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Establishing a credible argument
Mediation is negotiation on steroids - but with a referee. By its nature, negotiation is adversarial. That means trust is sometimes in short supply. Just as if you had taken your case to court, “evidence” helps to increase the credibility of what you say. I have no idea exactly why, but we all take more notice of what is written in a document than if someone spoke the same words to us.
Of course, the most important documents are those written by an authoritative third party. That could be a property valuation, or a schedule of prices of cobalt over a 12 month period, or rent comparables in Cambridge or official tasks of someone at your job description level. Photographic evidence is particularly credible.
Assemble your written record
The essence of your case is contained in your position statement. If you have been discussing an issue with your conflict party over a period of time, you could reasonably assume that he/she has read all of the important documents put forward by both you and them and either remembers or has recorded all the salient points of your several discussions. You would be wrong. Your memory will have assimilated all that your brain tells it is important to you. In the same way, your conflict party will have taken in all the data most important to him/her.
He will have forgotten much of it. He will have forgotten the concessions he/she suggested a year ago. He will have forgotten what he/she owes you morally for help you gave him/her only last year.
Conversely, when you receive his/her position statement, you too might not recall reasons why you should consider his/her latest proposals seriously.
In a word, mediation is not about sitting down and hoping the mediator will pull rabbits out of his/her hat. That is why it is important that you yourself take time to consider exactly what you want for mediation and how you will best support your case.
Refreshing your own memory
Another advantage of using documents is that the exercise in assembling them (or reading them afresh if you did not personally assemble them) is that the content will be fresh in your mind. Fresh to see the possibilities the mediator suggests; fresh to consider what your adversary might offer; fresh to assess the costs and values today that will certainly be different from what they were a year ago.
You will find that assembling your documents will prompt you to edit both your chronology and your skeleton case. You will be reminded of what was said long ago and will have a fresh opportunity to consider the strengths and weaknesses of your case and how you can best explain it to your adversary.
Finally, remember that the Mediator has allocated a limited time to reading and understanding your documents, undertaking modest research and identifying the likely strengths and weaknesses of your case if you were to take it to court. If the documents you send to the Mediator require further attention, we shall ask you to allocate additional mediator time.
