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On the day of your online mediation

Here are a few personal reminders from Andrew Taylor. You will probably find that this page makes most sense to you if you have already read about how your online mediation will get started.

Apart from dealing in a different communication medium, the procedure closely follows that of a face-to-face mediation meeting.

Don’t worry at this stage about use of hardware and software. You can read all about that on another page.

Last minute reminders

If you are involved in litigation, you will already have uploaded files of your claim and defence; witness statements; photographic evidence; professional reports; any other document you might wish to refer to during the mediation meeting; and a one page index of all those documents.

You will need to have a word with your solicitor so that you are up-to-date on the detail. Even if your solicitor will be at your side, it is still a good idea to make sure you understand exactly what the judge said should be discussed at mediation.

If you have been involved with your solicitor then legal costs will already be a big deal. Get costs estimates for taking your case to trial, in writing, from your solicitor, well in advance of the mediation meeting. You need to know your downside.

Here are some other points you might consider:

  • Refresh your memory as to what assumptions and facts you rely on in support of your position.
  • What exactly are you claiming or defending in money terms? What are the upper and lower limits that could be awarded in court?
  • What are the tax implications of different possible money settlements?
  • Make a list of what you think are the strengths and weaknesses of your case and of the case of your conflict-party.
  • Work out, and write down, what you think are the best and worst alternatives to a negotiated settlement. Do the same for what you know of the case of your conflict-party.
  • Think up what concessions you might be able to make at some stage, if not up front, at little cost.
  • Most importantly of all, use your imagination to create a list of the small things you would like to be part of the outcome at the end of the day and a similar list of small things you could offer without great loss.

For a mediation in connection with your personal affairs, the list is endless, but for business contracts, you could consider: the future use of overtime, lower price for a defined period, improved reliability or quality or customer support, higher level of technical assistance, high level of confidentiality, joining together for marketing campaigns or press releases or other publicity. In your private affairs list could include: apologies and expressions of understanding and empathy, amendments to policies, changes to procedures, staff retraining.

  • Finally, stay cool. You will achieve a far better deal for yourself if you are able to keep emotionally relaxed. I don’t just mean that you should not express emotion. That’s just part. I mean that you should try to call on inner resources to tell yourself you will not react at what might be said. As you will imagine, this is far more important in a mediation relating to your personal affairs than one in connection with a business problem

Important! Understanding win : win

A win : win negotiation does not require you to split resources right down the middle with a sole focus on being " fair". it doesn't mean automatically making a concession just because the other particpant made one. It doesn't mean that you should try to avoid conflict and tension at all cost.

Rather, win : win negotiation means working to get the best deal possible for yourself whilst also working to ensure that your conflict-party is satisfied. It means making offers that are good for them and great for you. And it means thinking creatively about how you can get more of what you want by helping the other side get what she/he wants. (For me, the goal will always be to achieve a win-win situation for both of the participants).

It is likely that if the dispute has been ongoing for some time, both sides will be considering litigation as an alternative way forward. To get the best out of mediation, you have to challenge yourself to think of many ways which would benefit one or both of you, outside of the limited range of possible orders a judge might make.

The meeting starts

We get started

You have booked the date. Both participants and I will be sitting with our phones and computers at hand. I shall be looking forward to working with you to thrash out an agreement both of you are happy with.

Unless there is a clear reason otherwise, we shall have agreed to start with an online meeting, probably via Skype or Zoom, or possibly some other suitable software. I shall start by checking up on who might be present with either of you and asking you to confirm that you will guarantee the confidentiality of those people.

Position statements

I shall continue with a short explanation of how I propose to conduct the day and a few reminders of important points relating to the procedure. I will then move on to give each of you the opportunity to set out what you would like from the mediation by speaking or reading your position statement. Elsewhere we have explained fully what a position statement involves.

How you see the dispute

This is your opportunity to say how the dispute has affected you personally, what you want to achieve from the mediation. It’s OK to say what you feel and feel what you are saying, but please do not do so in a way which insults, hurts or demeans your conflict-party. On the other hand, it is most certainly an opportunity to say what you want and why you want it. Elsewhere we have explained fully what a position statement involves.

Question time

When both of you have spoken – and listened, I shall give each of you the opportunity to ask questions of the other. Again, I shall hope that both of you will be prepared to listen whilst the other speaks. From that point, we shall have to see what happens. Sometimes a negotiation develops. At other times the participants are so far apart that they are not yet ready to talk about any common interest.

Caucus meetings

That shuttle process might take no longer than one hour or it might extend virtually to the end of the allotted time. I will try to spend a similar amount of time with each participant at each caucus meeting. In practice however this is rarely possible. My aim is to bring you together to find common ground, understand each other’s positions and eventually agree settlement terms. My impartiality is critical to me but timekeeping against the clock is of less importance.

I expect to discuss with you any question, proposition or suggestion which I shall have brought from the other participant. I shall help you to explore your options as to how to react to what the other participant has said and will act as a sounding board for suggestions by you as to how you wish to respond. I shall continue that process until a satisfactory resolution has been more or less agreed. I will then call the participants together for a joint meeting.

I may gradually take a tougher line

As the day progresses, I should have been able to bring you closer to your conflict-party on the main issues, which will have been discussed at some length. In our private caucus meetings, I may now decide to take a stronger line with both participants to encourage you to understand that some of what you seek is simply not available. I might advise and cajole you increasingly strongly and may give more emphasis to the adverse consequences of failing to achieve a settlement.

Sorting the finer points

At that meeting there may well follow a final period of negotiation where I shall isolate the most important terms and identify precisely what appears to have been agreed and what points remain outstanding. I will help you to move away from fruitless discussion of less relevant detail. It is possible that I may take a stronger line than previously, pointing out problems that will arise should the conflict not be resolved.

Coming to a settlement

In by far the majority of cases, a settlement will have been agreed. I shall then help you to draw a settlement agreement. That agreement will be binding in law, even if written in manuscript. Most legal agreements contain a number of provisions which fine-tune the legal framework or specifically protect one party against the other. Your mediator will be careful to avoid any such provision which might benefit one of you more than the other. To put it another way, this will be your document.

In by far the majority of cases, a settlement will have been agreed. I will assist you, but not advise you, in drawing a settlement agreement [link to: S57: settlement agreement]. I will explain again that when signed and dated, your agreement will be binding in law, even if written in manuscript with few or none of the usual “legal” points. However, my experience is that many participants find it strange that so experienced a lawyer is not prepared to help in the smallest extent. I do therefore provide some “raw legal paragraphs” which you can use as the basis of your agreement if you both agree to do so. Although this takes the form of a document, it is in fact merely a number of paragraphs which you will most probably have seen before in other agreements. You can assess them now. Maybe your solicitor can add more suggestions, based on the details of your particular conflict.

The only additions a mediator might suggest relate simply to making sure that the document is valid, lawful and clear.

Signing the agreement

Your settlement agreement can be signed to an exchange of email messages. However, it is preferable to use simple software such as SignEasy. It’s a good idea to practice at some point before the meeting just so that you can see how easy it is to use.

When the parties finally separate, there are five alternatives.

  • The parties simply go home and carry out the agreed terms without any further professional help.
  • Each party asks his solicitor to negotiate the precise words of a full agreement covering not only the agreed terms but all of the consequential points in a document which the parties will then sign.
  • There remain issues to be discussed so the parties and the Mediator have agreed to continue the mediation process at the earliest possible moment. The timing depends largely on the availability of the Mediator to continue while all the arguments are fresh in the minds of the parties and himself.
  • Occasionally, for one reason or another there is no settlement “on the day” but over the next couple of weeks, the parties have had the opportunity to digest what has happened during the mediation process and probably to consult with others. They resume negotiation and do reach a settlement.
  • Very occasionally, no agreement has been reached. Maybe later!

More about the shuttle

The fundamental basis of shuttle mediation is that I shall “move” between the Participants by engaging in a telephone discussion with each of you in turn. (Individual meetings are often referred to as “in caucus”.) I shall explore your interests and sometimes act as devils advocate to probe and challenge the assumptions you have made. It is fundamental to my role as mediator that I will never pass confidential information to the other or prefer one of you over the other.

Technically, it would be possible for me to conduct the caucus meetings through conference software, in the same way as we started the process. However, I do not do that because to keep the software in operation but not used may involve technical stopping and starting which may trip one of us up. Furthermore, I fear the possibility of one of us inadvertently allowing the other participant to listen in or somehow receive information accidentally.

During each telephone discussion, we will include mention of the possibility of your sending a message to the other participant, through me as the intermediary. You can do that at any time. When I receive that note, probably while you are still on the phone, I will check that it is clear, then forward it. I shall not assess your note as to whether it is beneficial to you or to your conflict party. My impartiality is critical. I shall simply check that it means what I believe you intended to mean and that it will be read accordingly.

Your note to your conflict party could be a question, an offer, a response to an offer or almost anything else relevant to the dispute.

Communicating by telephone will probably require a between five and eight conversations with each participant. At each discussion, I will work as fast as reasonably possible to soothe fears, dampen unreasonable expectations, and encourage you to face facts. Nonetheless it is sometimes impossible to cut short a discussion simply because the other participant is likely to become bored as they sit and wait for their turn.

I shall try to spend the same amount of time in caucus with each of you. However, please do not be surprised or concerned if it does not quite work out that way. It never does.

Openness – how you negotiate

First, remember that you are in a negotiating situation. It’s quite reasonable that you might want to play your cards close to your chest . . . . and most certainly reasonable that you will not want to put all your concessions on the table in the first five minutes. On the other hand if you don’t make clear what’s important to you and how you reckon the settlement can be achieved, then obviously it will be harder to reach a satisfactory settlement. So do please put your cards on the table as early as possible.

Second, always remember that the mediation process is confidential and without prejudice. So don’t worry about giving away your litigation strategy. In the first place the chances are 9:1 that you will settle today. In the second place, the strict confidentiality we shall all have agreed, will prevent the other of you or their lawyers from bringing it up in court.

Third - now please don’t take this personally -  I have to say it. If you say or do anything which could be actionable such as lying or producing a fraudulent document and the truth emerged later then a judge might set aside the confidentiality of today and you could be hit hard. . . . . OK, I’ve said it. Let me move on.

Finally, please don’t be afraid of setting out your blue sky thinking. Give us your cunning plans and let’s hope they are more cunning even than Baldrick might have thought up.

Running over time

It is not uncommon for a mediation meeting to run over time. If it seems to me that it may not be possible to settle the dispute on the day, it is unlikely that I shall close the meeting simply on account of the passing of time. On the contrary, I shall be more determined than ever to see you achieve the settlement you want.

Now let’s look forward to your reaching a really positive and productive settlement on this special day.

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