Mediation #2: How do I get the best out of a mediation?

About the Author

Bill Lister is a partner and IP Solicitor at Appleyard Lees IP LLP. Bill has a wide range of experience advising UK, US, European and global clients, with a substantial reputation spanning branding issues, registered and unregistered trade marks, copyright, design, patents and trade secrets. Bill advises a number of global household names, in conjunction with public and private companies, and public sector organisations. 

In my first article I talked about why mediation as a form of dispute resolution was worth considering and how it could be used strategically in litigation. In this article I am going to talk about how it works and give some pointers as to how parties can get the best out of a mediation.

 

Where to start

The first step is the appointment of the mediator. Typically, a mediator might be selected from the panel of one of the mediation providers, or such as CEDR-Solve or In Place of Strife (there are many others).  The mediation provider will be happy to help in this.

The UK Intellectual Property Office can also offer mediation, albeit the take up for their service has to date been very limited.

The next step is to agree a date.  It is important that each party takes with it to the mediation those empowered to make the final decision to settle – it is important that those who have the power are present at the mediation (rather than on the end of a phone and can hear the arguments and discussions.  If settlement is reached, they will need to sign off on the final written document.

 

In person or by remote platform?

Although most mediations are held in person, some mediation providers will offer a facility to hold them remotely.  However, most mediators are of the view that in-person mediations are more likely to result in a settlement given the parties are in the same room and can talk to each other face to face and perhaps even form an empathy with each other.

 

Are lawyers needed?

Lawyers in a mediation are not necessarily needed but advisable regarding any issues of law which need to be discussed and drawing up any resulting agreement.  The lawyer will also act as a buffer or filter if needed between the parties.

 

Preparation for the mediation

The mediator may well suggest to the parties in advance of the mediation that they draft and exchange Position Statements shortly and succinctly setting out their view on what the dispute is really about. This document is not a court pleading and does not have to follow any particular format – it is merely intended to tell the other side, and the mediator, what that party considers to be the essentials of its case. If proceedings have been issued, it should not simply repeat what is in the Statements of Case – these will no doubt have been read by the parties and have been made available to the mediator.  However, it should set out what that party considers to be really important.  It is likely to be the first document both the mediator and the other side read in preparation for the mediation.

There is no need for huge disclosure, or any disclosure, of documents, except those a party needs to rely on to make its case.  In the face of substantial disclosure, the mediator is unlikely to read it but invite the disclosing party to refer the mediator during the mediation to such documents as they consider to be useful.

The mediator is likely to ask the parties (or their lawyers) to come to the mediation with details of costs incurred in the dispute to date and projected costs to the end in the event that settlement cannot be reached.  This is important as it helps the mediator to discus with the parties the value of settlement against the risk and cost of continuing.

The venue for the mediation (usually it is convenient to use the offices of one of the legal advisors to the parties) needs a room for both parties to get round a table and two (non-adjoining) break-out rooms.

Once a date of the mediation has been agreed, the mediation can take any form the parties wish, although they will normally follow the advice and experience of the mediator on this.

 

On the day

The mediation itself can be extremely informal and is usually held in shirtsleeves.  Ties and jackets tend to get discarded fairly early on in the proceedings.  At one mediation where I was acting for a party, our mediator was a former High Court Judge who held a meeting with his shoes off and feet on the table!

Mediations often begin with an opening meeting between all the parties when the parties introduce themselves to each other and usually put their case to the other side.  Lawyers are usually more experienced and comfortable at public speaking and parties may find it easier for their lawyer to make this initial statement, although there is no bar to the party making their own statement if they so wish.

What is important at this stage is that each party listens to the other without interrupting.  This is the stage when the parties begin to build up that trust which is essential to a settlement being reached.  This may in many cases the be the first time the parties have either met or had this opportunity to explain their position in person.

However, there are situations where the parties cannot for good reason be in the same room as each other.  This is not a bar to such a joint meeting taking place as in such cases the lawyer can stand in for them.

Although further joint meetings may be held, the mediator will then suggest to the parties that they retire to their break-out rooms so that the mediator can then have confidential one-to-one sessions with them to further explore where any common interest between the parties in the case may lie.  How the mediator does this is a matter for them and may include shuttle diplomacy, reality checks, and an exploration of whether there is a resolution to the dispute with which, although neither party may be delighted, both parties can at least live with to buy off the risks of doing worse at court, the inevitable irrecoverable costs and the stress and distraction from their business caused by the litigation.

 

Summary

Here are some brief tips –

  1. The Nineteenth Century Prussian Field Marshall Helmuth von Moltke said that no strategy survives the first encounter with the enemy. There is some truth in this.  Therefore – don’t overprepare!  This is not only a waste of time but will constrain you on the day.

 

  1. Don’t confuse the Position Statement with a court Statement of Case. The Position Statement is there only to inform the other side and the mediator of the points in the dispute which you really consider are important to your position and the strength of your case and the weakness of the other side’s case.  It should rarely be more than four pages long, if that.

 

  1. Don’t produce voluminous documentation – only produce the basic documents you need to rely on to demonstrate your position. If you do produce huge amounts of documentation, the chances are the mediator will not read them and you may inadvertently disclose to the other side a document you would rather not do so at this stage.

 

  1. Keep control of the process but use the expertise and experience of the mediator.

 

  1. Don’t be afraid of “eye-balling” the other side at the joint sessions – they are human.

 

  1. Remember, whatever is said in the mediation or to the mediator is both confidential and privileged – don’t be afraid of opening up to the mediator to allow them to help resolve them dispute.

 

  1. Bare in mid the costs already incurred and the cost of going to trial and the risks of trial – a slam-dunk case is only about 70%, that’s a 30% chance of losing!

 

  1. Finally, in negotiating in the mediation, the result may well be one that neither side loves, but it may well be good enough that it is one that both sides can at least live with to move on. To achieve this, you will have to consider making concessions.

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