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. If yes, please bring: 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.

If no litigation, please just consider are suggestions about documents. Have you given the Mediator copies of all the relevant papers which your conflict party may already have seen?

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.

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?
  • 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.
  • 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 party 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.

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 parties outside of the limited range of possible orders a judge might make.

The meeting starts

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

The Mediator will start with a short explanation of how he proposes to conduct the day and a few reminders of important points relating to the procedure. He will then move on to give each of you the opportunity to set out what you would like from the mediation. We choose those words carefully. This is not intended to be an opportunity either to demand the impossible or to express yourself in ways which will arouse strong emotion in your conflict party which will almost certainly prejudice resolution of the dispute. However, it is most certainly an opportunity to say what you want and why you want it. No one is expected to be free of the emotions which have naturally arisen, often over a long period of time. Elsewhere we have explained fully what a position statement involves.

When both of you have spoken – and listened, the Mediator will give each of you the opportunity to ask questions of the other. That usually develops into a negotiation.

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, exploring your interests and sometimes gently challenging the assumptions you have made. It is fundamental to his role as a mediator that he will never pass information to the other or prefer one of you over the other. The only information he will be prepared to pass to the other is a written question or proposal, which 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.

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 on the main issues, which will have been discussed at some length. Sometimes, the mediator will now take a stronger line with both participants to encourage you to understand that some of what you seek is simply not available. He 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 return to an open meeting, where he will guide the participants in writing down what they have agreed as a legally binding memorandum of understanding. 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.

Running over time

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.

We look forward to helping you to reach a really positive and productive settlement on this special day.