Good preparation before the mediation by the lawyers and the parties can increase the chances of the parties settling their dispute at the mediation. What should such preparation include?
Such preparation can include:
- Deciding whether the other party needs to provide voluntary disclosure of certain categories of documents or evidence before the mediation;
- Deciding whether further evidence is going to be needed before the mediation. For instance, in a construction dispute, have the Quantity Surveyors prepared a joint report?;
- Undertaking a proper commercial and technical analysis of the claim, and also an analysis from the Defendant's perspective;
- Checking the availability of those attending the mediation;
- Considering whether a barrister will be required to attend the mediation;
- Considering whether any expert, for instance, a Surveyor or Accountant, should attend the mediation or should be available by telephone if questions arise;
- Checking that the Defendant or the representative from the Defendant or the insurance company will have sufficient authority to settle the matter;
- Considering whether your client's spouse or partner should also attend the mediation. Remember, some clients will not make the decision to settle a claim on their own but will discuss this with the spouse or partner. If the spouse or partner is not present at the mediation, then he or she will not have seen how the mediation progresses, and why there may have been movement;
- Considering the agreement to mediate/mediation agreement;
- Drafting a Mediation Position Statement. This should be marked "For the purposes of Mediation only. Without Prejudice and Confidential". When drafting this, have regard to who the position paper is being written for. Is the real audience the other side/insurer rather than the mediator or the solicitor/barrister on the other side? Do remember that a position paper is not the same as the pleadings or a Court skeleton argument;
- Remember to let the mediator know about the offers which have already been made. Both sides will be aware of these already so perhaps include them within the position statement;
- Deciding whether a document should be drafted for the mediator's eyes only;
- Considering what should be included within a mediation bundle. Try to agree its contents but do not argue with the other side about the contents as anyone can send what they wish to the mediator;
- Ensuring that the documents are provided to the mediator, and if necessary, the other side, in time;
- Preparing details of the costs to date and expected costs to trial. This process can assist the analysis of the case. Whilst some mediations do settle with costs to be assessed by the Court if not agreed, why not try to use the mediation to agree on costs as well?
- Discussing with the client the process of the mediation. In particular it is important to discuss whether the client would like a joint opening meeting where both parties (along with their lawyers) meet with the mediator, or whether the client would prefer to avoid a joint opening meeting, and instead, along with their lawyer, meet with the mediator.
The Courts have been increasingly willing to be creative with costs awards against parties that unreasonably refuse to participate in mediation or other forms of alternative dispute resolution. However, don't agree to mediate to simply be seen to have mediated and thus hopefully reduce the chances of an adverse costs award. Over 80% of cases do settle at mediation. Remember, your opponent's case may be stronger than you think. Accordingly, it may be preferable to find out in the mediation room, rather than in the Courtroom.
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