How to prepare for a mediation

The situation – you have a mediation coming up

Mediation is – and has been for some time – on the rise. The recent decision of the Court of Appeal in opening the road to compulsory mediation will only add pressure to what is already an established feature of litigation.

But how do you prepare for a mediation? For too many solicitors, it is like preparing for just another hearing before the court – bundles of documents, position papers setting out the legal position, requests for specified remedies and so on. But is this really the best way to go about it?

I come to mediation having represented parties in litigation as well as a mediator – and my own view is coloured as a lawyer working in the technology industry (which throws up some common issues in mediations).

Remember that each mediation is different – what follows are some ideas, they are not intended to be a fixed plan for each mediation, and each mediation may throw up specific problems that need specific situation-dependent responses.

 Pre-mediation

One of the first things is to find a suitable mediator. The market is heavily – over? – subscribed and there is plenty of choice. However, rather than taking the first name that comes back in your internet search, think about the basics of your dispute: if an outsider is coming to the dispute, what background would they absolutely need to understand so as to get on top of the case with minimum instruction from you? This raises the much debated question of whether you should go for a lawyer mediator or an industry specialist: I won’t go into that here, suffice to say that there are pro’s and con’s on both sides. If the case supports it, getting a mediation team including both a lawyer and an industry specialist can be a good idea, but remember that mediations are rarely supposed to descend into the gory technical detail, interesting as it may be from a purely professional point of view.

In my own area as a technology lawyer, getting a mediator who understands the industry and how it works is crucial. Too many outsiders frankly freak out when they see a technical case, perhaps understandably, and the mediation day risks running into the mud as the mediator battles to understand what the case is all about. Understanding what makes the industry tick is also crucial. If you have a software licensing dispute, you need a mediator who understands how licensing works and why it is important to the software supplier. A dyed-in-the-wool corporate lawyer is unlikely to appreciate this, for example, I mean – they might, with instruction from the parties, they might very well, but it will take extra effort.

Therefore, just jot down on a bit of paper the essential features of your dispute: licensing, technical defects, breach of warranty, whatever the issues may be, and then look more critically at the CV’s of mediators on your desk. Just ask yourself whether their experience would really prepare them for the issues they are going to have to deal with and whether they would need a lengthy instruction from you.

The other thing is: if a party suggests using a particular mediator, don’t immediately smell a rat and think that they are putting forward someone they think is favourable to their side. Questioning of the other party and of the mediator should disclose the situation. Too often, I have seen lawyers rejecting the other side’s proposed mediator(s) simply because of a fear of some sort of collusion. This adds to the time in setting up the mediation and can cause the parties to choose someone with the right experience.

What should the parties be doing?

Too many dispute resolution lawyers still see mediation as just another outing before the judge. As with court cases, bundles get out of control and lever arch files fly from side to side at a dizzying pace.

Clients would do well to look at their opponent and try to do some research – not just on the internet, but internally, to find out what they know about their opponent. I remember one mediation where it turned out late in the afternoon that the defendant supplier was just about to be awarded a substantial new contract from the claimant customer. They were both substantial businesses and it was truly a case of the right hand not knowing what the left was doing. A little internal research by the customer might have unearthed this valuable information: not necessarily a game-changer, but anything like this is of assistance in a negotiation.

Similarly, what do you know about the people on the other side? What is their attitude to risk (both personally and in their business dealings)? What are existing relationships – who on the other side still gets on well with whom on your side? What sort of people are on the other side – try to analyse each of them: are they analytical? Emotional? A mixture of both is the normal answer – but which element predominates?

Mediations rarely come down to some piece of evidence that destroys one side’s case. A mediation is normally about both sides coming to see the weaknesses in their own case such that agreeing a compromise looks like the better outcome. When you understand this simple point, putting together an impressive bundle of evidence takes second place to understanding the personalities and the business issues, not the legal technicalities.

The position paper

Mediations normally have some sort of process in which each party exchanges with the other its position paper. If you leave this to the lawyers, too often what comes out is a lengthy analysis of the legal issues, normally summarising the formal pleadings in the case and rising in a crescendo of logic until it demonstrates that the other side’s case is doomed to fail.

This is a shame, as the position paper can be so much more. Lawyers will normally put together a bundle of documents for the mediation supporting their case: a copy of the 200-page contract, the extensive email correspondence, the formal solicitors’ letters making claim and counterclaim. This will normally fill at least one lever-arch file, normally spilling over into further bundles. Lawyers being lawyers, they may have supplementary bundles that they want to exchange as well. One question is this – do you really need the complete contract – you have a full copy available on the day if you need to look at Schedule 17. Normally, the parties will be focused on certain key provisions.

When representing a party, consider agreeing with your opponent an agreed list of documents. It is wearisome for all concerned to have five lever-arch bundles containing two copies of the same lengthy contract and all the correspondence. If the documents are long (normally the contract is long), consider agreeing a selection of the provisions essential for the issues in dispute on the mediation day.

The lead individual on the other side (the CEO or whoever) is unlikely to plough through several lever-arch files of evidence, but they are likely to read the position paper in earnest. it is crucial to understand this.

Even if the other side’s senior representatives don’t read all the supporting documentation, the position paper is the one place where you are guaranteed an attentive audience, so just re-hashing the facts and law is a wasted opportunity. The lawyers have already done that and provided their advice to their client. A position paper is normally done with knowledge of the other side’s case (from the formal pleadings, from the witness statements, experts’ reports etc). It is a good chance to set out not only where you think you are strong but – more importantly – where you think the other side is weak. You don’t have to rub their nose in it, politeness is key, but you do want to make the other side think twice. If you are dealing with a senior person, the CEO for example, all they may have seen from their subalterns are highly summarised and mostly favourable distillations of their own case. The position paper is a chance to start moving that view on to a more balanced view of the total situation (legal and business).

Finally – remember that a picture paints a thousand words. Rather than include that list of software errors coming to 385 pages, why not put in a one-page chart showing numbers of software errors broken down by seriousness – just one page, it’s probably all you will have time to look at on a one-day mediation anyway.

Before the big day

A mediation should not just be about collating evidence and presenting a refined legally argued position paper – it is about the personalities, as I have tried to say. If you have a complex case, there is nothing wrong in a party providing the mediator with a confidential briefing. This might cover any number of different issues: you might want to tell the mediator about the personalities and what you fear if e.g. one of the other side is emotional or if you suspect that one of them has a personal difficulty. Perhaps you fear that one of them is going to lose their job as a result of the dispute? It is highly relevant to how the mediation will pan out on the day.

It may be that the case has some technical aspect and you want to provide the mediator with a confidential briefing on the underlying technicalities, perhaps with a brief glossary of terms, the “buzz words” that the parties are going to be using in their discussions. This can be very helpful in giving a mediator confidence in going into a room with industry experts and talking with them on equal terms, gaining their confidence from the start.

Don’t forget as a party that talking with the mediator before the mediation day can be a great help (to everyone). It can mean the mediator can get to grips with the issues in the case without wasting time on the mediation day. It can mean that you get across to the mediator what you really want to achieve coming out of the mediation. Many – most? – mediations take the form of shuttle diplomacy, so you are relying on the mediator to act as advocate for each party. The mediator won’t go from room to room simply saying, “the other side’s offer is £1 million”, you want them to be able to sell it, so getting the mediator on side from the outset is a great advantage. This is not “nobbling” the mediator – it is providing the mediator with the information and background they need to do their job properly.

The opening meeting

A mediation normally – not inevitably – starts with a plenary session, with everyone around one table, with opening statements delivered by one or sometimes more people on each side.

Delivering a speech is not everyone’s cup of tea and many clients balk at the idea of delivering the opening statement. They shouldn’t: getting your lawyer to deliver it can look like hiding behind legalities and can derail the mediation for a time while those legalities are examined. The legalities are important of course, but in a mediation they are the background, the blank canvas on which the dispute is painted, not the be all end all of the dispute.

Too many lawyers, when asked to deliver the opening statement, resort to reading out the position paper exchanged before the mediation, or some summary of it. It’s not terribly helpful, to be honest. Nearly always an opening statement by e.g. a client’s CEO outlining the effects that the other side’s actions have had on them and their business and where they think they other side has gone wrong can get far more attention and can help to focus the mediation on what is at stake in the mediation and what it will take to resolve the dispute.

Don’t forget that the opening session is a good chance to settle nerves before the day commences. Yes, it is a chance to shake hands and take your seat around the table, but also a chance to open conversation, build bridges, relax yourself and your opponent, prepare for the big day ahead. As a mediator, I won’t necessarily shut people up when they do this, and it is useful to explore with each party before the mediation whether they want to do this. It is not inevitable – sometimes one or other party can claim to be too emotional and say they are too reluctant to engage in such a meeting. However, from a party’s point of view, it can be a useful exercise in opening channels of communication and clients should seek to do this if possible.

Doing the unthinkable: ask a question

Too many opening meetings consist of formal statements read out by the parties’ respective legal teams and then the parties get up and go to their separate rooms. Maybe that is all that is possible, but an opening meeting can be so much more.

It doesn’t have to be a formal set piece, you are normally allowed to ask questions, engage in dialogue. The mediator should explore this with the parties prior to the opening session. This is where preparation can come in handy. I described about how mediations are more about convincing the other side to regard settlement as preferable to fighting and that means focusing on the individuals present on the day, understanding their attributes, what makes them tick, what they fear. You will have a copy of the opening statements, so then is a time to think about what weaknesses it discloses. That is a chance to consider what questions you can ask that serve to highlight those weaknesses – not in a brutal cross-examining way, not savaging them like counsel might cross-examine them in the witness box, not in a way that humiliates your opponent and leaves them unable to offer an answer, but gently, showing them that their case has maybe – just maybe – some problems that need to be discussed.

Conclusion

Mediations throw up all sorts of issues at all stages and in no case is there a “one size fits all” approach to successful mediation. Another mediator, or another lawyer, could look at the above and either add to it or want to discuss any of the above points. So use the above points like a recipe in the kitchen – perhaps you like more seasoning or less, it’s all a question of taste, your own and your guests’.