Preparation for Mediation

1. Choose Your Mediator

Firstly you need to choose your mediator, and agree the choice with the other side. Chris Makin’s CV is downloadable from this site, so you can see his relevant experience as a mediator.

2. Agree the Mediator’s Fee.

Mediator fees can differ from mediator to mediator; so make sure you check this thoroughly. Chris’s simple (and modest) fee structure is set out on the Fees page; you will see that it is a nationally agreed scale and that the fee depends on the value of the dispute.

3. Agree a Date and Venue

Once you have agreed on the fee, it is important to agree on a date and venue with the mediator and the other side. Book the venue, ideally a neutral setting, with ample rooms for each party where confidential discussions can take place.

4. Prepare the Mediation Statement or File

Ideally, the statement should be on one sheet of A4 and agreed with the other side. That is seldom possible, but a full set of pleadings, witness statements, experts’ reports etc is seldom necessary. When preparing the mediation file, aim to include only the minimum necessary for the mediator to understand the main issues.

Supply a copy of your file to the mediator at least 7 days before the agreed date, and deliver a copy to your opponent at the same time. Pay the mediator whatever amount should be paid in advance. Ensure that your client has a very clear understanding of their own case: strengths, weaknesses, costs, risks of continuing, red lines and matters negotiable, etc.

5. Define Outcomes and Be Prepared

Formulating a clear plan for negotiation in mediation empowers you to approach the process strategically, confidently, and efficiently. It increases your chances of reaching a successful outcome that aligns with your goals and interests.

Ask your client to think very carefully about what it is they need to achieve at the mediation, what would be desirable, and what they are not concerned about.

No negotiation goes perfectly according to plan. Having a clear plan helps you identify what concessions you’re willing to make and where your priorities lie. This allows you to make strategic trade-offs during the negotiation process

With your client, prepare an opening oral statement, and decide which of you will deliver it. This should normally last no more than about 5 minutes, and typically the lawyer will deliver it, with the client adding brief comments afterwards. It may be useful to include an apology if only saying sorry that the dispute has arisen; and a mention that you understand the other party’s viewpoint, whilst not agreeing with it. State that you have come with the intention of settling this dispute.

Prepare a list of costs to date, and an estimate of your side’s costs to the end of trial should the mediation fail. The mediator is likely to telephone you shortly before the mediation for a confidential chat, and costs will inevitably be an area for discussion.

Make sure that you, your client or someone else who is attending has the authority to settle the dispute, without limit. If that is not possible (perhaps because the MD is away on business, or because an insurance claim manager must make the decision) then make sure that this person can be telephoned, whenever a decision is needed during the day or night.

Take with you the mediation file and a chequebook for payment of any additional mediator’s fee, should discussions lengthen.

Now you are ready to attend the mediation.

1. Define Your Goals And Interests

In mediation, the difference between positions and interests boils down to what’s on the surface versus what’s underneath.

1. Positions are the concrete demands or desired outcomes each party states they want. These are the starting points in a negotiation and can be quite rigid. For example, in a neighbour dispute, one person’s position might be “I want the fence removed entirely.”
2. Interests, on the other hand, are the underlying reasons, needs, and concerns that drive those positions. They’re the “why” behind the “what.” Sticking with the fence example, this person’s interest might be “I feel unsafe and lack privacy in my yard.”

Understanding this difference is key in mediation. Focusing solely on positions can lead to impasses. If both parties dig in on their positions, there’s little room for compromise.

Focusing on Interests opens doors to creative solutions. By understanding each other’s needs, the mediator can help craft an agreement that addresses them both. Maybe the fence gets lowered instead of removed, addressing both privacy concerns and neighbourly aesthetics.

Moving beyond initial positions and exploring interests paves the way to finding common ground and reaching a mutually agreeable solution.

2. Prepare Notes

In preparing for mediation, think about what you hope to achieve, and what you would be prepared to achieve, at the mediation. Write out your replies to these questions:

• What are you seeking out of the mediation?
• What do you need to achieve?
• In what areas would you be prepared to compromise?
• What is it worth to you, if you achieve a settlement at the mediation?
• Bearing in mind that the other side will have their own views, what would be a realistic outcome for you?
• Is there anything in this dispute which one side would regard as valuable or important to achieve, and which the other side would not mind conceding?

Then consider whether it would be helpful for the mediator to have a copy of these replies, in confidence.

2. Prepare Lists

Clarify your thoughts by preparing a list, as follows:

1. Write a list of the issues that are most important to your case.
2. Write a list of the strongest points to your case – but be realistic.
3. Write a list of your weakest points, including any which you think the other side don’t know about if there is any likelihood that they might come out at trial.
4. Write a list of the evidence you have to support each issue.
5. Include documents and the likely evidence of witnesses.
6. Identify and write down any issues that are not supported by evidence, and consider whether you could obtain any evidence to support them.
7. Write a list of your legal arguments relating to Liability and to Quantum.
8. Repeat 1 to 7, but as if you were the other party.
9. Be realistic, and avoid assumptions and stereotyping.

Give a copy of your lists, in confidence, to the mediator as the mediation progresses; update your lists in the light of what you learn about the other party’s case, and about your own. You can use the lists to help you prepare your opening remarks and as a framework for negotiation.

3. Prioritizing The Issues by “Eggsample” (simple cases only)

Against each egg, decide what is most important to you. It is OK to swap and change as you feel necessary and as your priorities change. Be honest with yourself.

In all cases, you need to think about what the outcome may be in court, compared to what you may be able to negotiate at the mediation.

Gold Egg – If you achieved what you list here, it would be the best you could hope for.
Silver Egg – You feel this would be a reasonable deal.
Brass Egg – This is the very least that you want, and nothing less will do.

4. Maintaining A Flexible And Open Mind

Maintaining an open mind throughout mediation can encourage creative solutions and compromise that wouldn’t be possible through the courts.

5. Preparing Emotionally

Mediation can be a highly emotional and stressful time. You need to be aware of your emotions and your triggers to ensure logical decisions are made, rather than emotional ones.

Before The Mediation

• Self-Awareness: Recognise your emotional triggers in conflict situations. What topics or behaviours tend to push your buttons? Understanding your own emotional landscape allows you to anticipate potential challenges.
• Preparation is Key: Having a clear understanding of the issues and your desired outcome helps reduce anxiety and uncertainty. Prepare talking points and potential solutions beforehand.
• Practice Relaxation Techniques: Deep breathing exercises, meditation, or visualisation can help you stay calm and collected during the mediation.
• Positive Self-Talk: Remind yourself of your goals and why you’re mediating. Focus on finding a solution, not winning an argument. Prepare to present your arguments and needs in a way that is open to compromise and solution-oriented.

During The Mediation

• Active Listening: Focus on understanding the other party’s perspective.
• Acknowledge Emotions: Validate the other party’s feelings, even if you disagree with them.
• “I” Statements: Use “I” statements to communicate your needs and concerns. This reduces tensions and sounds less accusatory.
• Focus on the Issues, Not Personalities: Keep the discussion focused on the issues at hand, and avoid personal attacks or blaming language.
• Take Breaks: If emotions start to run high, request a short break to calm down and collect yourself.
• Remember, mediation is a process, and maintaining emotional control takes practice. Be patient with yourself, and don’t be afraid to ask for a break if you need it. By following these tips and focusing on finding a solution, you can effectively manage your emotions.

6. Logistical Preparations

Before the mediation, make sure to confirm key information, such as the date, time and location of the mediation sessions. You’d be surprised how often people don’t confirm. Taking a notebook and pen will allow you to make notes, should you need to.