Preparing for Mediation as a Solicitor: Controlling the Controllables

Following a successful mediation last Tuesday (a Settlement Agreement was signed by around 7pm), I reflected generally on what the controllables are that one can control, or at least try to control, as a mediation advocate and as the solicitor representing one of the parties.

If one is fortunate at mediation, one will have an intelligent and reasonable client, and the other side will also receive solid and sensible advice and act reasonably. I have had the benefit of both on many occasions. However, those things can not always be guaranteed. I would suggest that sensible steps for a mediation advocate to have taken or considered taking ahead of a mediation are:

1. To have discussed realistic settlement parameters with your client ahead of the mediation. This usually involves a cold, hard assessment of the merits of the client’s case and the difficulties they face, and also an understanding of what the other side’s interests and position may be;
2. To have managed your client’s expectations as to the difficulties and reality tests they may face at the mediation (both from the other party and perhaps from the mediator). A client who is faced unexpectedly with people putting them to the test and disagreeing solidly with them face-to-face may well feel unprotected if they have not been prepared for it, and have not agreed in advance with their instructing solicitor/advocate how their legal team will respond to that happening on the day;
3. To ensure that the other party to the mediation has its own decision-makers at the mediation and that they have unlimited authority to settle, or at the very least authority to settle at a level you and your client think is realistic (the unlimited authority point can sometimes be tricky when dealing with insurers but it is essential to have confidence that a deal can in principle be done at a realistic level). This also helps set expectations with the other party ahead of a mediation;
4. Choose a good mediator (and not only a mediator who is generally good, but one who you feel may suit the parties/the nature of the particular dispute). Part of this is knowing your client, getting a feel for the other party and their legal representatives, and the nature of the case. It is an art and not a science – some disputes may require a light touch, others may be ones where you consider the parties would benefit from robust “reality testing”;
5. Get your Position Statement right: if there are glaring weaknesses in the other side’s case, or particularly strong points in your client’s own case, get this across, but also make clear where the common ground and mutual interest might be. Do not impugn the intentions of the other party – both parties will want some goodwill from the other if the mediation is to be a success;
6. Independently from the Position Statement, try to have built up some sort of relationship with the other party and their legal team ahead of the mediation, and to have asked questions which are genuinely aimed at understanding their case/their position. The more you understand about both of those going into a mediation, the better you will be able to advise your client at the mediation. On a related note, advise your client to (where possible, and whether openly or without prejudice) answer questions about their own position that are asked in good faith by the other party.
7. Give some thought as to what a settlement may look like, and ideally have drafted at least the bones of a Settlement Agreement ahead of the mediation. Both you and your client need to have an understanding of all of the issues that need to be tied up in a settlement ahead of trying to tie them up. Issues that need to be resolved in a Settlement Agreement sometimes arise at mediation that could not have been foreseen, but this will happen less often/be less problematic if the structure of a settlement has been thoroughly thought through and discussed with your client.

These tips absolutely will not solve all problems at a mediation. Mediations are fluid and there are often many moving parts at them that simply can’t be controlled and require consideration and fats movement on the day. Being able to handle those is another part of a good mediation advocate’s skillset. Controlling what you can ahead of the mediation, though, and being well-prepared, at least means you are starting from as good a point as you can, and should enable the mediation to be spent as productively as possible.

Liam Owen is both a mediation advocate and a qualified mediator, and can be reached at lowen@georgegreen.co.uk or on 01384 340551.