It is standard practice for mediators to telephone the parties’ representatives, and sometimes the parties themselves, before the day of the mediation. There is enormous value in beginning to build a relationship, in starting to talk about the case, the process and how people see the mediation developing.
When I start to look at papers, having been appointed as a mediator, I often notice that, other than an exchange of positions in correspondence, there has been little real dialogue between the lawyers about the dispute, about how it might be resolved, or about how the mediation might best be used. Much of the misunderstandings that develop could easily be dealt with in a short conversation but very often lawyers have never, in the whole history of the case, picked up the phone to each other.
Perhaps this is sometimes a conscious and deliberate policy, but the feeling I generally get is that there really is no clear reason why it is not done.
Preparing effectively for a mediation requires a certain basic level of cooperation and the period before the mediation date provides a natural opportunity to speak to one’s opposite number. This opportunity should be seized upon with both hands. The direct contact can be very useful in:
- Establishing a good working relationship.
- Identifying missing information, which might be valuable in the negotiations.
- Checking what the main issues are for each party. It is surprising how often one party makes assumptions about the other, which turn out to be quite wrong on the day.
- Discussing what might work in the mediation, for example which combinations of individuals may or may not work well together.
- Agreeing on any useful further pre-mediation steps.
The lawyers are sometimes even able to discuss what the shape of a settlement agreement might look like, without prejudging what the outcome will be. It is particularly useful if they can agree to draft some wording to have ready for use if the parties settle.
Pre-mediation contact of this kind will often enable lawyers to prepare with their clients more effectively, and with more confidence that they understand what they will be facing on the day. It’s always good to talk.