How to Prepare for Mediation: 11 Things to Do Before the Day

Preparing for mediation is not the same thing as preparing for trial.

I have seen parties arrive at mediation with immaculate bundles, detailed chronologies and lawyers who know every document in the case — but without having answered the one question which actually matters that day:

“What would a sensible settlement look like?”

Preparing for mediation is not the same thing as preparing for trial.

For trial, the task is ultimately to persuade somebody else — the judge — that your case should succeed.

At mediation there is no judge to persuade.

The mediator isn’t going to decide who wins.

The task is therefore different. You need to understand the case, the risk, the client, the other side and the available solutions well enough to negotiate intelligently when the opportunity arises.

Conversely, preparation should not mean deciding in advance how far you are prepared to move and then spending eight hours slowly getting there.

One of the advantages of mediation is that information, perceptions of risk and possible solutions can change during the day.

So what should parties and their lawyers actually do before a mediation?

In this guide

• 1. Work out what the dispute is really about
• 2. Work out your BATNA — realistically
• 3. Prepare the client, not just the case
• 4. Make sure the right people are attending
• 5. Understand the other side’s best case
• 6. Know the numbers
• 7. Don’t turn the position statement into a skeleton argument
• 8. Tell the mediator what the mediator needs to know
• 9. Think beyond money
• 10. Prepare for the final two hours
• 11. Choose your mediator carefully

1. Work out what the dispute is really about

Start with something which sounds obvious but often isn’t.

What is actually preventing this dispute from settling?

The answer may be contained in the pleadings.

But it may not be.

A claim may formally concern an unpaid invoice, a boundary, a shareholding, an inheritance or allegedly defective work.

The real dispute may involve something quite different: loss of trust, a feeling that somebody has behaved badly, fear about what happens next, a breakdown in a business relationship, a desire for recognition or simply anger about how the dispute has been handled.

This doesn’t mean the legal issues are unimportant.

They plainly matter because they determine the parties’ alternatives if mediation fails.

But understanding the legal dispute and understanding the obstacle to settlement are not necessarily the same exercise.

A good mediator will usually be interested in both.

2. Work out your BATNA — realistically

Mediators like acronyms, and BATNA — the Best Alternative to a Negotiated Agreement — is one of the more useful ones.

In litigation the alternative is usually some version of continuing towards trial.

But “we think we’ll win” isn’t really an analysis of the alternative.

What are the actual prospects?

What is likely to be recovered if the case succeeds?

What happens on costs?

How much more will the litigation cost between now and judgment?

How much of those costs will actually be recoverable?

How long will it take?

Is there an enforcement risk?

How much management time will be consumed?

What is the effect on a continuing commercial or personal relationship?

And what happens if the judge simply doesn’t accept the evidence?

The same exercise should be done with the worst realistic alternative.

The point isn’t to frighten anybody into settlement.

It is to compare an actual settlement proposal with the realistic alternatives rather than with an imagined perfect victory.

3. Prepare the client, not just the case

Lawyers naturally concentrate on the evidence, documents and legal issues.

But somebody should also explain the mediation process to the client.

A mediation can feel strange to somebody encountering it for the first time.

There may be long periods during which apparently nothing is happening.

The mediator may ask uncomfortable questions about weaknesses in the case.

The other side may start with an offer which appears ridiculous.

The mediator may disappear into another room for an hour.

Progress may be slow.

None of that necessarily means the mediation is failing.

Clients should also understand that exploring compromise does not mean that their lawyer has suddenly lost confidence in the case.

A party can have a perfectly good case and still rationally decide that a certain outcome today is preferable to the risk, cost and delay of trying to obtain a better outcome at trial.

That conversation is much easier to have before the mediation than for the first time at 5.30 pm.

4. Make sure the right people are attending

Who can actually make the decision?

This matters particularly with companies, insurers, partnerships and other organisations where the person attending may have limited authority.

There is little point spending seven hours constructing a settlement which everyone in the mediation considers sensible only to discover that somebody who isn’t there needs to approve it.

That doesn’t necessarily mean every conceivable decision-maker has to sit in the mediation all day.

But the authority structure should be understood beforehand.

If approval above a particular level may be required, work out how that approval will be obtained and make sure the relevant person is actually available.

The same applies to anybody whose involvement may be essential to implementing a settlement.

5. Understand the other side’s best case

This is one of the most useful preparation exercises.

Write down the other side’s three best points.

Not their three most irritating arguments.

Not the three points you think are obviously wrong.

Their best points.

What evidence might a judge accept?

Which of your witnesses might be vulnerable in cross-examination?

Which document causes you the greatest difficulty?

What is the strongest legal argument against you?

If you cannot explain why an apparently rational opponent believes that it might win, you probably haven’t fully analysed the settlement risk.

This doesn’t require you to agree with the other side.

It requires you to understand the case which you may otherwise have to defeat at trial.

6. Know the numbers

This sounds mundane.

It is also essential.

Before the mediation, somebody should have an accurate grasp of the damages or other sums claimed, interest, payments already made, costs incurred, estimated future costs and the consequences of relevant offers.

Where Part 36 is involved, understand the potential consequences.

If settlement figures are going to be discussed inclusive or exclusive of costs, everybody should know what that means in practice.

In more complicated commercial disputes, consider preparing a simple spreadsheet showing different settlement scenarios.

Nothing destroys negotiating momentum quite like discovering late in the afternoon that nobody can work out what the proposed figure actually produces once interest, costs or previous payments are taken into account.

7. Don’t turn the position statement into a skeleton argument

The mediator needs to understand the case.

That does not necessarily mean the mediator needs forty pages explaining every authority which might be cited at trial.

A useful mediation position statement normally explains:

• what the dispute is about;
• the important factual and legal issues;
• the key documents or evidence;
• what has happened in negotiations;
• the principal obstacles to settlement; and
• anything else the mediator needs to understand before the day.

There will be cases where substantial legal analysis is necessary.

But the purpose is not to win the case in the position statement.

The mediator isn’t deciding it.

A concise, persuasive explanation of the dispute is often considerably more useful than reproducing the skeleton argument which would eventually be put before the judge.

8. Tell the mediator what the mediator needs to know

Not everything useful to the mediator necessarily belongs in an open position statement exchanged with the other side.

There may be matters which are better communicated confidentially.

Perhaps there is a commercial problem affecting the client’s position.

Perhaps there is an obstacle to settlement which the other party does not understand.

Perhaps there is a personality issue.

Perhaps the negotiations have stalled for a reason which isn’t apparent from the correspondence.

Perhaps there are possible settlement structures which the client is prepared to explore but does not yet want communicated as an offer.

That information can be enormously useful.

A confidential conversation or note to the mediator before the day can save hours of trying to discover something which one side already knows.

9. Think beyond money

A court has a relatively limited range of remedies.

A mediation doesn’t have to.

Obviously many cases ultimately come down to a payment.

But not all of them do.

Could the settlement involve staged payments?

Future business?

Completion or rectification of work?

A transfer of property or shares?

A reference?

Confidentiality?

An agreed statement?

An apology or acknowledgement?

A mechanism for dealing with future disagreements?

A timetable for leaving premises?

A practical arrangement governing access or a boundary?

Some of the best mediated settlements contain provisions which a judge could never have ordered.

Don’t wait until the mediation to start thinking about them.

10. Prepare for the final two hours

A mediation which appears hopeless at 3 pm may settle at 6.30 pm.

That is not unusual.

Negotiations can take time because parties need to absorb information, reassess risk and become comfortable with compromises they would have rejected at the beginning of the day.

So don’t create avoidable obstacles.

Don’t arrange transport which means somebody absolutely has to leave at 5.15 pm.

Don’t allow the only person with settlement authority to become unavailable halfway through the afternoon.

Have the people required to draft or approve settlement terms accessible.

Think beforehand about what the settlement document may need to contain.

And don’t mentally abandon the mediation simply because very little appears to have happened during the first few hours.

Sometimes the final movement comes surprisingly late.

11. Choose your mediator carefully

Finally, think about who should mediate the dispute.

Mediators are not interchangeable.

Different disputes may require different approaches.

Does the case need somebody with substantial litigation experience who can understand the risks quickly?

Does it require specialist knowledge of a particular area?

Is the principal difficulty legal, commercial or interpersonal?

Would the parties respond better to a mediator who is strongly evaluative, predominantly facilitative, particularly persistent, or experienced in dealing with difficult personalities?

Does the mediator have enough time before the mediation to understand the papers properly?

And, importantly, will both sides have confidence in that person?

The identity of the mediator can affect the dynamics of the entire process.

At ProMediate, we provide civil and commercial mediation across a broad range of disputes, including commercial contracts, shareholder and partnership disputes, property and boundary disputes, probate and inheritance claims, professional negligence, construction and other civil litigation.

We can help parties select a mediator whose experience and approach are appropriate for the particular dispute.

Because choosing a mediator should not simply mean choosing the first available name on a list.

It is part of preparing the case for settlement.

One final point: don’t decide the outcome before the mediation starts

It is sensible to think about settlement parameters before the day.

It is less sensible to decide that there is one immutable bottom line and that nothing which happens during the mediation can possibly change it.

Information develops.

Risk can look different after it has been tested.

The other side may explain something which had previously been misunderstood.

New settlement structures may emerge.

A mediator may ask a question which nobody has previously asked.

Good preparation gives you a framework for making decisions.

It shouldn’t prevent you making them.

Conclusion

The best prepared party at a mediation is not necessarily the party with the largest bundle or the longest position statement.

It is the party which understands its own case, understands the other side’s case, knows the numbers, has thought seriously about the alternatives and arrives with the ability to make decisions.

Trial preparation is about presenting the strongest possible case to a judge.

Mediation preparation is different.

It is about putting yourself in the best possible position to recognise — and construct — a sensible agreement if the opportunity arises.

Peter Causton is a barrister, civil and commercial mediator and Director of ProMediate (UK) Limited.

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• 10 Warning Signs That It May Be Time to Mediate
• 10 Types of Dispute That Are Particularly Suited to Mediation
• 10 Cases That Show Why Litigation Should Sometimes Be the Last Resort
• 10 Major Disputes That Settled Through Mediation – and Some You May Never Have Heard About