Physical Preparation - Position Papers and Bundles
| Author | Stephen Walker/David Smith |
| Pages | 79-99 |
6.1 Introduction
The mediator has been appointed; the date and the venue fixed. Now the real work for the representative starts. Proper preparation is vital. We discuss in Chapters 7 and 8 how to prepare yourself and the client mentally for mediation. In this chapter, we discuss the preparation of the physical items and consider position papers, bundles and draft documents.
6.1.1 Two reasons why mediations fail
As we said in Chapter 1, the two main reasons why mediations do not settle on the day are lack of preparation before the day and lack of engagement on the day.
6.1.2 Preparation in general
Preparation for mediations needs to be rebalanced. There are two general observations to be made about preparation.
Preparations are for peace talks
• Representatives must remember that they are preparing for peace discussions and they should co-operate in their preparation for them. Far too often, preparation becomes litigation by proxy with disputes about the index, what documents should be in the mediation bundle and the arrangements for exchanging position papers. If clients intend to meet at the mediation to negotiate a settlement, it is pointless for their representatives to have been falling out over these sorts of matters. They do not help their clients at all. Representatives should resist pressure from clients to argue these issues. A pressure to do so usually misunderstands the purpose of mediation, and a client who wants their representative to fight over mediator choice or venue is
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likely to benefit more from a discussion about what mediation is about and what it will do for them.
• Representatives should resist the temptation to concentrate on rehearsing the best points in their client’s case instead of working out possible settlement structures. Settlement is, after all, what mediation is about.
Preparation should be proportionate
• Much of the advice given by trainers and commentators to representatives seems to assume that representatives and their clients work without any time or budgetary constraints. For most representatives and their clients there are constraints.
• Mediators often complain about the poor standard of preparation for mediations when compared with that for a court hearing. There is much truth in this. Many mediators say that as a rule of thumb the amount and style of preparation for a serious mediation should be similar to that required for a pre-trial review of a multi-track case.
However, the important point to remember is that preparation has to be proportionate and relevant both to the nature and scale of the dispute and to the resources available to the parties, whether time, money or effort. Rarely are they infinite. Cloth has to be cut accordingly.
Too much of the available time, money and effort is spent on preparing the case and not enough on preparing the settlement. It is not so much that more total effort is needed to prepare for a mediation but rather that the effort needs to be better directed.
6.1.3 Why are parties under-prepared?
Parties attending mediations are often less well prepared than they would be if they were attending a hearing at a court. They are making life harder for themselves. Why is this? They appear to think that:
• Mediations are less formal than court hearings: there is no judge who can punish a party who is not prepared. This is true, but while mediations are less formal they are still important and the job must still be done. Mediators will not usually express their annoyance in the way that a judge can and they have no power to punish, but lack of preparation, for example by not having an up-to-date calculation of damages, may frustrate the other side, will make them doubt willingness to settle, and makes it harder for them to obtain any required authority to settle.
• A mediation is not a trial so parties need not prove anything: they do not need all the evidence that they would need at trial. This is also true, but
information gaps are frequently obstacles to settlement. So, if the other side are saying that they need up-to-date or more detailed calculations, it is better if they can be shown to them and not just stated. Evidence should be focused less on proving the case and more on demonstrating the basis of calculation of the financial elements of a settlement.
• Mediation is not a one-off: if the parties do not settle today, they can always have another go later. Again, this is true, but second attempts are not free. Even if the parties negotiate direct without involving the mediator and thereby limit further cost, they still spend more time and someone ends up paying for that.
6.1.4 Mediators’ guidance notes
Mediators, whether appointed on a direct basis or through a mediation provider, will have their own standard guidance for mediation documents. These are advisory not mandatory. The CPR do not apply. Some issue guidance, which reads like directions for a trial with strict deadlines for delivery of agreed bundles and chronologies, dates for sending in position papers, and stipulations about content and length. If their requirements can be met, all well and good, but sometimes they cannot be or it is not in the parties’ interest to do so. For example, a party may not want to exchange position papers (this is discussed in more detail in para 6.2.10) or there may be a tight budget, which will not permit hours of work on preparing and agreeing bespoke chronologies and core bundles. If mediators are told this, they rarely object. If they do object, they may be unsuitable for your mediation and their appointment can always be reconsidered. It is a competitive market out there.
Late delivery of documents
The issue that does cause anxiety amongst mediators is late delivery of documents. All mediators want to do a good job on the day. They want to be properly prepared and to understand the dispute. Therefore they need some reading time. Mediators report that there is an increasing tendency for documents to be delivered later and later. Some can become quite annoyed about this, others are more relaxed, but it is not a good idea to upset the mediator just before the mediation. The representative should at least let them have the papers before the weekend preceding the mediation.
6.1.5 Pre-mediation conversations
Many potential difficulties can be avoided by talking to mediators soon after the representative has appointed them. Most mediators will contact
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the representatives. Some only do this after they have read the papers; others do it soon after the appointment so that they can discuss what they really need by way of information and documentation. There is no need for the representative to wait for the mediator to get in touch; the representative could take the initiative and call the mediator.
When speaking to mediators, representatives should make sure they confirm that everything that is said to them is confidential and not for disclosure to the other side. Most mediators volunteer this assurance at the beginning of the conversation, but it is as well to make sure. This should be expressly agreed even in advance of signing the mediation agreement. As a general rule it is always wise to be very clear with a mediator what is confidential, and what can be passed on.
What to talk about with the mediator
Most mediators welcome pre-mediation conversations. Representatives should make themselves available to talk to the mediator and prepare themselves for the conversation. They can tell the mediator:
• about their client;
• who will be there and why;
• about any personality issues;
• about any sensitive topics to be avoided in the mediation;
• how they see the dispute;
• what they think that the obstacles to settlement are.
It is an opportunity to exercise an early influence on the agenda for the mediation. Many people are very cagey when talking to mediators in a pre-mediation conversation. This is not helpful and misunderstands the mediator’s role. Mediators will not tell the other side that the representative thinks they have a weak case. The representative should tell the mediator if there have been previous offers that were attractive to their client but fell short in specific ways or if a particular approach by the mediator is likely to antagonise their client. The objective is to settle the dispute, and giving mediators information which will help them to do this is in the clients’ interests.
Pre-mediation meetings
Sometimes it is suggested that there should be a pre-mediation meeting with the mediator. This may be just one side and the mediator; it may be with the mediator and both sides’ representatives without their clients, which becomes some sort of mediation management discussion. Such
meetings are not often used in England and Wales for the ordinary run of civil and commercial cases, but they are more common in Scotland. In most cases, they are not necessary. They, after all, come at a cost to the client, which will be disproportionate in many cases. The lawyers will charge even if the mediator includes the pre-mediation meeting within his fee.
When are meetings useful?
There are three circumstances when they can be useful:
1. Where there are several parties and the process at the mediation will need careful management so that it does not become unworkable.
2. Where a client has some concerns about either mediation as a concept or the mediation process on the day.
3. Where a client wants to get something off their chest, which will take a long time at the mediation or will disrupt the settlement process. A mediator can discuss the client’s concerns and allay their fears. Some pre-mediation interchange...
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