Content
1. A face-to-face or a video conference mediation?
Once upon a time, all mediations took place face-to-face. Increasingly, the wonders of modern technology mean that mediations can take palce virtually by video conference with the parties and their advisors potentially scattered far and wide. The video conferencing platfom we use mirrors face-to-face mediation exactly: each side has their own private virtual "room" where they can discuss matters in confidence, with and without the mediator, and there are also "rooms" for joint sessions should we need them. There's even a virtual "flip chart"! Costs for a video conference mediation are lower, both because our fees are a little less, and because there's usually a saving in travel time and costs for the parties and their advisors. We may also be able to be a little more flexible on dates for an online mediation, simply because we don't have to factor in travel to the venue. But, some will always prefer face-to-face mediation. It's your call (except perhaps during a pandemic, when the balance of advantage probably shifts in favour of online mediatoin).
2. Logistics.
If it's to be a face-to face mediation, you'll need to agree a venue with the other side. It's usual to share the cost between the parties. We'll need at least two rooms, one for each party. For each extra party, we'll need an extra room. It shouldn't be possible for a party in one room to overhear, or see, what's being said or done in another room. Ideally, there will also be a third room for joint meetings, though if cost or space is an issue we can make do without it, so long as one of the parties' rooms is big enough to accommodate everyone should we hold a joint session. If there is not to be a separate third room, it can be really useful for the mediator to have a desk somewhere, even if it's in a waiting area or an empty office, just as a base for them during the day. We will need access to printing facilities so that we can print any settlement. And we'll need access to tea, coffee, and water throughout the day! It can also really be really useful if there's wi fi so that we can access the internet.
Sometimes one party's solicitor or barrister offers facilities free of charge, and it's natural for the other side to feel that perhaps they'd prefer a "neutral venue". That's understandable, but, on the whole, if one side is able to offer suitable premises at no cost, it may make sense to accept the offer.
If you do need to locate premises, there's a list of mediation venues that we've mediated at, and found to work well, here.
If it's to be a video conference mediation, there's a bit less work to do, but you'll need to make sure you have downloaded Zoom, which we use to host the mediation online. If you don't have Zoom on your computer, laptop or tablet, you can download it here. Don't worry about paying for Zoom Pro, we've done that so that you don't have to, so the free version will do fine. And then a day or two before the mediation, we'll usually suggest having a practice "link-up" just to make sure that everyone is familiar with how the platform works and to iron out any technical glitches. And we don't want to lose time on the mediation day whilst someone looks for the "unmute" button!.
3. Read the Mediation Agreement.
We'll send you a copy of our mediation agreement in advance. You can also find the gist of it online, here. It's quite the most technical and legalistic part of the mediation process so don't let it put you off! It is important because it sets out the rules for the mediation e.g., as to confidentiality. If you have any questions, give us a call or drop us an email.
4. Agree a Mediation Bundle.
It's really helpful if you can agree a joint bundle with the other side, 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 actually works best if the parties approach the mediation on the basis that it is a negotiation, not a trial. We suggest that you keep the agreed bundle to one hundred pages, which we usually find more than sufficient, please, or as close to that as possible.
We prefer to receive the bundle in PDF form, please.
Sometimes the parites argue over what should go into the bundle. Remember that a mediation isn't a trial, so questions of what is legaly "admissible" don't apply. And if the other side want to show the mediator a document that you object to in private session, you probably won't be able to stop that anyway. So, if one side thinks it's relevant, it's often best to put the document into the bundle for ease of reference.
5. 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's too long, or goes over ground that is covered elsewhere, it may be seen simply as an attempt to brow beat the other side, and that's usually counter productive. A rule of thumb might be that if your Position Statement is longer than four to six pages, you may want to consider whether what you have produced has strayed beyond the confines of a statement of your position. 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.
6. Pay the Mediation Fee (please!).
We do ask that all parties pay the Mediation fee by the start of the mediation, please.
7. Arrive on time.
Most people like to arrive a bit early to give them time to settle in. Mediations are usually timed to start at 10.00am though in London we may suggest a 10.30 start to take account of the London traffic!
8. Don't give up hope.
Most mediations do settle!
