It has been a very busy month for mediations (as mediator or representative) so I thought it would be a good opportunity to provide a few pointers that may help parties to get the most from, and achieve a successful outcome at, mediation.
Where, when, who and how?
It should go without saying but it’s always best to confirm that everyone knows:
- where the mediation is taking place,
- when (what time) it is due to start (and where and when you should meet your representative if you are meeting before going into the mediation itself); a delayed start because one party had the wrong start time creates unnecessary stress and tension!
- who will be attending; ideally, it should just be the parties at the mediation but if a friend or moral support is coming, they shouldn’t be someone who could be called as a witness if the matter does go to trial. In any event all parties and observers should be required to sign a confidentiality agreement prior to the start of the mediation.
- how the mediation will be conducted and concluded, e.g. if it is to be “in person” confirm the parties have separate, private rooms or, if it is conducted remotely (by Teams or Zoom), that the parties should be somewhere where they won’t be disturbed or overheard (a coffee shop with free Wi-Fi is not a suitable option) and that they have a stable internet connection and power (to avoid that pesky laptop running out of charge midway through the day).
A mediation isn’t concluded until an agreement has been signed by the parties so make sure there are facilities for the agreement to be printed, signed, scanned and/or sent to the other party (whether “wet ink” or electronically).
The “Agreement to Mediate” (sent out by the mediator and signed by the parties) should set out all the practical arrangements and avoid any confusion on these points, but it’s often worth checking that everyone knows what’s going on!
“Fail to prepare – prepare to fail”
A few key documents can, and should, be prepared in advance to simply and clarify matters:
- Mediation Bundle
The parties (or their representatives) should prepare a bundle containing any relevant material which the parties may wish to refer to or which the mediator needs to see in order to understand the dispute; ideally this will include a summary setting out the actual issues the parties wish to resolve.
That said, a mediation does not involve a detailed analysis, let alone an assessment, of the evidence – it is not a trial where the judge decides who is right or wrong or what happened; the bundle (and any Position Statement”) simply provides the background to the dispute in so far as it is necessary to determine the best way forward for the parties. The parties and the mediator will be very familiar with the contents of the bundle so it’s often not necessary to refer to it at all during the course of the mediation; it has done its job before the mediation has started.
- Position Statements
Documents setting out what each party seeks to achieve from the mediation, and why they believe that would be a suitable result, are useful but they are inevitably a “starting point” rather than the final destination and there is always a risk that a party will become “entrenched” in that position, whereas mediation, by its nature, requires flexibility and movement from all parties.
Any Position Statement should confirm that the party appreciates the advantages of mediation rather than litigation and wishes to resolve the dispute if possible.
- Questionnaires
Rather than having Position Statements, my preference (when acting as mediator) is to encourage the parties to complete a questionnaire which asks them to think about and set out and prioritise their key elements and concerns as regards any settlement and to consider what the other party’s key elements and concerns might be.
Inevitably a mediation will involve a degree of compromise on both sides, so it is helpful to work out what you (and the other party) really want and where you (or they) might be prepared to give a little, in order to achieve a successful outcome. It’s always helpful to encourage the parties to “walk a mile in the other’s shoes” (as long as they don’t actually end up a mile away with the other party’s shoes, which is only likely to inflame the situation).
- A draft Settlement Agreement
It is not uncommon, particularly with an all-day mediation, for some time to be spent by the mediator going through the history and background to the dispute with each of the parties in order to see the “bigger picture” (and hopefully to establish a rapport with each party and find some common ground which might provide a starting point for settlement discussions). Actual negotiations may not start for a couple of hours and it will usually then take some time before a basis for the final agreement is reached.
If the parties (or their representatives) have prepared a draft agreement identifying the parties, setting out the background and dealing with the standard elements of any settlement (e.g. the provisions relating to release, agreement not to sue, confidentiality and the “miscellaneous” terms dealing with enforceability, execution of the agreement, severability and jurisdiction), a lot of time can be saved and everyone can then focus on the substantive terms relating to the specific dispute. I have been involved in several mediations where the “agreement” was reached mid-afternoon but the parties were still haggling about the terms of the Settlement Agreement into the evening!
It may be helpful for the representatives to liaise about a draft agreement in advance to save any argument about whose draft should be used as the template.
Keep calm and carry on
It is essential that the parties are aware that mediating is (usually) hard work for everyone involved; emotions can run high and energy levels can drop throughout the day; mediations can be derailed because one of other party is tired and/or “hangry”. A huge advantage of remote mediations is that the parties can easily take a break and, for instance, make themselves a cup of tea, have a sandwich, go outside or talk to the dog (or all of the above). If you are having an in-person mediation, make sure there’s somewhere to get a coffee or something to eat and any “facilities” will be available throughout the day.
Also, it is also often a “slow” process; the mediator will usually be shuttling between the parties so if they spend half an hour with you, they will then go and spend 30 minutes with the other party. You may want to discuss matters with your representative or consider what counter-offer you want to make depending on what the other side come back with, but you may just want some quiet time to yourself, to gather your thoughts or, indeed, something to take your mind off the mediation.
So finally, when attending a mediation (whether in person or remotely), make sure you have brought something (non-alcoholic) to drink, something to eat and something to read to distract yourself if necessary; I suggest the excellent ‘A Practical Guide to Challenging Seizures under the Customs and Excise Management Act 1979’ by Paul Tapsell – Law Brief Publishing or the enchanting Olympia Publishers | Oliver, Where Are You? Oliver’s Seaside Adventure by Arron Smith.
