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

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

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 absolutely 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. Prepare Notes

In preparing for mediation, ask your client what they hope to achieve, and what they would be prepared to achieve, at the mediation. Ask them to provide you with written 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

Ask your client to clarify their 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.