Documents
There are two classes of documents:
- Those you will show only to The Mediator
- Those you want to disclose to the other side or have already disclosed.
The Mediator will ask for these documents in advance of the hearing. The Mediator will assume all communications and documents, in any medium, are confidential. To make certain that your confidentiality is preserved, The Mediator will never communicate or publish any material received from you, to your dispute party. If you wish to disclose a document at any time, it is for you alone to do so. Please make sure you send a copy to The Mediator too.
Confidential documents will include:
- Your story - as a skeleton chronology of events. This may need supporting documents.
- Any other documents you would like The Mediator to see.
Documents for discussion with the other side might include
- A skeleton version of your case - that is, a summary of what you think about your case, their case, and what is a fair settlement (if you can quantify that)
- Any other documents and reports which you have already shared with the other side and which you want to refer to at the mediation hearing.
If you wish to be certain that The Mediator has a full set of documents at the hearing, it is helpful to put together a clean bundle for his use.
The Mediator will not be happy if a party produces at the mediation hearing documents which the other side has not previously seen.
The Mediator is not a judge, so is not in a position to be influenced by “evidence” brought by a party to the mediation. The Mediator will not call for production of documentary evidence.
Because mediation is a “cards on the table” situation, either party may obtain whatever documents he wishes to support his claim. This applies to a statement from his customer or the report of an expert.
The parties are encouraged by the Mediator to make a joint instruction for a report by an expert in any case where technical evidence may facilitate an understanding of the issues. If required, The Mediator will arrange the instruction on behalf of the parties and at their expense. The expert shall not attend the mediation hearing.
If an important point of law is at issue, the Mediator can arrange for a written opinion from a barrister at the joint cost of the parties. It must be understood however that any such advice will be strictly as to the law and will not comment on any settlement possibility, nor on the “merits” of the case made by either side.
Witnesses
The Mediator will accept up to two “witnesses” of fact from each side to speak in support of their side. However, this support must be limited to facts about which the witness has first-hand knowledge. No witness may speak for longer than 10 minutes.
Neither party may bring his own expert witness under any circumstances. The entire mediation proceeding and all documents brought, are privileged from disclosure as made or shown in the course of proposed settlement. This is not a dictum by The Mediator. It is how the court will rule if the matter is raised. This does not apply to documents not created with a view to settlement, such as medical, accounting or time records.
Neither party may bring his own expert witness under any circumstances.
The entire mediation proceeding and all documents brought, are privileged from disclosure as made or shown in the course of proposed settlement. This is not a dictum by The Mediator. It is how the court will rule if the matter is raised. This does not apply to documents not created with a view to settlement, such as medical, accounting or time records.