Preparing your Client for Mediation

Preparing for Mediation – Top tips and Observations from a solicitor/mediator

A mediation is a useful option for parties in dispute and who want to try to resolve their differences without going to court.  It is a voluntary process and providing all the parties agree to it, can be effective in bringing the parties together to find a mediated settlement.

As both a practising mediator and a practising mediation-advocate, our Liam Owen has recent experience of seeing mediations from both perspectives. Some of his tips for trying to give your clients the best possible chance of coming out of mediation with a practicable settlement that can put their worries to bed include:

• Exchange Position Statements well in advance and aim for these to be genuinely useful documents. If there has been a full exchange of pre-action correspondence or pleadings, then these do not need to be reiterated in the Position Statements. Where there is the potential for a genuine “win-win” settlement, this should be flagged. Similarly, where there is something that genuinely is more important than anything else to you/your client, and it is the one point they are unlikely to be willing to move much, or at all, on, then it is useful to set that out while making clear they may be willing to move on other things. This brings us nicely onto my next point:

• Prepare clients for compromise and shared pain at mediation and try to ensure they have realistic expectations. As a practising litigator myself, I am well aware that clients often don’t like to be given the news that they are unlikely to get a settlement that delights them, and that emphasising the positives and potential benefits of mediation ahead of it is also necessary. However, there is the best chance of settlement at the end of the day if the nasty contemplation of having to go further than they might wish to has been done before the mediation rather than at it.

• Have a settlement agreement drafted in advance. Without one, a large amount of time and expense is added at the end of the day when everyone (and that includes the lawyers who are only human) are tired and more likely to miss something/deliver imperfection in their drafting. The perfect settlement agreement cannot be drafted in advance but having something to work with and update during the course of the mediation day tends to be much better than starting from scratch at the end of the day.

• Make the mediation bundle no longer than necessary, well-organised (if electronic with proper pagination and OCR if possible) and be proactive in referencing the key documents in it in your Position Statement. This will both help the mediator (and help keep the mediator’s costs down) and assist all parties in easily referencing key documents on the day.

• Give some genuine thought to what may be of interest/attraction to the other party to the mediation, and how a settlement could be structured that is actually achievable (in that the other side may be willing to agree to it). If the other side’s case has a glaring weakness, of course feel free to draw their attention to that at the mediation, but if the goal is for the mediation to settle, there usually has to be something attractive in it for both/all parties.

There are, of course, many more ingredients that go into preparing well for mediation than this. Our Liam Owen practises as a mediator and is also a very experienced mediation advocate. Please do feel free to contact him with any questions or any mediation enquiries at lowen@keelys.co.uk or 01543 420043.