Getting ready for mediation

Posted on October 20, 2017 by Jeremy Frost

When considering mediation, we suggest there are some questions to ask yourself before committing to the process.  We then look at the practicalities of preparation for a session.

Underlying driver

The first thing you should ask yourself is this: “Do I actually want to resolve this case?”

This may sound like a strange question, but you should be clear about whether your end game is an actual resolution or is there something more deeply rooted within the dispute. For example, your primary driver might be achieving what you believe to be “justice”.

With this in mind, the question essentially is: will you be happy with a negotiated resolution?

Economics

Secondly, there is a question of economics. Once you take into account the cost of going to court – including court fees, solicitors’ fees and potentially being ordered to pay the other party’s costs if you lose – going to court may not be the best use of your money.

Even if you win, the time that the court process will take has a cost associated to it – your time taken away from other matters and the impact on cash flow. To put it simply: can you afford to go to court?

Strengths and weaknesses of your case

Thirdly; ask yourself where your strengths and weaknesses lie. Be aware of what your weaknesses are and of what you want out of mediation.

Remember, these will be the same discussions that the other side will be having so also think what they may be telling their lawyers.

Flexibility versus result

Then there is the question of flexibility versus result. All mediation relies on flexibility and compromise and, although it is not a good idea to be inflexible about mediation, think about the red lines you may have. Are there areas that are non-negotiable, no matter what?

Preparing your document

Once you have decided to go with mediation, the mediator will have asked you to prepare a one or two-page document. Unlike a court case, you don’t need all your papers and, if you have a lawyer, it is likely that he or she will take a briefing note.

You don't need to waste time with a blow-by-blow account of who did what and when.  Mediation is not about attributing blame; it's about finding an agreement.

So, take your key documents, turn your phone off and have the key people there if possible and don't forget to keep your evening free in case the mediation carries on a little bit longer.