What happens on the day of mediation

Remember to bring these notes

What notes you bring to the meeting depends to a large extent on whether or not you are already involved in litigation. There are more considerations if you are than if not.

If you are, 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 – it is not always the entire dispute in the round.

Here are some of the points you might consider:

  • What evidence have you to support your case? Have you given the Mediator copies of all the relevant papers which your conflict party may already have seen?
  • 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 settlements through mediation
  • 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 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.
  • Thing up what concessions you might be able to make at some stage, if not upfront, at little cost.
  • If the dispute is ultimately a disagreement about money value, have you considered bringing an expert witness to the mediation? Remember that the mediator needs to know this well in advance. Your conflict party will also be entitled to bring his/her expert whose ideas may be in conflict with those of your expert You do not need your solicitor to be present just because you have an expert witness.
  • If you have been involved with your solicitor then legal costs will already be a big deal. Get costs information in writing from your solicitor in advance, including the implications for your conflict party. There is no reason why you should not produce a document setting out the costs implications, well in advance of the mediation meeting.

By the way, think carefully before you disclosed to your conflict party, information which obviously helps your case but which may give away too much – for example counsel’s opinion or an expert’s report which is not as favourable as you might have wished.

The meeting starts

You have booked the date. You have arranged the venue.. The fact is that we are together now to try to thrash out an agreement both sides are happy with.

Provided both sides have agreed to speak together and with the Mediator in the same room, the Mediator will start with a very short explanation of how he proposes to conduct the day. He will then move on to give both sides the opportunity to ask questions face to face. That is effectively a negotiation. That first meeting can sometimes develop usefully into an ongoing negotiation with the Mediator as referee.

If it appears to the Mediator that progress is being made he will encourage the parties to continue the negotiation. If it seems to drift or hit problems he will suggest that one party should move to the second allocated room while he talks to first one, and then the other.

If alternatively, one party says they would prefer to separate right away, the Mediator will ask you to do that.

The shuttle

The fundamental basis of shuttle mediation is that the Mediator should move between the parties, negotiating on behalf of both, without preferring either. So whatever you ask us to put to your conflict party we will do as you ask, provided only that your proposition could lead in the direction of a settlement.

The reality of the shuttle process is that the Mediator will probably speak to each party separately not more than four or five times. At each discussion, the Mediator will work as fast as reasonably possible to soothe fears, dampen unreasonable expectations, and encourage the parties to face facts. Nonetheless it is sometimes impossible to cut short a discussion simply because the other party is likely to become bored as they sit and wait for their turn.

The Mediator is very much in your hands as to the length and content of these discussions. You can use the time when the mediator is talking to your conflict party to test and check over your own case but it is always a good idea to bring other work or reading material.

As we have discussed at length elsewhere, the Mediator’s task is to soothe fears, dampen unreasonable expectations, and encourage the parties to face facts. At the start of your mediation process, it is likely that you will start with fixed ideas and a positive determination to seek your best outcome. That is as it should be.

The Mediator may gradually take a tougher line

As the day progresses, the mediator should have been able to bring you closer to your conflict party and the main points at issue will have been discussed at some length. Later still, the mediator will have taken a stronger line with both participants to encourage you to understand that some of what you seek is simply not available.

After some hours of discussion it is usual for participants to have found areas of common ground and becoming ever closer to a deal acceptable to both sides. If that does not happen in the way of things, then the Mediator will advise and cajole the parties increasingly strongly and may give more emphasis to the adverse consequences of failing to achieve a settlement.

Provided your dispute is one of the 87% of cases which settle at mediation, the Mediator will close the shuttle process early enough to be able to set down what has been agreed. It will be as a binding memorandum of understanding(except in the divorce case, when it will be a draft for your solicitor to draw your consent order). You can use it as your final document or both sides can go back to their solicitor to dot the “i”s and cross the “t”s in a more detailed version.

An awful lot of talking

It is not uncommon for a mediation meeting to run over time. When the Mediator believes that it may no longer be possible to settle the dispute on the day but does nevertheless see that continuing is better than stopping, he will not close the meeting simply on account of the passing of time. On the contrary, he will be more determined than ever to see you achieve the settlement you want.

Ultimately, if there is a cast-iron reason why one of the parties can no longer continue, or it has become clear that all of us are becoming exhausted, then the meeting may have to be adjourned.

Meeting by teleconference or telephone

We would like to see all of our administration and communication managed as far as possible through software. However, that is not likely to happen any time soon. One particular area where technology could be applied immediately is to hold meetings via the Internet or telecommunications.

We do not presently promote meetings using even a modest level of technology because:

  1. the communications infrastructure is not always as reliable as we would wish;
  2. although most people could easily manage to use such technology, if they have no specific experience, then even a modest learning curve wastes their time and resources;
  3. many people do not have instant access to the hardware and software requirements.

Today, the extent of our use of communications technology is merely to use email, telephone and Skype. If you would like to suggest something more sophisticated we are happy to consider it. Please accept however, that the mediator too, will be reluctant to spend time learning process that may not be used again for some time.

In the meantime, we are very happy to offer online mediation – by email, telephone and possibly Skype or some alternative VoIP programme. Exactly what method of communication we use is for you to propose. There is no reason why the usual “shuttle” process cannot take place via VoIP. Indeed, arrangements could be made for us to “meet” in this way, at an appointed day and time with a view to concluding the mediation at that “meeting”.

Would you like to consider the advantages of online mediation?