These notes are offered to assist you to advise and represent your client effectively in mediation. They are not designed to help you achieve any particular outcome nor to suggest that the mediator will be affected by any particular approach.
- Prepare well in advance. Representing a client in mediation is a challenging role. At different times, you may act as advocate, adviser and counsel to your client. Think about how you might prepare yourself and your client for these roles. How will you help your client to negotiate effectively and to listen to and respond to the other side?
- Ask yourself and your client what you actually wish to achieve – and why. What are your objectives? What are the options for resolution? It is sometimes helpful to prepare a list of outcomes and to identify priorities, with an explanation of what each would mean to your client in terms of time, money and future relationships. What proposals might you make, remembering that, in negotiations, non-monetary matters are often as important as those with monetary value?
- Gather all the relevant documentation and sift out the crucial facts. What will matter in discussions which are designed to achieve a resolution? What are the real issues in the case? What are your client’s true interests? What concerns does the client have? What factors are relevant other than those in the documents or court papers? It is usually necessary to ensure that you have a clear understanding of your client’s financial situation.
- Ensure that all relevant material, figures and supporting documentation is easily accessible on the mediation day. Consider what documents you may wish to agree with the other party or parties to mediation as being useful to the process.
- Consider strengths and weaknesses on both sides. What are the risks and benefits of different routes? For example, if the case does not resolve in the mediation, what will happen? It is often helpful to consider your Best Alternative to a Negotiated Agreement (BATNA) and the Worst Alternative to a Negotiated Agreement (WATNA). These set benchmarks against which to assess any proposals.
- Consider the other side’s situation and what a satisfactory outcome might look like to the other side. Try to obtain an understanding of their likely position and concerns. Consider what concessions you might make and list each in order, with consideration of what each concession might mean in terms of time, money and future relationships.
- Mediation offers a unique opportunity to explain your client’s approach to the other side. Consider what the other side may need to know or may not fully understand. Consider how best to present your client’s situation. What will make the most impact on the other party, in a constructive way? What might help to break deadlock? What proposals might you make? Similarly, mediation is an opportunity for your client to ask questions and to gain a better understanding of the issues in dispute – and to hear from the other side. What more do you need to know? What questions do you wish to ask?
- In the opening phase of the mediation day, there may be an opportunity to present a statement of your client’s position in an opening joint meeting. Who will do this? You or your client? Or both? What do you wish to include in any statement and how will you and the client present this position? What language will you use? What effect do you wish to have on others in the room? How will you help to achieve an environment in which a solution can be found?
- Before and subsequently, you and the client will probably have meetings in private with the mediator. What can you usefully discuss and reveal in these, confidential meetings? What will help the mediator help the parties to resolve the matter?
- Ensure that your client has authority to reach a conclusion. If your client does not have direct authority to resolve the matter, then ensure that there will be ready access to a person with authority to do so.
Appendix
The mediator may often ask parties to prepare in advance or at the beginning of the mediation day by addressing some specific questions.
These may include the following:
- What are your overall objectives?
- What in particular are you seeking to achieve?
- What is in dispute? What do parties have in common?
- What are the strengths? What are the weaknesses?
- What are the needs? What are the concerns?
- What might the other party’s needs be? Their concerns?
- What do you think the other side need to hear from you? What might you say to the other side?
- If you do not reach agreement, what are the alternatives?
- What costs have you incurred to date? If you do not reach agreement, what costs will you incur in future?
- If you do not reach agreement, what other consequences will there be? For you? For the other party?
- What are the options for resolving this matter?
- How will you assess any proposals put by the other party?
- What proposals might you make?
