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Face-to-face mediation – on the day

This is a short explanation of what happens. It is the same process for every face to face mediation, whatever the subject matter, the size, the importance or the value.

Online mediation follows a slightly different route.

“For you and your conflict-participant to sit down in the same room with a mediator present can be an amazing incentive to understand each other’s view point.”

Last-minute reminders

Here are a few personal reminders from Andrew Taylor

  • Read your position statement to yourself in front of the mirror. Decide whether you will actually read it at the meeting or memorise it, or use notes. (If you are reluctant to present personally, you will have exchanged position statements three days earlier.)
  • What other notes you bring to the meeting depends to a large extent on whether or not you are already involved in litigation. If yes, please bring three sets in hard copy of: claim and defence; witness statements; photographic evidence; professional reports; any other document you might wish to refer to during the mediation meeting; a one page index of all those documents. Of course, if you are confident that your conflict-participant will bring this set of documents, that is fine.
  • If you are involved in litigation, you will need to have a word with your solicitor so that you are up-to-date in your mind on the detail. Even if your solicitor is coming to the meeting with you it is still a good idea to make sure you are absolutely up-to-date on the state of the litigation and exactly what the judge said should be discussed at mediation.
  • Get costs estimates from your solicitor for taking your case to trial, in writing, well in advance of the mediation meeting. You need to know your downside.

Refresh your memory on these points.

  • 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?
  • For your eyes only, bring a list of what you think are the strengths and weaknesses of your case and of the case of your conflict participant.
  • 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 participant.
  • 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.

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 participant 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-participant 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.

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 participants outside of the limited range of possible orders a judge might make

Steps in the mediation procedure

Step 1

The day of the meeting arrives. After preliminary introductions, I will make a short presentation reminding you of the most important points in the mediation agreement you will have signed and explaining a little about the procedure for the day.

Step 2

I will then invite each participant to make a statement. We generally refer to this as your “position statement”. Despite the rather demanding name, the Mediator hopes that it does not turn out to be engraved in stone but rather, a straightforward analysis of what you would like to achieve for yourself at the meeting.

Step 3

After listening to what the other has said, each of you knows exactly what the other thinks the dispute is all about. I shall then invite each participant to ask questions.

If it seems to me that you are happy to talk together and are making progress in this negotiation, I shall not to call a halt immediately. So when I judge the time to be ripe I will conclude the negotiation and start the traditional “shuttle” process for which mediation is so well-known. This negotiation period could be no time at all or may extend to an hour or so.

Step 4

The shuttle process is where most of my work is done. It will take most of the time of the meeting too. My aim is to bring you together to find common ground, understand each other’s positions and eventually agree settlement terms.

I will discuss any question proposition or suggestion which I might have brought from the other participant. I may well run through options as to how you might decide to react to what the other participant has said. I will prompt you to consider a range of responses. I will not advise you.

As the day progresses, I should have been able to bring you closer to your conflict-participant 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.

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.

Step 5

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 guide you away from fruitless discussion of less relevant detail.

Step 6

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 guide you away from fruitless discussion of less relevant detail.

Step 7

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. 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 together, you 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.

When the participants finally separate, there are five alternatives:

  • You simply go home and carry out the agreed terms without any further professional help.
  • Each participant 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 participants will then sign
  • there remain issues to be discussed so the participants 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 participants and himself.
  • occasionally, for one reason or another there is no settlement “on the day” but over the next couple of weeks, the participants have had the opportunity to digests what has happened during the mediation process and probably to consult with others. They resume negotiation and do reach a settlement.
  • occasionally, no agreement has been reached.

More about the shuttle

The fundamental basis of shuttle mediation is that I move between the participants, exploring your interests and sometimes acting as devils advocate to probe and challenge the assumptions you have made. I will work as fast as reasonably possible to soothe fears, dampen unreasonable expectations, and encourage the participants to face facts.

It is fundamental to my role as mediator that I will never pass information to the other or prefer one of you over the other. Because of that, I shall not convey your messages to the other participant orally but only through a written note you will have handed to me. That could be a proposal, a comment, a response to what the other participant has sent to you or request for information, or to provide information.

The reality of the shuttle process is that I will probably speak to each participant separately not more than four or five times. 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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