Guidance for those attending a mediation
Prior to the mediation
The key to a successful mediation is preparation. In advance of the mediation process participants need to prepare both themselves and the mediator.
In preparing yourself, and your team, it is important to consider your chances of “winning” and the cost of doing so. Fighting through the courts can raise the costs beyond the benefits likely to be received by either party so it is important to come to an understanding of what a successful conclusion to the process means to you.
You will need to prepare a Case Summary (also sometimes called a “Position Statement”) to assist the mediator in understanding the detail of your position. We would ask that the Case Summary does not exceed 5-10 pages in length and outlines the main issues in dispute. Where supporting documentation is referred to, please ensure a copy is attached to the Case Summary or is in a separate bundle.
Within the Case Summary it would be useful to include the following:-
- The history of any legal proceedings, and any prior offers or negotiations;
- A schedule setting out the legal costs incurred up to date, including the cost of Mediation;
- The full names of those attending the Mediation and their relationship to you.
Your Case Summary should be exchanged with the other party, at the same time as serving it on the Mediator, within the timetable set out in your mediation agreement.
If you wish to refer the Mediator to any confidential information you can submit this to the Mediator separately. It should be clearly marked “Confidential” so that the Mediator understands that it is not for disclosure.
Legal advisors may also consider preparing a draft agreement or Consent Order to bring to the Mediation. This will save time and also may assist the parties in focusing on the details that will be needed to be considered during negotiation. If there are any issues which require advance preparation, such as detailed calculations, schedules of assets or losses, or perhaps tax advice on different possible settlement structures then it is helpful to have thought about these before the day of the Mediation.
You can speak to the Mediator before the Mediation if you wish to seek any guidance or clarification on the Mediation process. Depending on the circumstances, your Mediator may telephone each party (or their legal advisors) before the mediation to clarify any issues.
Our mediation team have produced the following guides to help you and your legal team prepare for the process.