In this article, our panel mediator Liz Repper looks at practical tips for parties attending mediations.
Businesses and individuals are choosing mediation to try to solve their disputes.
Some, rightly, have in mind the courts’ firm encouragement of mediation as a process and the (now many) cases where a party has been penalised for unreasonably failing to participate in Alternative Dispute Resolution (see for example PGF II SA v OMFS Company 1 Ltd  EWCA Civ 1288 ). Some focus on the potential to resolve matters speedily and without ever having to issue proceedings or divert and deplete resources. Some favour a process which allows common-sense non-legal solutions to be agreed and soured relationships rescued. Some have heard that mediation creates a confidential arena where reasons for bringing or defending a claim can be aired.
Being a party at a mediation is however a skill. Here’s some of my tips on how to do it.
1. Remember, you’re not in court
Parties sometimes approach mediation like it is a trial. It is not.
Most mediators act as facilitators and don’t therefore give a decision or view. Instead they listen privately to each party, use their knowledge of the subject area to test parties’ positions and strategise to try to find a path to resolution. Since there is no obligation to prove your case to the mediator, time should be spent on persuading the other party and preparing position papers and points that speak to their decision maker.
Constantly keep an eye on the time. Parties typically agree to have an eight-hour mediation, even for cases that would be listed for far longer trials. Consider, how can you make the best use of the time available? Is there a document you can prepare which short-cuts matters by presenting points in a certain way? Can examples be used?
Remember mediation is a process that adapts to the case at hand. Traditionally, mediations commence with an open meeting. Sometimes however a different process suits better. Ask yourself, what may work best for this specific case?
Never forget that the mediator has no power of compulsion and that parties attend mediation voluntarily. Ensure your team all buy into keeping the mediation day going. If the other party wishes to speak directly to one of your team or show them a document, even if you’re inclined to refuse, think carefully before doing so.
2. Begin at the end
Unless parties walk away, disputes end in settlement or formal proceedings.
Start by considering what the end of formal proceedings looks like for each party. What will happen if the case doesn’t settle today? What points are each party likely to win? How much will it cost each party to adjudicate, arbitrate or reach trial? What is each party’s best and worst day in court? Are there funds available to pay? What will happen to business or personal interests while litigation ensues?
Consider then what the end of this settlement process may look like and write a draft settlement agreement (even if for your party’s eyes only). This will allow time to ponder, research and fill in any information gaps. A draft agreement will also act as a checklist and help avoid any “late in the mediation day” surprise requests.
Don’t stop there however. Try to think like the other party. What might a deal look like for them?
Now consider, what parts of your draft deal could you compromise on? What parts of the other party’s potential deal could you live with?
3. Ask yourself, how did the parties get here?
When a judge asks why monies have not been paid, the answer may be that there’s a dispute about the meaning of the contract. While that may be true, parties can dig deeper at a mediation and ask themselves, how did we get here?
Never forget, every day people could fall into dispute with others, but do not.
Revisit the moment the parties fell out. Ask yourself, is the case just about the construction of a contract or is there something more? Were there crosswords? Does someone feel let down or betrayed? Might there be a feeling of being ignored or not taken seriously?
Often parties cannot move to the idea of settling without facing such non-legal issues head-on.
4. Team mediation
Now you’ve established what each party is likely to want, focus on bringing the right team. Someone with full authority to settle must attend. That person will also need to appreciate the voluntary nature of mediation and be ready and able to address parties’ needs.
Has a business or personal relationship broken down? If so, would someone unconnected help? Might it work better for the people concerned to sit together and talk?
Do you suspect that the other party feels they’ve not been heard? If so, bring someone who will be prepared to meet face to face with someone from the other party, listen, acknowledge and try to address what they’ve heard in an effective way.
5. Fresh air and sandwiches
Finally, mediation days are sometimes long. Always ensure the venue is suitable, refreshments are available and people can, if they wish, step out for some fresh air.
This article first appeared in Proceedings of the Institution of Civil Engineers - Management, Procurement and Law. Volume 169, Issue 4, August 2016