.  This can be incredibly powerful, and can help build understanding and move the conversation forward.

Ambushing is not conducive to settlement. Many mediations have been derailed when new information is presented at the last minute. Be this an expert report, or a request for sums over and above those sought in their claim. This approach will put the other party on the defensive. If new information does come to light, be sure to raise this tactfully in advance of the mediation.

As the saying goes, it is not what you say but how you say it. This is very applicable to mediation. It is not only the offer that matters, but how you make the offer. You need to be able to explain your rationale. If the other party is aware of the reasoning behind the offer, this is likely to land better. When emotions are involved, simply stating a financial sum, with no explanation is unlikely to be as persuasive.

To summarise, preparation is key. It is not just how you conduct yourself on the day. The work you do beforehand will influence the outcome. Actively listen. Try to build an understanding of what is important to the other party and why.  Doing so will enable you to pitch your own offers more effectively and ensure they are better received.  Be flexible and open to compromise. Plan ahead but be prepared to be flexible on the day as you gain new information. Provide information in good time. Always consider your tone and how to present yourself, as this can prove as crucial as the detail.