Steps to a successful mediation

Why consider a mediation?

In comparison to other forms of dispute resolution, such as litigation or arbitration, mediation is quicker and (if successful) more cost-effective. Mediation encourages open communication and allows parties an opportunity to work together in an effort to resolve issues between them.

1. Understand your case

Before attending a mediation it is essential to undertake a detailed review of the facts and key issues relevant to the dispute. This will require a critical evaluation of the strengths and weaknesses of your own case, as well as the other party’s. In order to identify where your strengths and weaknesses lie, it can be helpful to try to look at the dispute from the perspective of the other party. This will ensure you are prepared for what the other party might assert, and assist in the evaluation of any offers proposed (against your own assessment of the risk of proceeding to formal dispute resolution proceedings, such as arbitration or litigation).

2. Choosing the right mediator

Mediators often have substantial influence over the mediation, and selecting the right mediator is a significant decision. Among other things, it will require research into the skills, experience and style of the mediator.

First, it is important to consider whether your matter may benefit from having a mediator with experience or expertise in a particular area, for example, engineering or environmental matters. Although it is not essential that a mediator have legal expertise, in some circumstances, it may be helpful. This could be the case if there are a number of key legal issues between the parties or if you are interested in testing your legal arguments prior to any potential arbitration or litigation.

Second, it is essential to note that mediators will sometimes adopt a particular style. For example, a facilitative mediator will seek to encourage and guide discussions between the parties but may not provide his or her opinion (or even offer a recommended course of action). By contrast, an evaluative mediator may be more proactive and point out to the parties any weaknesses in their respective cases.

A mediator’s style can have great impact on the potential for the parties to reach a settlement. It will be necessary to assess whether a mediator’s particular style will work with your issues and complement your strategy.

3. A clear strategy

A focussed strategy is integral to a successful mediation and you should ensure that your objectives are well understood and clearly defined.

Consider what it is you want to achieve from the mediation and determine what you are willing to compromise on. It is often useful to be creative and think outside the box – the best solutions are typically those that are not only good for you but also benefit the other party.

Prior to the mediation you will also need to establish who will attend. Ensure that you have a decision maker in the room with authority to reach a binding agreement. In certain circumstances the selection of participants can set the tone of the meeting. For example, if a participant in a senior role attends it can indicate to the other side that you are serious about reaching an agreement. This may result in the other party being more inclined to engage in productive discussions.

4. Understand the terms of any offer

When it comes to making or accepting an offer, be clear on what the offer includes. If you are making an offer, plainly stipulate any conditions.

If you are considering an offer made by another party it is crucial that you understand the offer and all of its terms. If there is any ambiguity you should ask questions and seek to clarify before accepting or rejecting the offer.

When contemplating an offer it is important to evaluate it in the context of what would happen if it is not accepted. For example, if rejecting an offer would lead to litigation, it would be appropriate to factor in the potential cost. Would it be more cost-effective to compromise and settle or reject the offer and incur litigation costs (given the assessment of the risk of success/failure)? This process is often referred to as assessing the strength of your BATNA(1) (best alternative to a negotiated agreement).

Also note if you are planning to use the word “final”? in respect of an offer you make, be sure it is final. Maintaining your credibility in a mediation is critical to achieving a successful outcome.

5. Be prepared to walk away

A successful mediation does not necessarily mean reaching a settlement on the day. Don’t be discouraged or feel compelled to compromise because you feel pressured to close things out in the moment.

Even if you are unable to reach an agreement you may be able to significantly narrow the matters in issue between the parties or better understand the other party’s position and commercial drivers. It may also alert you to aspects of your case that require attention in order to strengthen your position going forward.

Final thought

Although mediation won’t be appropriate for every dispute, it is often a useful forum for seeking to resolve disputes, particularly if the parties are concerned about preserving an ongoing commercial relationship.

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