BE PREPARED FOR THE MEDIATION
A) Careful preparation can dramatically improve the likelihood of reaching a mediated agreement, and even the terms of settlement.
When preparing for the Mediation, Please consider:
It is very important that you have a decision maker with you, that person must hold authority to make a deal.
It is customary for each party’s legal advisers (if you have them) to attend.
If necessary bring appropriate experts and or Counsel if you believe they can assist in settlement.
Think of who the other side may bring and try to match them.
Bring who you wish, but, try to keep the team as “lean” as you can.
What is mediation?
How the day will progress.
The differences between litigation and mediation.
Your and their role at the mediation.
They will be taking the lead during the day and negotiating.
Mediation provides a unique opportunity for directly influencing the other party’s decision-makers and advisers. Knowing your case well, and being able to articulate it clearly, will enhance the use you can make of the opportunity.
Do you have all the information you require to evaluate your case?
Do you have experts reports if appropriate?
Mediation tends to involve a mixture of legal and commercial (and sometimes personal) issues.
Know the strengths and weaknesses of your case and those of the other side.
What is your position on liability and damages?
It is worth thinking these through in advance?
Know what your client wishes to achieve.
Consider what the other side is seeking to achieve.
Agree what you may have to give or are prepared to give to achieve a settlement.
Know where you would like to settle and develop a plan for negotiation.
You need to be able to assess any settlement proposals in the light of these.
Attend with knowledge of your legal and other costs to date, and an accurate forecast of future costs.
B) Prepare a written Statement of Case and agree a bundle of relevant papers with the other side. Exchange with other side and provide a full copy of the bundle to the mediator at least 2 weeks before the mediation.
Background to the case.
Liability and quantum.
Have any negotiations taken place?
Have there been any admissions or changes since the close of pleadings?
Have any offers been made – without prejudice or Part 36?
If there is a fundamental aspect to the claim which can only be explained by way of a document then please enclose this with the Position Statement.
What does your client wish to achieve at mediation?
What do you think other parties might wish to achieve?
Provide those papers that are relevant to the mediation and will assist the Mediator in understanding the issues for mediation.
Include the latest pleadings, and any relevant witness statements as well as any expert reports.
Remember to bring those documents that you wish to rely on to the mediation.
C) Pre-mediation discussions
Whenever possible, the mediator will telephone the parties/their lawyers before the mediation. His purpose is:
These discussions are also Private and Confidential and covered by Mediation Agreement.
The Mediator is there to help you to arrive at settlement, trust him, give him information, discuss issues with him and allow him to help move the process forward.
D) Ending the mediation
(i) Most mediations end in agreement between the parties.
Where that is the case, it is usual to record the terms in an agreement, for signature at the time.
(ii) If terms of agreement are not reached on the day, there are still other possibilities.
Experience shows that terms can often be agreed in the days or weeks following the actual mediation.
(iii) You may consider:
Re-scheduling a further half-day or day.
Leaving the mediation agreement in place, so that further discussions can take place under its confidential and “without prejudice” terms.
Where appropriate, the mediator will maintain telephone contact to explore whether further progress can be made