One of the most important things is to prepare properly, however bear in mind you are not preparing for a trial. Preparing effectively for a mediation is completely different. It involves a great deal of thought and honesty, a suspension of normal hostilities and a different mind-set.
Documents
Usually parties agree the contents of a bundle to go to the mediator. Your mediator only needs to see the key documents. A summary of the background to the dispute and of the factual and legal points in issue can be helpful but do not just repeat the statements of case. There is also no need to send years of email correspondence!
Remember you can send the mediator a confidential statement before the mediation and this is my preferred document rather than a formal position statement. This would not be revealed to the other side but will give the mediator an indication of the issues that are really important to you.
Make sure you have up to date figures for any monetary claim. Also, whilst it is not a full-blown examination of evidence, is there anything you can show the other side that will support your claim eg invoices for bills paid.
The most useful information for the mediator is any previous correspondence detailing attempts to settle.
Know yourself
You need to examine carefully the strengths and weaknesses of your own case, legally and evidentially. It is extremely unlikely that you have a watertight case.
Be honest with yourself. Think carefully about what you want to achieve. Not what you are entitled to, but what you need and want to achieve. What is the real value to you? You need to know your ‘bottom line’ but be prepared to be lateral. Think about your worst and best case scenarios. Think about flexible solutions eg you may accept that you have to vacate a property but may need a bit longer. Can you negotiate a longer eviction date in return for, maybe, payment of a higher sum.
Costs
Know how much you have spent so far and have a realistic estimate of what you will spend if you go to trial. Think about how you will pay your costs and the other side’s if you lose. Can you afford to take that risk? Work out your net gain even if you win – is it really worth it? Where is the break-even point?
Think carefully about the consequences of any Part 36 offers that have been made. Work out the figures. Just missing an amount can have catastrophic costs consequences.
Know the other party
This is in the sense of walking in their shoes and thinking about what might be really important to them. What is it they need to achieve? What is driving them? How can you accommodate what they may need? Maybe it is something simple for you but very important to them.
Think about how they perceive your actions. Very often two sides will look at the same facts and see different things. Be prepared to talk openly about how you perceive their actions and the effect it has had on you and acknowledge the effect of your actions on them. Try to show respect and empathy.
Think about the process
Who will be there? Lawyers, experts, who from client, moral support.
Who has authority to settle? Will you have to call someone? If so, make sure they will be available.
Are there any timing issues – flights to catch, time zones. Do you have any particularly vulnerable people? Are there any personalities involved that need to ‘handled’?
Would it be helpful for the parties to meet together with the mediator without lawyers or for the lawyers to talk to each other?
Do you feel that the other side do not understand your case? Would it be helpful if you could explain things to them directly without having the message diluted by advisers?
Where will you do the mediation? Do you need a site visit? These are particularly useful for boundary and other neighbour disputes and the mediation can often be done at the premises so practical options can be looked at on the day.
Let go
Mediations can be emotional arenas and provide the chance to ‘get it off your chest’ but then you should let it go. It is only cathartic if you allow it to be.
There is also a need to let go of the litigation. Accept you will not get to know the ‘answer’. There will be no ‘winner’. No vindication, just, an acceptable solution.
Attitude
The attitude of the parties and their advisers is key. Blame, aggression, sulks and long speeches are not helpful. Think of a positive way to say what you want to say. Also, don’t bury your head in the sand. This could be your opportunity to get out of a difficult situation before costs rise inextricably.
Settlement structure
Consider in advance how you will document any settlement agreement. Do you need a court order? Is it just payment of money or is it more complicated? Will you need to transfer land or grants rights etc? Do you want a confidentiality clause? So far as possible do any drafting in advance.
Flexibility/Trust
Mediation is a flexible process. There are no rules as to how it should work. Trust the mediator – be honest. If the mediator knows what both sides really want, then often she can see an overlap that the parties do not think is possible.
Also, be prepared to be flexible with the process and possible solutions. Think outside of the box. If a mediator suggests something eg a meeting of particular people, there is normally a good reason. Mediators have done this before and may see a way forward that you can’t.
Above all – trust the process. Although at times of the day it can seem bleak, remember most of them are successful.
Jacqui Joyce is a full-time mediator with The Property Mediators who specialise in mediating property disputes
