1. Keep the evening of the mediation clear of engagements or other reasons to leave early: Mediations often develop a momentum toward settlement late in the day. The early departure of a key player (or your mediator) can destroy that momentum and chances of settlement. Choose another night to go to the theatre or your favourite restaurant.
2. Have a preparation meeting a week before the mediation: Use the preparation meeting to agree on your mediation strategy and “bottom/top line”. Aim to have the mediation bundle and case summary finalised in draft before the preparation meeting.
3. Prepare a draft settlement agreement before the mediation: The basic structure of a potential settlement can usually be anticipated before the mediation starts. Consider the shape and terms of the likely settlement, commit it to paper and take it with you. You will work towards your objectives in a more focussed way and can avoid wasted time drafting terms once a deal has emerged.
4. Don’t invite the other party to bid against themselves: Sending the mediator back to the other party inviting them to “try harder” and make a better offer may bring about deadlock in the negotiations.
5. Save your expert for the courtroom: Wheeling out your eminent expert to rehearse a technical case everyone already knows is unlikely to be persuasive at the mediation.
6. Leave Vesuvius behind: Spontaneous eruption by an excitable participant is liable to destroy the constructive atmosphere required for the mediation to work.
7. Make it easy for the mediator: You will probably see the mediator for less than half the time on the day. The mediator needs to be working hard the whole of the time building momentum toward settlement. Check beforehand that the mediator will have lunch and comfortable surroundings. Agree a spokesperson to communicate with the mediator when the mediator is in your breakout room. Make the mediator’s job easy on the day and seek to build a constructive rapport with the mediator.
8. Let the client make the final decision: The mediation is the time for the legal representative to step back and let the client decide their best outcome.
9. Be firm with the mediator: The mediator could tell you they are simply not prepared to convey your offer if the mediator considers it to be in the “insult zone”. If the mediator refuses and you disagree, be tenacious and do your best to persuade the mediator that the offer needs to be made. Any offer is sometimes better than no offer to get settlement discussions moving.
10. Make the mediator aware of your constructive suggestions for the conduct of the mediation: The mediator will have undertaken some pre-reading, but it is unlikely the mediator will possess the same familiarity as the parties with the “dynamic” of the dispute. If it is best that particular individuals are kept apart in the joint meeting then tell the mediator before the mediation starts. If you are of the view that a single mediator might be stretched managing a number of parties at once, suggest that there should be a co-mediator or competent mediator assistant at the mediation.
For further information, please contact Philip Eyre at
