Preparing for Mediation

Question 1

How can a mediator be selected?

Answer 1

• Can approach mediator directly
• Alternatively can engage the services of a provider to recommend one. The provider will likely also:
  
  • Arrange the date
  • Book the venue
  • Provide a mediation agreement
  • Ensure there are no conflicts of interest
  • Advise on the documents and statements that should be provided
  • Deal with concerns and queries
  • Fast-track, discounted mediation may be available for those who book their own
  • More than one may be needed in large, complex disputes. They may select mediators with different styles and expertise

Question 2

What are the factors affecting mediator selection?

Answer 2

Qualities required in an effective mediator

• Communication skills
• Observational skills
• Persistence, determination, diplomacy etc
• Impartial, neutral, ethical
• Sound legal, technical or factual knowledge

Factors influencing selection of a mediator

• Personal recommendation
• Personality
• Expertise in the subject-matter of the dispute
• Expertise as a lawyer
• Expertise as a professional in other fields
• Preferred style of mediation
• Practical experience as a mediator
• Accreditation
• Interview
• Language and cultural considerations
• A team of mediators

Question 3

How long does mediation last?

Answer 3

• Typically lasts a day, with negotiations commencing some way into the day
• A case with limited issues may take half a day
• Time-limited, fixed-fee mediations will usually last three hours
• Free mediations in Small Claims Court will usually last only one hour
• In complex, high-value cases, may last between two and five days
• Multi-party, family or international disputes can take place on a number of separate occasions over several months
• Best to book for one day and adjourn if necessary

Question 4

Selecting a venue

Answer 4

• The provider may do this, or may have rooms at their own premises
• A private practice mediator may conduct this at his own premises
• Otherwise the parties choose the time, date and venue
• A neutral venue is best (e.g. hotel or conference room) to ensure parties focus on the case
• May be held at solicitor’s office for cost saving, although one party may feel disadvantaged
• If mediation will run late, venue must be suitable
• Normally at least 3 rooms are required (1 for joint and 1 for each party)
• A 4th is desirable for the mediator, or joint meetings of solicitors/experts
• The layout of the joint room should not be adversarial, like a courtroom
• A single table big enough for all parties is ideal

Question 5

What is the mediation agreement?

Answer 5

• Mediation has no statutory framework in the UK
• Framework comes from the agreement between the mediator and the parties
• The mediator/ADR provider will send their standard form agreement in advance
• The parties will normally be asked to sign a single copy at the start, to psychologically reinforce their commitment
• The agreement is the contract between the mediator and the parties, setting out the terms on which the mediator is appointed and the scope

Most agreements contain the following key clauses:

• The scope of the mediation (reference to the dispute, or the particular issues)
• Practicalities (e.g. names of the parties, venue, date, confirmation of authority)
• Confidentiality (may be tailored to suit the parties’ circumstances)
• Protection by the Without Prejudice rule
• Mediator is neutral, impartial and won’t reveal confidential information
• Parties will not call the mediator as a witness in later proceedings or disclose any notes he made, and will indemnify him for the costs of resisting or responding to any such application
• Mediation will be conducted under the Code of Practice of the mediator/organisation
• Any settlement will not be binding until recorded in writing and signed by the parties
  
  • Although an oral agreement may be binding, and
  • A previous, unrecorded offer may be binding if the latest offer was not responded to
• Costs of the mediation and who is responsible for paying them
• • The courts recognise that agreements are valid and they contain enforceable terms.

Question 6

What happens in pre-mediation contact between the mediator and the parties?

Answer 6

• Pre-mediation meeting to info about mediation and try to persuade the parties to engage
• Once the parties do commit and a mediator has been appointed, pre-mediation contact may be necessary between the mediator and the lawyers/parties to enable him to get a better idea of the issues and to determine whether the process needs to be personalised
• All of this may take place in the same meeting, however the mediator will usually have the parties sign the Agreement to Mediate before further discussions.

If there has been no prior contact, the mediator will contact somehow in order to:

• Check the parties understand the process
• Obtain information on needs and objectives of the parties
• Discuss practical matters
• Identify the parties who will attend and advise on the documents to be provided
• Set the timetable and the dates by which steps should be taken (usually set out in a letter as well)
• Explore who is intending to take a lead in the negotiations and opening plenary, and role of the lay clients
• Explore with the lawyers (particularly where the party is a public body/company/partnership/backed by an insurer), that the representative has full authority to settle
• Form a view of the personalities of the parties involved and their feelings
• Discuss how to approach the structure

Question 7

Who will attend the mediation?

Answer 7

Factors influencing the selection of participants

• Who has direct knowledge of the factual issues
• Who is most closely and personally affected
• Who has the appropriate technical expertise
• Does resolution of a particular issue require expert evidence and an expert’s attendance
• Who has authority to settle
• What message will the identity and status of attendees send to the other side
• Representatives of the parties
• Parties who are individuals will most likely attend themselves
  
  • Parties may bring someone for support (who may need to sign a confidentiality agreement)
• Persons with authority to settle
  
  • If a Firm etc., whoever attends must have authority to settle up to the full value of the claim
  • Failure to do so may render the mediation ineffective
  • It will usually be an express term to ensure this
  • If genuinely impossible for someone with authority to attend, they should be available throughout the day for contact
  • It is not uncommon to find that the representative has limited authority
  • In this case, the parties may have to conclude the mediation by signing a ‘heads of agreement’ document that sets out the agreed terms subject to formal authorisation being obtained
  • This is risky because there is no settlement, so parties can change their minds
  • Alternatively, the mediation can be adjourned
• Lawyers
  
  • If solicitors have been instructed, they will usually attend (or counsel, instead)
  • It is important that one is present to advise on offers and concessions
  • A Pro Bono unit may be approached instead
  • The mediator cannot advise any party on the merits of an offer or their legal position
  • This will often be dispensed with in small claims mediations
• Insurers
• Interest groups
  
  • The other side and mediator must be notified of the names and position of each
• Experts
  
  • May be the one who is instructed for litigation
  • May be jointly instructed or jointly selected (following a pre-action protocol)
  • Each party may have obtained their own
  • The experts may be able to meet in a without prejudice meeting to see if they can narrow the issues and identify areas of agreement/dispute between them
  • If none has been appointed but it becomes beneficial, this is usually done jointly
  • An expert attendee may be asked to make a statement in a joint session and be questioned by the mediator or the parties, or just simply be present in private meetings to assist the mediator with technical issues that arise
  • Any of this must be agreed in advance
• Witnesses of fact
  
  • Rare
  • Where the case revolves around conflicting facts, the witness may attend so the mediator can clarify their accounts, either in joint or private
  • Even if they don’t give evidence, they may be asked to attend so they can answer any issues that arise or assist the mediator

Question 8

What are position statements?

Answer 8

• A statement setting out a party’s case
• Only likely to be required in complex cases, but may be useful even if not requested
• Where it is required, the mediator will usually stipulate the time limit for provision (usually 7-14 days in advance)
• Sometimes (particularly before proceedings are issued) lawyers should ask whether there should be sequential exchange of statements (with C having the right to reply to D’s)
• If an ADR order is made by the court, this may also direct the parties to exchange documents
• The position statement is not formal like a statement of case. It is primarily for the mediator.
  
  • Will help him be more effective in devising creative solutions and carrying out a ‘reality check’
  • Mediation will proceed more effectively and efficiently if each position is made clear in advance

Question 9

What will be in the position statement?

Answer 9

Content

• Heading (with names and descriptions of the parties, whose statement it is, and marked ‘without prejudice and for use in the Mediation only)
• Formalities (date, time, mediator’s name, attendees)
• Facts
• Issues (legal and factual)
• Outline of the party’s case (with reference to evidence and documents)
• Party’s interests and objectives (e.g. costs, desire to preserve relationships, factors that influenced the party to mediate, and intention to resolve, prepared to proceed to trial)
• If the case summary is undisclosed and is for the mediator only, this should be clearly stated
• Parties may also wish to set out an opening offer or draw conditions (or e.g., if an agreement can be reached in relation to one thing, C will drop its claim in relation to the other issue)
• If proceedings have been issued already and parties have prepared an agreed case summary and list of issues (e.g. for a CMC), a position statement is not needed. Reference can just be made to the document and a copy annexed.
• If they have not been issued, the position statement should be as full and clear as possible
• The position statement should always be accompanied by 2 separate documents, agreed with the other side:
  
  • Chronology: dates relevant to the case and negotiation & proceedings history
  • Dramatis personae: (for the mediator) which identifies the parties, legal advisers, experts, witnesses, insurers and the name of the person with authority to settle

Joint position statement

• Likely to be limited to the facts, issues and an explanation of each party’s case.

Question 10

What are the key supporting documents for a party’s case?

Answer 10

• Each party prepares a bundle of key documents
• Voluminous bundles will rack up costs, because hours will be spent on preparation
• Mediators may stipulate the maximum length

The documents are necessary to:

• Inform the mediator of the facts
• Enable the mediator to adequately test the other side’s case
• Support the party’s case and its objectives

Agreed bundle

Should consist of

• Statements of case if proceedings have been issued; letters of claim if they have not
• Witness statements that have been disclosed
• Expert reports that have been disclosed (or key sections)
• Any case management orders that have been made
• Part 36 or other offers
• Any key documents
• Any other relevant correspondence

Confidential bundles

• Documents setting out the party’s view of the case
• Issues they may be willing to compromise on
• A draft expert’s report or witness statement
• Counsel’s opinion on liability/quantum

Care should be taken to mark this as ‘strictly confidently’ and to explicitly state this should not be disclosed to the other side.

Although disclosure is not obligatory if the parties don’t want, they should bear in mind that the CPR encourages ‘cards on the table’. If the document would have to be disclosed in litigation, it’s best to disclose it here.

Failure to do so risks the settlement being overturned on grounds of misrepresentation

The mediator may refuse to communicate any information or offer which is directly contradicted by a confidential document, on ethical grounds.

Question 11

How should position statements and documents be disclosed?

Answer 11

• Lawyers and mediators discuss whether disclosure should be simultaneous or sequential
• Parties may send copies directly or through the mediator/ADR provider
• Parties should ensure that any other documents are also provided

Question 12

What other information may the mediator seek before mediation?

Answer 12

• Clarification of further information
• Further info about offers or negotiations that have taken place and why they were rejected
• Key objectives, and an indication of concessions or offers they would be willing to make
• Method of funding
• Nature of any costs orders that may already have been made
• Costs incurred to date, and further costs likely if settlement is not reached

Question 13

What other steps may be taken to prepare?

Answer 13

• Full risk assessment based on detailed analysis of legal and factual merits, evidence to support the case and how further evidence could be obtained
• Consideration of arguments and counter-arguments
• Selection of appropriate styles and strategies
• Offers and concessions to be made or demanded
• Calculation of each party’s BATNA and WATNA
• Full costs review & full breakdown

Question 14

What are the key stages of mediation?