Tips for preparing for mediation

Good preparation before mediation by attorneys and parties can increase the chances that the parties will resolve their dispute in mediation. What should such a preparation include?

Such preparation may include:

Decide if the other party needs to provide voluntary disclosure of certain categories of documents or evidence before mediation;

Decide if more evidence will be needed before mediation. For example, in a construction dispute, have the Quantity Inspectors prepared a joint report?

Carry out an adequate commercial and technical analysis of the claim, and also an analysis from the Respondent's perspective;

Verify the availability of those attending the Mediation;

Considering whether an attorney should attend mediation;

Considering whether an expert, such as a surveyor or accountant, should attend mediation or be available by phone if questions arise;

Verify that the Respondent or the Respondent's representative or the insurance company has sufficient authority to resolve the matter;

Consider whether your client's spouse or partner should also attend mediation. Remember, some clients will not make the decision to settle a claim on their own, but will discuss it with the spouse or partner. If the spouse or partner is not present at the mediation, then he or she will not have seen how the mediation is progressing and why there may have been movement;

Considering the mediation agreement / mediation agreement;

Drafting of a statement of mediation position. This should be marked "For mediation purposes only. Non-judgmental and confidential." When writing this, keep in mind who the position paper is being written for. Is the actual hearing the other side / insurer rather than the mediator or the other side's attorney / lawyer? Remember that a position paper is not the same as the Court's arguments or skeleton argument;

Remember to inform the mediator about the offers that have already been made. Both sides will already realize this, so perhaps they will include them in the position statement;

Decide whether a document should be written for the mediator's eyes only;

Considering what should be included within a mediation package. Try to agree on its content, but do not argue with the other party about the content, since anyone can send what they want to the mediator;

Ensure that documents are delivered to the mediator and, if necessary, to the other party, on time;

Preparation of details of costs to date and expected costs for the trial. This process can assist in case analysis. While some mediations are resolved with costs to be assessed by the Court if not agreed, why not try using mediation to agree on costs as well?

Discuss the mediation process with the client. In particular, it is important to discuss whether the client wants a joint opening meeting where both parties (along with their attorneys) meet with the mediator, or whether the client would prefer to avoid a joint opening meeting and, instead, together with their attorney, meet with the mediator.
Courts have been increasingly willing to be creative in awarding costs against parties that unreasonably refuse to participate in mediation or other forms of alternative dispute resolution. However, don't agree to mediate to be seen simply as a mediator and therefore hopefully reduce the chances of an adverse cost award. More than 80% of cases are resolved in mediation. Remember, your opponent's case may be stronger than you think. Consequently, it may be preferable to find out in the mediation room, rather than in the court room.