Ending the mediation
Most mediations end in agreement between the parties. Where that is the case, it is usually advisable to record those terms in an agreement, for signature at the time.
If terms of agreement are not reached on the day, there are still other possibilities. Our experience has been that terms can often be agreed in the days or weeks following the actual mediation. You may consider:
- Re-scheduling a further half-day or day
- Leaving the mediation agreement in place, so that further discussions can take place under its confidential and "without prejudice" terms
- Where appropriate, Ray will maintain telephone contact to see whether further progress can be made.
On the day
In a typical commercial case, the parties and their advisers meet at an agreed location for the mediation, which often lasts only a day.
The mediator will first establish that the representatives of the parties have authority to settle if terms can be reached.
After the initial briefing, a short statement is often made by each party of the principal issues, normally in an open / joint session. Then the mediator holds private meetings with the parties in separate private sessions.
This privacy enables the mediator to identify and understand the respective interests to be satisfied for a successful resolution.
The mediator works in an informal environment, exploring the dispute impartially, taking into account the parties' objectives, and suggests ways in which the gaps can be bridged.
A mediator does not dictate settlement terms and cannot disclose to either party “unauthorised” information. They can however explore the true feelings of the parties involved and identify common ground.
We appreciate that these situations can be challenging, and that some parties may arrive at the process with an axe to grind. A skilled mediator will provide conditions where anger and antagonism are effectively disarmed, and will clear a path for constructive negotiation.
The mediation remains a voluntary process in which the parties remain in control.
Pre-mediation discussions
We try to ensure as few surprises as possible in the mediation. Wherever possible, Ray will telephone the parties/their lawyers before the mediation. The purpose of this is:
- To introduce himself
- To ensure that all arrangements are in place for the mediation
- To discuss how you wish to deal with any joint meeting at the start of the mediation
- To answer any questions from parties/lawyers
- To ask any questions he has arising from the mediation papers.
These discussions will be on the same confidential terms as the mediation itself.
Preparing for Mediation
Effective preparation for a mediation can significantly improve the likelihood of reaching agreement, and even the terms of any settlement. Some points to bear in mind are:
- Who needs to be there?Each party needs to be represented by a decision maker, someone with authority to do a deal. If that is genuinely not possible, please contact us to discuss the situation as soon a possible. In addition, it is customary for each party's legal advisers to attend. As a general rule, however, try to keep the team as "lean" as you can.
- Know your case. Mediation provides a unique opportunity for directly influencing the other party's decision-makers and advisers. Knowing your case well, and being able to articulate it clearly, will enhance the use you can make of this opportunity.
- Consider both the legal and the commercial arguments. Mediation tends to involve a mixture of legal and commercial (and sometimes personal) issues. It is worth thinking these through in advance.
- Consider your alternatives to settlement. You need to be able to assess any settlement proposals in the light of these.
- Attend with knowledge of your legal and other costs to date, and an accurate forecast of future costs.
- Consider who it is on the other side(s) you wish to influence, and what is likely to influence them.
- Is there anyone who will not be present at the mediation whose opinions or decisions are likely to impact on a settlement? If so, should they be asked to attend?
