Twelve tips for a successful mediation
Published on 15th Sep 2023
Mediation can provide a way to actively manage risk arising from disputes, and businesses need to be aware of how to get the most out of a mediation
Mediation is a flexible, confidential process in which a neutral person actively assists the parties to work towards a negotiated agreement. Throughout mediation the parties are completely in control of managing their personal or business risks.
Mediation requires the parties to work together to reach a compromise and neither party will come away with 100% of what they wanted. The Centre for Effective Dispute Resolution (CEDR) reported that in 2022, 92% of the cases referred to mediation were settled.
A successful mediation can be broken into three stages: preparation, negotiation and the settlement itself.
1. The point of a mediation is to settle
...not to convince the mediator. Mediators are not meant to have a view on the merits of your case. Being open with the mediator can increase the chance of reaching a compromise, as he/she can suggest strategies to help reach a resolution.
2. Get your case in shape
Get your own case in as good a shape as possible in the run up to a mediation. This involves knowing the quantum of your claim, ensuring every point in your case is well supported by documentation and understanding where the weaknesses are. Then consider what a good (or acceptable) outcome at the mediation will look like to you.
3. Get the right mediator
The contract may nominate someone (or an appointing body) but usually there is scope to agree the appointment with the other side. The mediator will need the right background and expertise to understand the details of your case.
4. Prepare a mediation statement
The mediation statement summarising your position should not simply repeat what is in the statements of case. It can be helpful to use the statement to signpost the approach you will take at the mediation. Be aware, however, that the preparation of the statement can drive parties further apart.
5. No surprises
Do not spring surprises on the other side on the day as that will delay reaching a settlement.
It can be helpful for the mediator to meet with each side about a week before the mediation, to cover housekeeping issues and to have initial discussions about the claim.
7. Focus on practical solutions
At the mediation, focus on practical solutions, not the law. Use the initial joint session to suggest a structure for the day.
8. The first offer
Making the first offer can present a tactical advantage, as it can have an "anchoring" effect for further discussions and be a sign that you are serious about reaching a deal. If that offer is reasonable and well-explained, you are more likely to receive a counter-offer that is also reasonable.
Taking one step towards the other side can go a long way to progressing negotiations. Really listening to the other side and making an early concession (even if it is of little importance to you) can help the other side save face and encourage settlement.
10. Break the dispute down
Break the dispute down into elements that you can compromise on (and elements you cannot) and try not to demonise the other side.
11. Sign the settlement agreement
After a settlement is agreed, try to get it documented and signed on the day if you can. This prevents further protracted and unnecessary negotiations on the terms of the settlement agreement. Prepare a draft in advance of the mediation and ensure those with authority to sign are present at the mediation. Be very clear on what you are, and are not, settling (especially in relation to future claims).
12. Formalities for international settlements
If the settlement agreement has an international element (for example, the parties are based in different states) and any of the connected states have ratified the Singapore Mediation Convention, ensure you have some evidence that the agreement results from a mediation – such as the mediator's signature on the agreement. This will help you enforce the agreement in the signatory state should a party not comply with its terms.
Charles Crowne, Partner at Osborne Clarke, chaired a panel discussion with Rebecca Clark, a full-time mediator and Chair of the Civil Mediation Council, and Robert Adjetey, an Associate Director in Osborne Clarke's Construction Disputes team, on getting the most out of mediation as part of Osborne Clarke's Disputes Week of webinars.