1. Identify premises.
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. 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.
2. Read the Mediation Agreement.
We'll send you a copy of our mediation agreement in advance. You can also find a copy here on our Downloads page. 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.
3. Agree a 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 it to us by the Friday 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. Witness statements can be helpful, though maybe if they just set out what's in the pleadings they're less crucial. 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. We do ask that you keep the bundle to one lever arch file (for a full day's mediation) or one hundred pages (for a time limited mediation). You can always bring other documents along to show the mediator on the day.
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.
4. Consider 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.
5. Don't give up hope.
Most mediations do settle!