I’m often asked how parties can be successful at a mediation. My answer is always that there are two rules parties need to follow:
- Rule 1: prepare for a mediation and not trial, arbitration, adjudication or anything else.
- Rule 2: prepare for your specific mediation, and not just any mediation.
Now, although these two rules do sound rather obvious, it is worth analysing them in more detail because mediation is not like any other dispute resolution process. It requires parties and party representatives to showcase different skills and, of course, every mediation is different.
Rule 1 – prepare for mediation and not for trial or anything else
So, why is it important to follow rule 1 and prepare for mediation and not trial, arbitration or adjudication?
The primary reason is this: it is the norm for the mediator to be a facilitator and not a judge or decision maker, which means that the parties must persuade each other – and not the mediator – of their case.
And so it follows that parties shouldn’t prepare for mediation on the basis that they need to persuade a judge, arbitrator or adjudicator, someone who must follow certain precedents, only take interest in particular arguments and only grant certain relief. And, parties shouldn’t prepare to persuade the mediator, even if it appears from their CV that they’ve been involved in a similar case. Yes, the mediator’s knowledge will mean they can identify and understand the issues, and test the parties’ cases, but the mediator won’t give either party their view on what might be the answer.
So instead, each party should prepare to convince the other party of their case, a party who they are likely to already know quite well and a party who may (or may not) think completely differently to a judge, arbitrator or adjudicator, perhaps because their primary interest is something like maintaining confidentiality, repairing a relationship or solvency.
Another key reason why parties need to prepare for mediation is that, unlike court proceedings, the mediation will not be in public. Instead it will be confidential and without prejudice. That means parties can be open. And so it follows that parties may want to put what they have said in a pleading or letter to one side for the day, or offer or request something they would not expect in court, arbitration or adjudication, such as an acknowledgement or an apology.
Parties will also need to prepare differently for mediation because usually, they won’t have everything that they would have at trial and, what they do have, won’t be in the same paginated, indexed format. This may be because (as encouraged by the courts in Bradford v James and Oliver v Symons) the mediation is early on in the dispute (such as during a live project or at final account stage), or because of pragmatism (for example, see PGF II SA v OMFS Company 1 Ltd) or proportionality.
However, it follows from this that, when preparing for mediation, parties will need to consider how to resolve the issues with what they have got, which may be more limited than what they’d have in court or arranged differently to how documents would be presented to a judge.
It is also important to prepare differently for mediation because, whatever the value of the claim, the parties will be operating in a condensed time period, that being the time they have agreed for the mediation day.
And so it follows that parties will need to consider how they can resolve their case within this agreed timeframe, which may be a far shorter period of time than what the court or tribunal would have allowed for the trial of the matter.
Preparation should also differ because mediation is a voluntary process that does not have a fixed procedure for the day. And so it follows that parties shouldn’t arrive expecting to follow a defined timetable for the day and, because it is a voluntary process, they should remember that the other party can simply leave.
Preparing for mediation also differs because parties have the option to agree solutions at mediation that cannot be granted by a court, arbitrator or adjudicator. This point is demonstrated by Faidi v Elliot, a dispute between neighbours about the timber flooring to one flat, which was said to cause noise that would not be heard if there was underlay and a carpet installed instead. Here Jackson LJ said that a rug or (as he described it) a moderate degree of carpeting might have been a solution to the dispute in that it would have reduced noise penetrating into the neighbouring flat, but still enabled enjoyment of the timber floor. Jackson LJ emphasised that this was:
“precisely the sort of outcome which a skilled mediator could achieve, but which the court will not impose”.
And so it follows that when preparing, parties shouldn’t just look at what is requested in pleadings and letters or what the court would order in such circumstances. Instead, they should consider if there are any practical solutions to the dispute that could be offered or accepted in a deal.
Rule 2 – prepare for your specific mediation, and not just any mediation
So, why should parties follow rule 2 and prepare for their specific mediation, rather than just any mediation?
One reason is that in some cases, whatever their value, things crop up before the mediation day that need to be dealt with in advance. For example, it may become apparent in the days leading up to the mediation that a certain point needs to be researched or document found because, without this, the mediation is likely to stall. Other cases may require parties to request a pre-meeting with the mediator.
Another reason is that parties should think very carefully about who – in their specific case – should (or should not) attend the specific mediation day. Of course, parties must always bring someone with full authority to settle but, having analysed what the other party may want in terms of process and solution, parties should always ask themselves who else (if anyone) should attend. It may be clear, for example, that a party will want to talk in detail about something and so certain individuals must attend to do that.
Also, parties should always ask themselves what everyone really wants in this particular case. It will obviously vary. Some parties may want a solution that they’ve floated previously, some may want (perhaps as an add on) something that is not in the pleadings or letters, others may seek a gesture, such as a private apology, before negotiations can really begin.
As well as this, parties must always ask themselves, whatever the value of their case, how they can resolve their case in the specific timeframe they have agreed for the mediation day. If it is a long running and detailed dispute, a party may want (perhaps only for its own internal purposes) to try to simplify and organise the issues, by listing everything it wants and then ranking those things in order of importance. If the case is document heavy or bitty (like a final account case), a party may want to share a spreadsheet with the other party that puts all the items in value order or groups them by issue, and appends documents that support some sample items.
Also, parties should always consider (at least internally), what the wider issues in their specific case are, both for them and the other party. Such issues may include avoiding the case being spoken about on social media, ensuring customer satisfaction or preventing staff and business time being diverted onto a trial of the dispute. Parties should also always (again at least internally if they prefer) get to the bottom of what it may cost (in terms of legal costs and their own time) to go to trial and then ask themselves whether either party can pay the figures involved if they are ordered to do so.
Finally, as every mediation involves different individuals, thought needs to be given to the process which will best suit a mediation of that specific case. Meeting options on the mediation day include meetings with everyone, meetings of specific individuals (such as decisions makers, lawyers or experts) or no meetings (with each party just meeting with the mediator). Different types of meetings will suit different cases. If one type of meeting doesn’t work, another may then be tried. Parties should also consider if there are any tools, such as photos, videos or slides that may help persuade the other party, or if having the mediation at a certain venue (such as the site) would assist. And, if offers are made, parties should ask themselves how that offer should be presented to the particular decision maker on the other side. For example, it may be that one decision maker, or one lawyer, makes the offer and explains the reasons behind it to his opposite number.
And so, if you want to achieve success at mediation, you may want to consider following rule 1 and rule 2.
I should also conclude by referring to the ADR Handbook, which includes practical tips on preparing for mediations. The TCC Guide advises parties (at paragraph 7.1.1) to refer to this book and it was referred to and relied upon in the important unreasonable refusal to mediate cases, PGF II SA v OMFS Company 1 Ltd and Northrop v BAE.