Content
The Mediation Bundle
It's really helpful if you can agree a joint bundle with the other side, preferably paginated, so that if we all turn to page 43 during the mediation, we're all looking at the same thing.
We'd appreciate it if you can get a copy of that bundle to us in good time before the mediation, so that our mediators have the time to read it carefully. If you can get the Mediation Bundle to us by the Thursday before the mediation that would give our mediators the weekend to read it.
If there are court proceedings, it's very helpful if the bundle can include copies of each party's formal statements of case (what lawyers call the "pleadings" - The Particulars of Claim, Defence and Counterclaim, and so on). If there are key evidential documents (the contract or correspondence that's at the heart of the dispute, for example) we'd like to see those too. If there's been any correspondence about a possible settlement, we'd like to see that, please.
It's probably best to keep the bundle as slim as possible, because mediation is about focusing on the key issues, not getting bogged down in detail. A mediator is not a judge and is not there to evaluate the evidence, and mediation works best if the parties approach the mediation on the basis that it is a negotation, not a trial. We suggest that you keep the agreed bundle to one hundred pages, which we usually find is more than sufficient, please, or as close to that as possible.
We prefer to receive the bundle in PDF form, please.
Sometimes the parties argue over what should go into the bundle. Remember that a mediation isn't a trial, so questions of what is legally "admissible" don't apply. You won't be able to stop the other side showing a document that you might object to, to the mediator in private session anyway so, generally, if one side thinks it's relevant, it's probably as well to put the document into the bundle for ease of reference.
Position Statements.
Some mediators like the parties to exchange "Position Statements". We take the view that if each party's position is adequately set out in the pleadings that the parties have put before the court, or in correspondence, then there's no need to put everyone to the trouble of producing Position Statements that would just rehash what has already been said.
On the other hand, if there's nothing that sets out each party's position then a short Position Statement can be really helpful.
Ideally, a Position Statement should be exactly that: a brief statement of your position. If it is too long or goes over ground that is covered elsewhere, it may be seen as simply an attempt to brow beat the other side, and that is usually counter productive. A rule of thumb is probably that if it is longer than four to six pages, you may want to consider whether what you have produced has strayed beyond being a Position Statement.
As with the Mediation Bundle, we would ask for any Position Statement to be with us by the Thursday before the mediation, please, in PDF form.
