Mediation is a magical process which enables parties to resolve their disputes swiftly, cheaply and effectively. It is a way of avoiding lengthy and costly litigation and achieves a more satisfactory outcome for all - and it works even when all other attempts have failed.
The mediator appointed by the parties for the mediation will be in a position to contact each party prior to the mediation itself, and discuss any issues the parties wish to raise in preparation for the mediation. This will usually include:
Where the mediation is to take place
How long it is likely to last
Who will attend on behalf of each party
What documentation will be required by the mediator or by the parties
Care should be taken in the selection of a venue. Ideally it should be in 'neutral territory' so that neither party is likely to feel uncomfortable. Sometimes, however, such a venue is not feasible and the parties and the mediator may have to make do with what is available. Paul Randolph is very flexible about the choice of venue.
Ideally, there should be one room for each of the parties, large enough to comfortably hold the entire 'team' which each party wishes to bring. The parties may spend considerable periods of time in these rooms, so they need to be comfortable and have sufficient facilities available. The mediator will often use these rooms for the confidential private 'caucus' sessions, so the rooms need to be sufficiently distanced from one another so as to avoid fear of being overheard.
The venue needs to be available throughout the period envisage for the mediation. There is nothing more frustrating than parties almost reaching agreement at the end of a long day, and for the security guard to come in and ask everyone to leave as the building has to be closed!
The commencement and the duration of the mediation is usually catered for and set out in the pre-mediation agreement. It is important for both parties to be clear as to the duration of the mediation - it is similarly frustrating for the parties to be deep in negotiation and for one side suddenly to declare that they are obliged to leave (whether to catch a train, or a plane, or simply to fetch the children from school!).
It is important that neither side should be surprised at the mediation by the attendance of any particular person or party. The mediator will discuss who is to attend on behalf of each party, and this will enable him or her to deal as far as possible with any imbalance or perceived imbalances of representation. Thus if one side wishes to attend in person, whereas the other proposes to bring solicitor, counsel, experts, and witnesses, etc etc. the mediator can speak to both sides to explain and reassure where necessary.
Mediators do not require box-loads of lever arch files in preparation - even for the most complex of mediations. The parties and their legal advisers should ensure that the mediator is sent:-
A brief case summary This should not be in the form of a 'legal Statement of Case': it is not helpful to the mediator or the parties simply to regurgitate the pleadings or to make submissions of law. The case summary should rather focus upon the needs and interests of the parties, and their wishes, hopes and aspirations for the mediation. It is an opportunity to make 'emotional' rather than 'legal' submissions.
Relevant correspondence This should include letters showing the current state of negotiations between the parties and any open offers made or rejected
Relevant documents Only documents which the parties regard as vital for the mediator to peruse in order to properly understand the issues in the dispute should be prepared for and sent to the mediator. Background information is often better gleaned personally by the mediator from the parties in private sessions.
Preparing the clients
Legal advisers can serve a very useful purpose in controlling their clients' expectations. Those parties who enter into mediation with unrealistic expectations will not advance their case or progress their aims and aspirations to the full.