If you have been involved in a dispute in the last few years that has ended up in the Courts, the chances are that you will have heard all about mediation. My previous article “Stop Gambling and Try Mediation” was written to make readers aware of the Court’s increasing interest in requiring parties to try mediation as an alternative to other more expensive methods of dispute resolution.
If you have already had a mediation experience and the experience was a positive one then I will forgive you for not reading on. If the experience was a negative one, then the chances are that your preparations for the mediation may not have been all that they should have been!
This article is written to assist parties in thinking about the mediation itself and the steps that the parties should go through in preparation for the big day.
Although it may be an obvious place to start, it is absolutely vital for any party attending a mediation to know both its own case and its opponent’s case inside out. Which facts are in dispute? Which are agreed? Which facts are critical and which are irrelevant? What remedy do you desire but more importantly what do you need? Sounds pretty simple, does it not? So why then do I mediate so many cases where the parties have clearly spent the months leading up to the mediation talking at each other as opposed to talking to each other and preparing properly!
It may be an extremely difficult thing to do, but seconding yourself [in mind only] on to your opponent’s team as part of your preparation can do wonders in terms of helping you predict where the potential blockages are likely to be in your negotiations. This process will give you time to think about available options to navigate around problems with your opposite number if you are to achieve a negotiated settlement in the mediation.
Now for some mediator jargon...
The next logical step can be frightening but is, again, absolutely necessary. It involves assuming that the mediation will fail and establishing what are your ‘BATNA’ and ‘WATNA’. Your Best Alternative To a Negotiated Agreement and Worst Alternative To a Negotiated Agreement need to be thought about in advance of the mediation. Establishing your ‘BATNA’ and ‘WATNA’ will allow you to contrast what you desire to achieve from the mediation with the best and worst alternatives if the mediation fails. Nobody likes to think about failure but refusing to think about ‘BATNA’ and ‘WATNA’ could mean that you are approaching the mediation with potentially over-optimistic aspirations.
There is a difference between what you need to obtain from a mediation and what you ideally would desire. For example, whilst you may be claiming £250,000 in the mediation, which is your desire, you may at the same time know that unless you obtain a minimum payment of £100,000 in the mediation you may be faced with the bank recalling its loan facilities.
Finally, remember there are options to settle disputes in mediation that simply are not available in court or arbitration. With this in mind, it is a good idea in advance of the mediation to think about what other things can be offered or received in the negotiation stage, e.g. future work, free issue materials, cost plus contracts, extended warranties, future discount etc. It is important to remember that something to which you attach little value may be highly valued by your opponent.
One more thing. You need to plan and decide who will be in your team for the mediation. “Coalface” people are often anchored in the past. They remember the problems and the arguments and often have no involvement with the opposing party going forward and do not always make the best attendees at a mediation. Clearly, you need someone in your team that has authority to settle the dispute and that person needs to be objective, realistic, flexible and with authority to negotiate the best possible shaped solution on behalf of your team.