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Mediation Preparation Guidance Notes

Document Cited in Related
Vincent
AuthorStephen Walker/David Smith
Pages211-213
Appendix 2

Mediation Preparation Guidance Notes1

The following points are designed to help you prepare your case and present it on the day.

Know your case

The more familiar you are with the issues of the case and the interests of those involved, the better you will be able to effectively present it. Prior to the sessions you should have considered the following:

• Do you have all the information necessary to evaluate the case – for example do you have all the necessary expert evidence to support your claim?

• Know the facts and witnesses involved in the case. Whilst they will probably not be required at the mediation it is likely that you will be discussing them.

• Identify and analyse the key issues.

• List the strengths and weaknesses of your case. If possible do the same for your opponent. This can be a useful tool to help the mediator develop tough questions for them.

• Consider and confirm who will be attending. Make sure all those with authority to settle will be there. Confirm the same from the other side.

Develop a settlement strategy

If you have not developed a settlement strategy then resolving the dispute on the day will be more difficult. There are a number of key considerations that you should review to establish what your settlement parameters are and whether they are reasonable:

• Determine your position on liability and damages. What issues or information may cause you to change your mind?

• Develop a negotiation plan including where you want to settle and how you plan to get there.

1Reproduced by kind permission of ADR Group (www.adrgroup.co.uk).

212 Advising and Representing Clients at Mediation

• Consider the language and terminology you use on the day. For instance, avoid basing your offer on the age of the case (‘I never offer that much this early …’). Phrases such as this in an opening session can have a hugely detrimental effect on the whole session.

• Plan to offer or demand what you will eventually be prepared to settle for.

• The mediator is not just a messenger. Allow him some leeway in developing possible settlements. Remember the mediator will know much more about each party’s position than you will and phrases such as ‘substantial movement has occurred’ may be much more progressive than monetary offers.

• Be candid with the mediator. Assist him in determining the best method of persuading the other side of your position.

• Determine if there are any facts...

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