An early and important step for any mediation is to choose the right mediator, (and I will address that in a later post). Whether a successful outcome is achieved, however, will also depend on what you bring to the table as a participant in the process and I propose to focus initially on that aspect.
First and foremost, I strongly recommend that all parties come to the mediation with an open mind. Sounds obvious, but if parties have strong, pre-conceived ideas about how the process will work and what will (or more often will NOT) be achieved, the chances of success are reduced from the outset.
Needless to say, thorough preparation is fundamental. Some aspects are basic; some are a little more involved.
Give the mediator what they need to know to be effective
Your mediator has not “lived and breathed” the issues as you might have over preceding weeks, months or even years leading up to the mediation. They will never be able to get on top of all the detail in the usually short time frame afforded them. Nevertheless, they should be given sufficient information to understand the background and key issues in dispute.
Helpful information might include:
- prior offers or settlement negotiations
- key documents to be discussed at the mediation (over and above any court pleadings). For example –
- varying versions of a contract might be in dispute – give the mediator the different versions, or at least highlight the clauses in issue;
- a property or premises might be involved – give the mediator a plan, or photos, to give some context.
- useful chronologies
- expert reports; and
- position papers, if prepared.
Remember that it is permissible to give the mediator material for their eyes only. You must, however, stress the confidential nature of the information when it is sent to the mediator.
If the mediation is convened pursuant to a clause in an agreement, the mediator must be given a copy of the agreement or relevant clause to check if there are any particular obligations or procedures imposed upon the mediator.
Bring to the mediation what you need to be effective
If you are going to make bald assertions at the mediation, consider bringing along supporting evidence to put them beyond dispute. For example, it is common for a party to assert that a payment has been made or received, and yet at mediation there is no available evidence of the payment. If the opponent is saying the payment was not made or received, or it was for a different amount, the production of objective evidence (such as bank statements or valid receipts) can save wasted time debating the matter, or looking up bank records on mobile phones and laptops. Simple evidence (not sworn affidavits) can quickly resolve this type of minor issue and allow the parties to focus on the main issues in contention.
