In the wake of recent changes to the courts’ view on alternative dispute resolution in small claims (>£10,000) which my colleague Priya Sejpal has written about, mediation is increasingly finding itself in the spotlight. Mediations are, at times, unpredictable, and it is worth bearing in mind a number of useful tactics to help achieve a meaningful result.

BEFORE

Preparation

As with everything, preparation is key. Make sure that you are clear on what mediation entails, and importantly, what it doesn’t. We are often asked what legal arguments we will be presenting and how we are going to refute the opposing party’s claims. A mediation is not a court hearing and therefore is conducted outside the scope of court proceedings.

That being said, this is not an open door to vent about the other side’s behaviour, as tempting as this may be. Maintain a positive attitude and remember that mediation must be conducted with a genuine view to try and settle the claim.

Lines in the sand

Try to pin down what your parameters are, and what are the lines that you will not cross. You should think about this in terms of things you want, but are flexible, and things you need and cannot sacrifice. Consider what it is that you must have, and what you would like to have. If there is any flexibility on this, you should also make this clear to your solicitors. Principles can be costly, and it is important to remain pragmatic, open, and logical throughout.

A good starting point is to calculate the sums you will be risking by heading to trial. Depending on how far you are in proceedings and how much further you go this will affect the legal costs you incur in legal costs by continuing to trial. Is your case strong enough to have a good chance of success? Bear in mind that even if you are successful, you will not receive all of your legal costs.

Logistics

With mediation being a flexible choice of alternative dispute resolution, video attendance is a popular option. Although it may seem obvious, the mediation can get started quickly and be more effective where the parties are not wasting time trying to work past technical difficulties. Where you are dialling in, having a call with your solicitors the day before to ensure the technology is compatible, and using a room with appropriate video-conferencing equipment is a sensible move. Where possible, try to appear on video, rather than by voice-only phone call.

If you are dialling in because you are based abroad, consider the timing: if you have a particular time by which you need to leave, ensure this is aptly communicated in advance of the mediation.

DURING

Coming across well will be conducive to moving discussions along at a good pace and in the right direction. Crucially, the first interactions will set the tone, and if the other side sense anger or hostility, they might rightly be minded to abandon the exercise.

Offers

Offers should be carefully thought out and have some sort of meaningful reasoning behind them. Sending offers for the sake of doing so may irritate the opposing party, and even cause them to abandon the mediation if this persists.

Try to get a first offer in as soon as possible, to firmly put the ball in the other side’s court. This will also anchor your price and set the bar. If you can get the other side to put in the majority of the legwork in response to your offer, this will allow you to remain calm and focused, whilst they are trying to match your offer and reasoning. You should also not be making multiple “final” offers, and doing so may weaken your position.

Generally avoid getting bogged down in divvying up proportions for costs and compensation, though this will likely change depending on whether you are a commercial client or an individual. Overly referring to costs when making an offer can have negative connotations of blame or liability and can scupper mediation if this is focussed on too much. Ultimately, the other side can decide how to split money between themselves and their lawyers. However, sometimes this does need to be considered, and if you do need to include costs, think about this early on rather than bring it up late in proceedings, as this can scupper progress at a frustratingly late stage.

Ending a mediation without a settlement can be frustrating, so also consider putting your best offer in a formal Offer to the other side the following day.

Emotional triggers

They say where emotions are high, intelligence is low, and this is true for mediation sessions where candid conversations can often become quite heated. It would therefore be wise to consider your emotional concerns i.e. what do you really want the mediator/other side to understand about your views and the perceived wrongdoing? Are there issues that would be best left unaddressed? Once aware of the anxieties or worries, parties and the mediator can be sensitive to the signs of potential emotional triggers.

The Settlement agreement

As rewarding as it is to succeed at a mediation, there is also something to be said about an “unsuccessful” mediation. It will give you food for thought and allow you to consider your options going forward, particularly in terms of future offers.

If the matter looks like it may be on track to settle, it is worth your solicitors preparing a settlement agreement to have ready for when a settlement is reached, and the mediation comes to a close. By the time the end of the mediation, it should just be a question of entering the final figures and terms, ready to sign. Where there are live proceedings, consideration should be given as to which party agrees to file the Consent Order/Tomlin Order, to ensure this does not become a problem post-settlement.

Conclusion

I have heard mediations referred to as “wars of attrition” or “marathons, not sprints”, and it is easy to see why many lawyers and clients fall into the trap of treating it as such, particularly where there are live proceedings in an emotionally charged case. Keeping a calm head and entering with a genuine interest in settlement will often prove exceptionally helpful.

It is important to treat mediations as an opportunity to settle early before incurring the legal costs of a trial, and avoiding the stress of giving evidence in front of a judge.