In our previous e-briefing we discussed the mediation process. Preparation for mediation puts you in a better place to influence the other parties and to shape the outcome.

Your lawyers (and perhaps barristers) will have provided an analysis of the legal issues involved and their assessment of how the legal system may deal with those issues. You need not speak to the other parties at the mediation (unless you wish to) and can rely upon your lawyers to present your case. But you do need to prepare.

It is likely that you have been dealing with the other side for longer than your lawyer and know your opponent better than your lawyer does. If you simply turn up for the mediation and hope for the best, you may be able to reach a deal with the other parties, but to negotiate the best possible outcome you should prepare. Consider:

  • what do you want to achieve? - Usually a monetary amount but also commercial or other goals depending on what your needs and interests are.
  • what are the strengths of your case and the problems?
  • what problems does the other side have? - can you make use of them?
  • what are the benefits of being in the same place as the other side for a day?
  • what are the obstacles to settlement? - can you think of any ways to overcome them?
  • what range of possible solutions are achievable? Could you create value which could meet the needs and interests of the other side?

Mediation is often a long and stressful day. It is important that beforehand you have thought about the least attractive settlement terms that you could live with (but are still preferable to going to Court), think about:

  • the realistic range of likely outcomes if you don't settle and you go to a Court hearing;
  • how long that may take and the likely cost in legal fees (and distraction from your own work/business); and
  • how far you might be able to realistically change the views of your opponent at mediation.

On a practical note, mediations are usually conducted in conference rooms with unpredictable air-conditioning. It is a good idea to bring something to read (there can be long dull periods while you are waiting for the other side to respond) and a notepad to help you keep track of the negotiations. Mediations often continue past normal office hours - make sure you are able to stay until the deal is finalised.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.