Using documents to support your case

Why documents are important

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.

The Mediator needs to know what the dispute is about and how you could support your case if you went court. That is about evidence. Documentary evidence is particularly important in court.

When you book your mediation, you instruct for a particular number of hours of work by the Mediator. That should include sufficient time for the mediator to read the documents and to assess your case. As an approximation, the mediator 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. This is clear on our prices page.

BUT . . . .there is nothing magical about documents at mediation. You can then present to your case to the Mediator and to your conflict party in any way you wish. Many simple cases require no documents at all – though you do always need a position statement. Despite that, the volume of documents does tend to correlate with the value and complexity of your dispute.

Public and private documents

There are two categories of document: documents private to the mediator and documents which you have already disclosed to your conflict party or will disclose shortly as your position statement. 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.

The only important private document is what you set down as your own story for the Mediator  – absolutely in confidence. This document can be in any form and as long or as short as you think best. You can refer to other documents – or not – as you wish. It is usually useful if you draw your position statement first so that you can refer to it in the story you want to tell the Mediator.

In the public category, there need be no more than your position statement. That document sets out in succinct points what you want from the mediation process. Alternatively the history of your case and the references you need in support of your position statement may require support from a large number of documents.

Points to note

  • For an online mediation, it is more important that it is comprehensive because there is no opportunity to explain face-to-face.
  •  If the Mediator discusses any aspect of your case on the phone with you, he does not take notes. He will rely for information only on the documents you send.

Exactly what documents you might consider

Many mediators give serious attention to the documents only at the beginning of a live meeting. In family law cases (divorce and so on) many mediators have no interest at all in documents. That is not a good idea because not everyone is equally good at remembering what to say and saying it in the most effective way. What’s more, it also wastes precious time and does not allow for careful reading, research and quiet consideration.

Our mediator does not work like that. He starts the mediation process in his own office by carefully reading whatever documents you have uploaded and considers not only what might happen in court, but what each party is looking for from the mediation process and what alternatives should be considered.

Documents we shall specifically ask for

The first task we ask of you after you are committed to mediation, is to provide whatever documents you would like to use in the course of the mediation. In most cases, we shall ask you for:

  • documents that you think are important as background to your dispute, many of which will already have been seen by your conflict party;
  • your position statement - a statement of what you want from your counter-party at the mediation, and why;
  •  your confidential note to the Mediator, including an explanation of your ideal outcome
  • comments about your negotiations to date;
  • any other points you think might be helpful to the Mediator.

Points to bear in mind

  • We do not restrict what documents you wish to use or how many of them but if you load up the Mediator with more reading time than our prices and contract provide for, then we shall send a supplementary invoice when the mediation is over, just as we would do if time went over for a mediation meeting.
  • Our mediation process will help you to decide when and how to upload documents.
  • 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.
  • If you wish, you can include supporting documents originating from your conflict party - in case he chooses to omit them.
  • 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 knows this point.
  • You are more likely to be able to settle if your conflict-party is aware of exactly what you want and why. You may have been arguing for months, but details get lost and forgotten. Email message are deleted, and so on. That is why we encourage you to provide a position statement.
  • Please make it easy for all of us to understand your documents. 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 land plan, find something simpler than a 10 character alpha-numeric reference used by an architect. PLEASE do not bundle separate documents together in a pdf file.
  •  Please avoid using external links. Every reference should be evidenced by a specific document you have uploaded.
  • The best approach is to make sure your skeleton argument contains your full case and use other documents only to support what you say there.
  •  Remember that your conflict party may not be prepared to spend a lot of time reading documents they might regard as excessive.

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.