Seven Ways to Successfully Prepare for your Mediation
by Andy Rogers
Seven Ways to Successfully Prepare for your Mediation
Entire books could – and have – been written about how to be successful in commercial mediation, or any negotiation for that matter.
But here are seven, straightforward tips that you can follow to maximise your chances of getting a good deal in mediation before you even sit down at the table.
These tips apply equally to online and face-to-face mediations.
Convincing the Other Side to Mediate
You may be the only person (other than the mediator) who thinks that mediation is a good idea.
However, if you are a lawyer recommending mediation, whether in-house or external or the actual party to the case, there are potentially two parts to the challenge: convincing those in-house to come on board and agreeing to the mediation with the other side.
The key to getting in-house buy-in, if it is lacking, is to get the key players involved from an early date, consult with them on possible negotiation strategy, the choice of the mediator and even when and where to mediate. The more involved they become the more willing they should be to participate.
Getting the agreement of your opponents to mediate may involve similar tactics, yet you may need to be a little more calculated in how you approach their possible opposition. So, for example when getting them involved in agreeing the mediation give them choices of dates, location and even mediators, all from a list which is acceptable for you.
Additionally, explore bringing, where possible, a chosen mediator into the conversation as early as possible. They can help talk through all aspects of the process with individuals who are sceptical or apprehensive.
It should also be noted that CEDR reports biennially on all cases in the UK, a mediation settlement rate of circa 75% on the day of the mediation and 15% in the days following. This impressive statistic can help to convince unwilling parties of the process’ merit.
Be Tactical – and Sensible – with Logistics
The main objective is to negotiate a deal within a certain timeframe, therefore, if you can, be flexible over venue or which day of the month to mediate or even what time zone to start in.
If possible ‘bring the mountain to Mohammed’ if it is more likely to get your opponent to the table.
Also don’t use logistics to punish the other side, however tempting. If you are mediating in your own offices don’t put the other side’s private room in a windowless basement (unless you are in one too).
Cooperation with the other side is a quality to be fostered whenever possible to help down the line with settlement discussions.
Choose your Mediator Wisely
Mediators come in all shapes and sizes with different levels of experience (and fees) and importantly with different styles.
There are commercial mediators with a wide range of experience, from a variety of industry sectors and dispute types and this is all-important, but so too can be the approach that the mediator is likely to take.
If you think the dispute needs a robust approach then choose your mediator accordingly. Likewise, if the dispute has been traumatic for the key players then you may wish to engage a mediator with the appropriate level of inter-personal skills to chair the mediation day.
All this is the kind of information that should be available to prospective parties on the mediators’ resume or CV, which can be invaluable especially if the mediator is not a referral or someone you have worked with before.
If you have any doubts about the mediator or how they might conduct the process then don’t be afraid to speak prospective candidates before they are appointed. Moreover, if the other side has any doubts, suggest to them and the mediator that they speak with each other.
If you struggle getting names of suitable, qualified mediators that is why Mediation Service Providers, like CEDR, exist.
A Service Provider will have a panel of mediators and should be able to handle the logistics if needed and if Registered with the Civil Mediation Council (CMC) will have checked the Mediator’s Experience, Training Qualification and Insurance.
If you don’t go with a CMC Registered Service Provider, as a bare minimum, at least check that the mediator is directly Registered with the CMC.
Agree the Rules of the Mediation
The mediation process is designed to get parties to a resolution and within a basic framework, there is huge scope to adapt the process to fit the needs of the case.
So, if your case is particularly complex you can work with the mediator, service provider and other side to bespoke what you need whether it be using technology, or additional days and multiple parties.
The mediation should also be set up to give you protection and again this is something that you should check and can bespoke if necessary.
Are there particular conditions around confidentiality that need to be respected and do you need to pre-agree process requirements in the mediation?
Having a robust, and if need be, tailored, Agreement to Mediate (such CEDR’s much-used Model Agreement that has been successfully tested and proven in the High Court) can be invaluable to building everyone’s confidence.
Educate the Mediator
We have already mentioned speaking directly to the mediator before the appointment is made, but in between the appointment and before the day of mediation communication with your mediator is an absolute must.
Make sure the mediator can see the case through your eyes and equally important, share with the mediator what you think the other side is likely to do in the mediation.
That way the mediator can have some idea of how a mediation might unfold and what might be the most productive way to run the process.
If your case is a claim that has been running for over a year, the case bundle, including submitted claims and defence will be important, however, it may also be huge.
The mediator will not be evaluating your case within the time you have and so a summary or mediation statement will be important.
If you can prepare a joint statement with the other side setting out the main issues between you that is excellent. If not individual statements will suffice and ideally these can be shared with everyone at the mediation.
Build your Team
Whilst many mediations see a client and a lawyer on each side of the table, some mediations involve the use of a team rather than individuals in preparing and going into the process.
It is important to ensure that those who will be members of the team are the individuals who will be able to contribute to a successful negotiation. Accordingly, the person most closely associated with the dispute is not necessarily the best person to reach an outcome.
A team for mediation is likely chosen because of their already-existing familiarity with the issue being negotiated. However, it is important that team members are kept up-to-date with what exactly will be negotiated (the court case is not the same as the mediation).
Furthermore, team members should understand the role that each plays in the negotiation, in order to feel useful to the team, to work efficiently, and to keep morale high.
Are you there to provide information, support or to make decisions?
Whilst you are working on your own team know that the other side may be working on theirs. Think about who they may be bringing to the mediation, how they might behave and what roles they might take. Make sure that, if possible, you are prepared for what the other team may bring.
Additionally, if they are sending a senior director, try and match their seniority and don’t send a junior member of the organisation as this has the potential to cause offence.
Building on this, is important to ensure that there is someone at the mediation, either in-person, or on-hand, who has authority to settle. Also important to consider, if the person who has authority isn’t present during the mediation, will they have the best idea of how the negotiations are unfolding if only relayed important second-hand.
Have a Strategy
Critically you should prepare a strategy for your mediation.
Just as you should know who is doing what in your team for the mediation, know that it is a negotiation and so you should therefore have an upper and lower level of what an acceptable outcome may be.
You don’t have to share your strategy with your mediator but at some point, you might decide it is useful to do so.
You may have to think about what concessions you might be willing to make in order to get a deal.
Concessions and offers can mean different things in different cases, it can of course be money but it can also be trading terms, an apology or information.
Although having considered the parameters under which you wish to negotiate is vital, understand that in a mediation you may be pushed just outside of these parameters.
In your mediation, settlement may come down to a question of judgement on your part – do you want the deal that’s on the table today? Are you willing to carry on to trial for £500 or to walk away with nothing when there are multiple thousands on offer?
If a claim does not settle at mediation, do not assume that this is the end for any agreed outcome.
Mediations frequently lead to settlement soon after, the parties having used the process as a way of speeding towards agreement even if they don’t get there that day.
So finally, do not make your strategy too ‘slash and burn’ by destroying relationships at the end of the mediation if you would like find a deal in the near future.
How Else to Prepare?
If you want more information, speak with any colleague who has had experience with mediation, approach mediators for advice and know that a mediation service provider, such as CEDR, is available to guide and support you and your team through the process and get organised to mediate effectively.