Getting the best from a mediation

The following has been put together from the perspective of CEDR Solve mediators, many of whom are experienced litigators. They have seen both good and bad practice from lawyers representing clients in a mediation.

The most important fact is that you have the power over the choice of mediator. Don’t limit yourself to names only known by your colleagues. Even if the specialism required is the same, the character and style could be different to your client’s needs.

Understanding the mediator’s role and mediation process is also crucial. The mediator is there not to pass a judgement but to facilitate the clients to reach a mutually acceptable commercial solution. The mediation itself provides the best opportunity for the direct negotiation of deals and the quick resolution of otherwise time-consuming and expensive disputes.

Lawyers entering the mediation process need to:

  • Understand the mediation process as being different to any legal process.
  • Understand that the lawyer plays a different role - moving away from one of advocate and controller towards one of adviser and supporter, allowing their client to be in control.
  • Provide advice in the context of a commercial negotiation and not dominate the process with legal issues, albeit reassessing the client’s legal position throughout the mediation.
  • Understand the dynamics within their team, particularly the pressures and problems for experts and consultants, and keep them focused on achieving a commercial settlement.
  • Accept that asserting or defending a client’s best case may not produce the best commercial solution for that client.
  • Agree tactics for the mediation but be reactive and flexible to developments during the mediation: a prior risk analysis may need adjustment in the light of developments at the mediation.
  • Use the mediator’s neutrality to test out each side’s case.
  • Use the mediation pro-actively by offering suggestions to the mediator, meeting with the other lawyers and testing alternative solutions.
  • Have a strategy for using waiting time in the mediation usefully and creatively – reassessing risk analyses or testing alternative solutions.

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