Many of my cases are litigated cases — with the majority of those being post-discovery High Court and District Court matters where the parties involved are sufficiently informed about their own case, and that of the other side’s, to attempt settlement. Often a trial date has been assigned and the parties know that the mediation presents the last and best opportunity to resolve matters short of a hearing.
The mediation can be seen as a two-stage process — first, premediation and then the mediation day itself.
The premediation stage is primarily logistical, agreeing such things as the mediation agreement, what documents should come to me as mediator** exchange of any outstanding documentation such as updated expert reports or quantum calculations etc and advice as to who will be attending on mediation day. In straightforward matters I can facilitate this by e-mail, however it is not unusual that we meet by telephone conference some weeks in advance to sort out these details and to agree an orderly timetable.
In turn, the mediation day can be broken down into 4 main stages;
1. Opening matters such as signing the mediation agreement by the parties and signing a confidentiality agreement by those non-parties attending such as experts etc, my opening comments as mediator and the parties opening statements.
2. Case analysis — in this stage we discuss the merits of each party’s position and each party gets to value the case, both their own and the other side’s. This can often be a lengthy discussion, usually taking the majority of the morning and often involving the background to the dispute, the legal arguments available to both sides and anything else that is relevant. It is not unusual to see parties providing new information to the other having by this time briefed witnesses or produced will-say statements for the mediation.
Among other things, the case analysis stage involves determining;
- the chances of succeeding (fault or liability)
- what a party gets if they win the case (damages or quantum)
- the costs of going to court (legal/expert costs, lost opportunity and reputation costs etc)
- the likelihood of collecting judgment (paying/losing party’s ability to pay)
3. Negotiation — at some point after discussion of the merits, there will be a natural shift towards resolution. In litigated cases, my primary role at this point is to assist parties to make constructive, thoughtful proposals and counterproposals, often helping parties overcome their negative reaction to the other side’s proposal and to develop an appropriate response that keeps negotiation moving.
Eventually, and this is an incremental process, most cases settle if the parties are able to reach their best numbers during this stage of the mediation — once parties are at their best numbers they find out what the real gap between them is and settlement usually follows. Most mediations that do not result in settlement, don’t for whatever reason find that “real gap”.
4. Thereafter we document the agreement, usually producing a handwritten settlement agreement for signing by the parties that records terms upon which they agree to discontinue their litigation, including;
- full and final settlement of all issues in dispute
- the amount to be paid and when
- confidentiality of settlement terms
- denial of liability
- discontinuance of court proceeding
**Often the parties agree I should simply see the pleadings and any relevant background material such as contracts, correspondence etc. Where court proceedings have not been issued it is often helpful for both me and the parties themselves for counsel to prepare mediation briefs that may be exchanged or kept confidential at counsel’s option.
Briefs to the mediator can include all or any of the following;
- the background
- the history of any settlement discussions
- the issues for mediation
- what you see as the principal barriers to settlement
- any other information you want me to know to better understand the matter from your client’s perspective.
If you would like to know more about the actual structure of the mediation you can read it here
