One of the least helpful assumptions about mediation is that it is ‘alternative’ to litigation. Mediation is a decision-making process which sits firmly in any litigation timeline and can take place before a claim is lodged with the court. Since the significant majority of claims issued are either dropped or settled before trial, or settled on the steps of the court, mediation offers a professionally-managed opportunity for finding a settlement. The process allows legal professionals to concentrate on the needs and interests of their client and add value to the professional relationship.
There are two significant areas of preparation. The first is on the facts and merits of the dispute. The second is on the mindset or psychology in preparation for good decision-making.
The balance of preparation between the two areas is particularly important to ensure the best use of time on the day and that whatever the outcome, the client will know that they have made an informed decision, supported by their legal advisers, even if that decision is not to settle.
Most people understand that reviewing the merits of the case and the options for settlement is a given. However, fewer recognise the value of time spent on preparing people for the opportunities that mediation offers, particularly that for certainty.
Checklist: before mediation day
There are some very valuable exercises that lawyers can do with their clients before the mediation day which will increase the value of the day.
- Drafting a summary for the mediator – not a position statement
- Rehearse the client in their opening presentation, and not the pleadings
- Pay attention to tone as much as content
- Consider an early concession that can be included in the opening remarks
- Coach the client in taking the lead and be prepared to fill in the gaps if they forget important points
- Grade and prioritise needs and ‘nice to haves’
- Identify a ‘settlement zone’, rather than a bottom line.
The mediation summary
The main purpose of the mediation summary (sometimes called a position statement) is to educate the mediator. However, there is a tendency for mediation summaries to rehearse the pleadings. When the summary is shared with opponents, they are less likely to pay attention to what they believe they have heard before. A more effective approach is to identify what you want to achieve and what you believe are the significant areas for discussion, and highlight any relevant outstanding questions.
Of course, the summary will include information from the pleadings where those exist, but the mediation summary also offers a unique opportunity to synthesise the arguments for the purpose of mediation. To that end, matters that have not been included before can be included in the summary for the purposes of the mediation.
Identifying a settlement zone
Mediation allows for anything (legal) to be included in the final agreement. If the parties are prepared to hear options (including non-monetary), they are more likely to identify elements of a deal which together they can agree to.
Where parties have decided what their bottom line is, it can take a very long time to see value in something else which may be worth more to have or cost less to give than a previously identified ‘bottom line’. Moving position is often seen as losing face and so it is important to allow for ‘wriggle room’.
The exploration of those non-monetary options is a demonstration of good faith. It is easier to consider options if you and your client have identified a wider band of ‘value’. That wider band of value, a zone of possible agreement, allows flexibility and makes it easier for people to change their mind if they hear something which they hadn’t thought of before. Changing your mind as a result of something you have learned is a sign of strength.
One way of identifying a zone of possible agreement (or settlement zone) is to identify the range of losing badly to winning well. It might then be adjusted to take account of the tangible and intangible benefits of an early settlement.
The combination of identifying needs and ‘nice to haves’, together with a settlement zone, allows people to better consider options which are generated throughout the day.
The time spent on this kind of preparation certainly increases the momentum during the mediation and reduces the risk of tiredness and overwhelmingness that can so easily be a feature of a long day with slow progress, simply because the preparation has not included preparing the people to make a positive contribution.
At some point, it is recommended that you share this information with the mediator in confidence. They will not share it with the other party. When you feel comfortable with the mediator’s style, then the more information you share with the mediator, the better they can do their job.