This information applies to every type of mediation.
A document is any written record in any medium. It could be a letter, a drawing, a note, or something else. The medium is immaterial.
There are two categories of document: documents private to the Mediator and documents which you are happy to disclose to your conflict party.
When you upload a document to our website, the process requires you to choose specifically whether what you are uploading is “public” or private to the Mediator. Public documents are immediately accessible to your conflict-party as theirs are to you.
You may upload private documents, for example:
- specifically to inform the Mediator of facts you do not intend immediately to disclose to your conflict party; or
- to inform the Mediator of the background history from your perspective; or
- to comment about your negotiations to date; or
- to explain to the Mediator, what your ideal outcome would be ; or
- to disclose any other confidential information to the Mediator. In this regard, you should remember that you will have plenty of opportunity during the hearing to explain confidential information verbally.
What you send to the Mediator privately is entirely for you. However, do remember that the first priority of the Mediator is absolute impartiality. That means he will read whatever documents you upload but will not use what you say directly to support your case. He will regard all documents simply as part of the history and the background of the mediation day.
As far as public documents are concerned, please recognise that there is a difference between setting out the history of the dispute, on the one hand and stirring up emotions on the other hand.
Your public documents may be useful:
- To provide a summary of the history of the dispute as you see it, or
- To either amplify or summarise what you intend to say at the mediation meeting as your position statement, or
- To provide for all three parties, a convenient set of any documents directly related to litigation threatened or activated.
In the public category, there need be no more than your position statement.. You don’t even have to prepare a written position statement if you choose not to do so. However, to be able to state your case clearly at the start of the mediation meeting, both when addressing your conflict party and when informing the Mediator, you will find you speak more confidently if you have at the very least a good set of notes.
The Mediator will start the mediation process in his own office by carefully reading whatever documents you have uploaded. But please do not assume that the Mediator will be available to go through a ring binder of documents uploaded only a day or two before the date of the mediation.
It is extremely useful, as a great deal of time at the mediation meeting, if you or is your solicitors can agree a “bundle” of open documents. You can disagree of course as to their effect but simply to provide an agreed history in that way is a good start.
For an online mediation, it is more important that your document submission is comprehensive because there is no opportunity to explain face-to-face.
Your position statement
Your position statement is an explanation of what you want from your counter-party at the mediation, and why. It is your starting point in your negotiation.
The best approach is to make sure your position statement contains your full case and use other documents only to support what you say there.
It is entirely up to you as to whether you produce a position statement in advance of the meeting is an open document, or upload it privately to the Mediator, or simply keep it yourself until the mediation meeting.
Using documents on the day
The Mediator will permit only hard copy at the mediation meeting. That is because humans instinctively interact through voice and body language. Three people staring at their screens is not conducive to a successful outcome. Much better if you bring three copies of your own documents.
The Mediator will not be happy if you produce new documents at a live meeting. A mediation meeting is different from a TV drama where the hero produces last minute evidence! If your solicitor attends your mediation meeting it is important that he/she accepts this point.
No devices will be used during the mediation meeting so please do not rely on using external links. Every reference should be evidenced by a hard copy document you have brought with you.
We provide a very easy document upload process, as you would expect.
This applies in particular to clinical negligence, intellectual property and other cases where financial compensation relies strongly on technical evidence.
If you think the evidence of an expert witness would be critical if you went to court, then consider the desirability of bringing such an expert to the mediation meeting. 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.
Why do we suggest this? Because expert opinions tend to favour the person who pays their bill. However, in the informal, private and confidential atmosphere of a mediation, they tend to come closer together and may provoke an adjustment to the assumptions behind what you and your conflict party believe.
Please help us with these small points
- When you book your mediation, you instruct for a particular number of hours of work by the Mediator. That should include sufficient time for him to read the documents and to assess your case. As an approximation, the expects to spend time on this preliminary case assessment in the order of 30% of the total time actually ordered by you for the mediation process, whether that is online, by email, or live (plus another 20% in correspondence, phone calls and administration).
- Please make it easy for all of us to search for a document. For example a file name should be the same as the name of document – maybe abbreviated. Photos must be very simply and carefully marked, for example: A1, A2, A3, B1, B2, etc. If you use a construction or other technical plan, please name the file with something simpler than the 20 character alpha-numeric reference used by a draftsman finally, PLEASE do not bundle separate documents together in a pdf file.
- If you feel it is essential to disclose a large volume of documents, we suggest you ask us to allocate additional time (email). There will be no issue about the volume of your documents provided the parties agree that the additional time of the Mediator should be properly covered by an additional fee.
We can also give you yet more hints on how best to use documents to support your case.