Preparing for A Mediation Appointment
As time progresses mediation is being utilised more and more as a result of the significant benefits it provides to parties, including the ability to resolve disputes more quickly and less expensively than court proceedings. Tactics and advocacy utilised during mediation appointments vary greatly between representatives and indeed different disputes may require different approaches to be utilised on the day. However, irrespective of the nature of the dispute or the tactical approach selected, it is important that in advance of the appointment all of the necessary steps are taken to give a party the best chance of using the appointment to its full potential. Set out below are some suggested steps to be undertaken prior to the mediation appointment.
Obtain All of the Necessary Facts and Figures
In order to ensure that a party is aware of the best options available to them at a mediation appointment, it is imperative that they have as much knowledge of the relevant aspects as possible. Whilst it is often the case that parties will have access to the internet on the day in question and thus can look into or research certain information, there are some things it will be too late to obtain by that stage. For example, it is important that a party is aware of the value of anything in dispute. Whilst disputes are not always around money, or indeed that is not always a party’s priority in a dispute, such information assists to enable parties to make informed decisions. Ideally any such information will be obtained jointly or disclosed beforehand to ensure such values are not disputed, however even if that is not possible, it is preferable for a party to have such knowledge in any event.
For example, in a dispute about a house, it is imperative that the value of the property is known, so that a party can determine what is a good offer and what is not. Even in the event that it is known in advance that the property will be sold and the parties are therefore in dispute over their respective percentage shares of the proceeds of sale, the value thereof will enable a party to compare the financial implications of any offer made as measured against the potential financial consequences of proceeding to trial.
In the event that one party has been residing in the house and the other has not it may be that it is possible that one party would wish to make a claim, or receive an additional sum, by way of occupation rent. As such it would assist if the monthly rental value of the property were obtained. Whilst at first blush such a claim for occupation rent may be dismissed as baseless, or morally reprehensible given the heightened emotions of such disputes, if the rental value is not known then it is not possible to calculate the value of any such element of the claim.
Moreover, if a party has carried out works to the property in question, they may seek to argue that they are entitled to an additional share equivalent to the increase in the value of the property that arose from such work. However parties are likely to disagree over whether work added value, and if so how much, or simply made the property ‘more sellable.’ If an estate agent is asked in advance to value the property on the basis that the works were carried out and also on the basis that they had not been carried out, then the difference between the two can be utilised as the increase in value attributable to the works.
Consider All of the Possibilities
When in the midst of a dispute parties are of course likely to be aware of the outcome they are seeking, however it is unlikely that the other party/parties are of the same view. As such it is important that a party considers all the possible means by which the dispute can be settled beforehand. This will ensure that there is less chance of a party being caught off guard by an offer made by the other side on the day, and also mean that they are more likely to have an opportunity to obtain any additional information prior to the mediation. A party should therefore spend time in advance considering all of the possible ways the dispute could be resolved, even those that they have no intention of agreeing to, as this will enable them to prepare for any proposals made and also potentially think of a way forward they otherwise would not have done. For example, again using the example of a dispute regarding a house, whilst a party may not initially think they are in a position to purchase the other party’s interest, they should enquire as to their financial position, including in respect of their mortgage capacity or the possibility of additional funding available from family, as an offer may be presented on the day that may make that outcome beneficial.
Prepare for a Long Day
Parties should ensure that they have made arrangements (such as travel and childcare) that will enable them to be present at the mediation throughout the day, at least until 5pm and perhaps beyond. Parties should also ensure that they have prepared mentally for the appointment to last all day as if they become irritable that may impact upon their ability to make sensible decisions. Whilst it is easy to think that it will not take long as ‘they’ll either agree with what I’m asking for or they won’t,” in fact mediation appointments often take far longer than expected as the mediator is not simply a messenger service passing offers from one party to another, their role requires time and thus the mediation appointment often takes longer than expected.
Imagine You Are in the Other Party’s Shoes
Think about the dispute from the point of view of the other party. A party should put themself in the other’s position and consider what sort of outcome they would be looking to achieve. This will enable them to ascertain where the potential middle ground may lie.
Consider any Additional Information You May Wish to Obtain
Whilst the primary aim of a mediation appointment is to resolve the dispute, it also presents an opportunity to obtain information from another party. Thus in advance time should be spent thinking about any information that may be useful, both in respect of the other party’s legal position in the case as well as any extraneous factors that may assist. Whilst the other party may of course refuse to answer any such questions, it may be possible to gain the information using other methods on the day, such as reading between the lines on any position adopted by the other party during negotiations.
In the majority of cases mediation presents the best opportunity to obtain a comparatively quick and inexpensive way to resolve a dispute. By considering the above suggestions a party will improve their chances of fully exploiting the benefits of mediation.
Members of Becket Chambers can provide assistance with parties attending mediation; in addition Becket Mediation (www.becketmediation.co.uk) has a number of civil mediators approved by the Civil Mediation Council. Please contact the clerks on 01227 786331 to discuss your situation and requirements.