You think you have prepared well for the mediation – think again. Jacqui Joyce looks at what is actually helpful.
The usual scenario
Provide the mediator with all the documents you have, including every e-mail and file note setting out every detail. Include an in-depth analysis of the strengths of your legal position and all the back up evidence. Ignore your weak points and the other side’s good points. At the opening session bombard the other side with your indisputable proof that you will grind them to dust in court and get everything you want, and truly deserve. Tell them you are absolutely in the right, morally and legally and can prove it! Tell them they might as well agree to give you everything you want now and if they won’t then you might as well all go home.
All of that is easy. It’s what you’ve been doing for months in the litigation. But preparing effectively for a mediation is different. It involves a great deal of thought and honesty, a suspension of normal hostilities and a different mind-set. And it needs to be done in advance.
A mediator does not need to see all the documents relating to a dispute. Only the key documents, along with a summary of the background to the dispute and of the points in issue both factually and legally are relevant. The most useful letters are those containing offers to settle. You can also send the mediator a confidential statement, which could contain details of the points mentioned below. 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 and will save time on the day.
You need to examine carefully the strengths and weaknesses of your own case, both legally and evidentially. It is extremely unlikely that you have a watertight case. And, even if you do, that is not what mediation is about.
Be honest with yourself. Think very carefully about what it is that you want to achieve. Not what you are entitled to, but what you need and want to happen. What is the real value to you?
You need to know your ‘bottom line’ but be prepared to think laterally. Think about your worst and best case scenarios and what it is that you really need to avoid/achieve. For example, you may accept that you have to vacate a retail property but it would really help your cash flow if you could trade over Christmas. At a mediation you can negotiate a longer eviction date in return for, maybe, payment of a slightly higher sum.
Know how much you have spent so far and have a realistic estimate of what you will spend if you go to trial. It is always more than you think, no matter how hard you try to factor in the unexpected. Think about how you will pay your costs and the other side’s costs if you lose. Can you really afford to take that risk? Work out your net gain even if you win. After you have paid your unrecoverable costs and factored in your time – is it really worth it? Where is the break-even point?
Think very carefully about the consequences of any Part 36 offers that have been made. Work out the figures. A near miss can have catastrophic costs consequences.
Try to know the other party
This is not in the sense of ‘know your enemy’ but 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 and 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 your effect on them.
Think about the process
It is your day and, therefore, you need to think about how you want it to run. Are there any personalities involved that need to ‘handled’? Would it be helpful for the parties to meet together with the mediator without lawyers? Would it be better for the lawyers to talk to each other? Do you feel that the other side do just not understand your case – would it be helpful if you could explain things to them directly without having the message diluted by advisers? All things are possible. Be honest with your mediator about what you want to achieve and usually it can be done.
Mediations can be emotional arenas, particularly when small businesses and individuals are involved. You have 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. You have to accept you will not get to know the ‘answer’. There will be no ‘winner’. No vindication, just, an acceptable solution.
The attitude of the parties and their advisers is key. Blame, aggression, sulks and long speeches are not helpful. Try to think of a positive way to say what you want to say. Above all don’t bury your head in the sand. This could be your opportunity to get out of a difficult situation before costs rise inextricably.
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? Think in advance as to how you will deal with this and also consider issues such as confidentiality clauses. If possible do some drafting in advance.
Make the most of your mediator
Quite often parties treat the mediator as an extension of the other side. They try to convince the mediator of the strength of their case and expect the mediator to be their mouth piece in convincing the other side of this. A better use of the mediator would be to trust them – be honest. I once had a party who told me early on in a mediation that they had been advised they would lose at trial. They were then able to focus, with me, on what it was they really needed to achieve out of the day. I was able to marry this with what were the other side’s main drivers (quite different) and we were able to achieve all that they both wanted. All this was achieved well within the eight hours. Honesty and openness with the mediator really can be the best policy.
Jacqui Joyce (A version of this article previously appeared in the Estates Gazette).