How to prepare and present your case at a mediation session

Adam Gersch, Barrister, CEDR accredited mediator and Managing Director of Global Mediation Limited stresses the importance of preparation.

Mediation is designed to be quick and easy. This short guide is designed to save you time when you decide a case may be suitable for mediation.

1.Select a good mediator or mediation service provider. Most mediation providers will suggest a mediator or provide a selection of suitably experienced mediators from their accredited panel. Check the mediators experience, qualifications and insurance. Review the mediation procedure. What arrangements are in place for ensuring confidentiality? Will the organisation set up the mediation session for you, contact other parties and provide the venue? Before instructing a mediator, check cost and level of service – are preparation, travel and other disbursements all included?

2.Know your case. Effective preparation need not take a long time. Remember that the session involves a discussion of the case rather than a presentation of the evidence as would be expected at a trial. Identify key facts, witnesses and documents and list the main arguments on liability and quantum. Be clear about your client’s objectives.

3.Prepare a short case summary for service prior to the mediation. Give consideration to a confidential settlement statement for the mediators’ use only. Identify the main documents essential to explain the case.

4.Make a list of the strengths and weaknesses of your case and that of your opponent. Consider your potential settlement range. What could you learn at the mediation that would alter your view concerning settlement? Give thought to your negotiating strategy and be prepared to assist the mediator in determining the best way to persuade the other side of your position.

5.Determine who should attend the mediation, and how they will participate. Presentations by a client can be very effective. Discuss the mediation process with your client, so they know what to expect. Always ensure that you have sufficient authority to settle the case. If you have any doubts – tell the mediator.

6.Prepare and practise a short opening statement for the first joint session. Introduce yourself, go over the main facts and explain your analysis of the case. Keep the presentation concise. Be prepared to acknowledge weaknesses and try to appear objective and reasonable. If your presentation follows your opponents, indicate any agreement or disagreement with their statement. Describe previous attempts to settle, and reiterate your willingness to resolve the dispute.

7.During the mediation, examine the points of the agreement and disagreement. Consider the best likely outcome if the case is not settled. Then discuss the worse likely outcome with your client, assess the risks and explore areas of potential movement. Ask the client to rank their demands in order of priority – you may be surprised! Be prepared to discuss creative settlement options at the mediation; your client should be reminded that nothing is binding until an agreement is signed.

Finally, keep in mind that the large majority of mediation sessions do result in a settlement. Even where no settlement is reached, the number of disputed issues is usually reduced. Invariably, you will have learnt more about your opponent’s case and perhaps observed new aspects of your own.