Preparing for mediation

Claire Scaramanga asks Jeremy Frost about the preparation each party should undertake before going into mediation.

What should the parties do to prepare for their mediation?

The main preparation the mediator wants the parties to do is to clearly understand their position and that of the other party. They may want to write a paper putting forward their case.

This can be a useful exercise, so that there can be an agreed paper about the facts of the dispute.  It is also helpful for the mediator.

What else might they consider in advance?

There are several questions that each party should work out the answer to before the mediation, so that they are have considered their position from the outset. These include:

  • What are the red lines that we are not prepared to cross?
  • What could the other side could give us, that may not cost them anything, that would benefit us?
  • Is there anything we can do that would help them?
  • Do we want to work with them again?
  • What are the benefits of resolving this now?
  • How can we prevent this from happening again?
  • What damage could be done to our reputation by not handling this well?

How much time should the parties allocate for mediation?

The intention is to reach an agreement within the day, so the parties should keep the whole day clear, as well as the evening. This is because it can take some get to get people to move from “attack” mode into “settlement” mode. The element of the time taken, and perhaps a degree of boredom, can help move them into settlement mode.

If it does take until early evening to get to settlement mode, then you want to be able to keep going into the evening to reach agreement in the one session.

How should the mediator prepare?

The papers with the details of the dispute are helpful to have in advance, but generally the mediator comes with a blank sheet of paper.  It is the parties’ day, not the mediator’s.

The mediator will have a wide range of things that he is ready to talk about: he will want to get to the heart of what it is each party wants in a calm, unpressured way, which is at the opposite end of the scale to the confrontational approach of a court case.

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