How are you going to derive maximum value out of the mediation day? After all it is a key point in the life of a dispute and the opportunity cost of failing to settle can be huge.
Parties usually exchange Position Statements and key documents around 7 days beforehand. A Position Statement should not simply repeat a party’s case. That should already be clear from the pleadings or Protocol letter of claim/response.
The objective of the Position Statement should be to lay the ground for the mediation day. So while it will naturally provide an overview of the legal issues, it should also consider the dispute in its wider commercial context as well as any other matters such as an ongoing business relationship or possible insolvency issues.
Often there is a plenary session at the start of the mediation which all participants usually attend. This helps to set the scene and, conducted properly, ensures that all participants are collectively invested in trying to reach a settlement. The mediator will often also summarise the key issues and the wider financial implications for both parties of not resolving the dispute.
Where lawyers are engaged they may be tempted to come out on the offensive. However, that risks the opening session being counterproductive. There is obviously a balance between getting key points across early on in the day while also still emphasising the need for collaboration and compromise. A robust approach and a willingness to engage constructively are not mutually exclusive.
Sometimes clients may want to speak at the plenary session. Again, there is a balance. Some venting by a claimant may be necessary. Too much and it quickly loses impact and may be counterproductive. Generally, less is more.
A party may comprise not just clients and lawyers, but also insurers, litigation funders and expert witnesses. Each may have a slightly different outlook and perspective on the mediation. It is therefore important for the mediator to be aware of each person’s role and the various different dynamics.
For example, what if an error by a professional adviser to one of the parties only emerges on the day and has a bearing on Party A’s risk assessment? Party B party may be tempted to make a meal of it. However, if it creates a rift in Party A’s room it may actually be counterproductive to reaching a settlement.
The mediator should therefore be alive to such issues and without losing sight of them try to smooth them out where possible in order to maintain a constructive dialogue leading to a settlement.
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- Our rates are the same as other mediators charge for 1 mediator and no software.
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