Mediation Guidance
If you are preparing for a mediation, you will need to consider a number of important issues and prepare a number of documents:
- Agree a date with the other parties. For my availability, e-mail: mediation@richardbutler.com
- Make sure any stay of proceedings is sufficiently long.
- Agree a venue (one room for each party plus large room for all attending).
- Check that the necessary decision makers, with authority, will be able to attend.
- Make sure the solicitor's undertaking which I require at least 7 days before the hearing can safely be given, e.g. by obtaining a payment on account of disbursements - see Terms & Conditions
- Agree the mediation agreement with the other party or parties. See below.
- Prepare a mediation submission for the mediator and the other parties to see.
- Agree a mediation bundle with the other party or parties.
- Supply the solicitor's undertaking - see Terms & Conditions
- Send me your mediation submission and the bundle in good time.
- Make sure the decision makers attending have full authority.
- If there is any chance that further advice may be needed (the tax status of
a possible payment?) make sure you can get access to that advice.
- Print engrossments of the mediation agreement.
- On the mediation day, you will need to bring a schedule setting
out the costs of your client calculated to the end of the
mediation day, plus anticipated further costs to trial.
- Attend on the day with decision makers.
Mediation Agreements
A number of mediation organisations make their specimen mediation agreements available online. Word versions of some of these can be supplied.
Mediation Submissions and Bundles
It is usual in commercial mediations for the parties to prepare a document (called a submission or position statement). Here is some guidance:
- As CEDR helpfully say in their guidance, papers should aim to educate
the mediator and persuade the other party to negotiate.
- If you are tempted to copy and paste your statements of case into
the submission, don't. Just refer to your statements of case and
make sure they are included in the bundle. I usually find that if
the case is already pleaded, the statements of case give me a good
understanding of the principal issues without needing this to be
repeated at length in specially prepared submissions.
- Briefly outline the legal issues and any central disputed issues
of fact in the submission.
- The statements of case will rarely explain why, on the facts pleaded,
the party says it will succeed. If you rely on legal principles, case
law or statutes which are not obvious to the other party and will not
be obvious to the mediator, briefly describe them and their relevance.
- Explain the current procedural position (trial date, stay for
mediation etc.)
- Describe the nature of the parties' businesses and, if they
have any continuing relationship, describe it.
- A detailed understanding of all previous without
prejudice negotiations plus copies of any Part 36
Offers and responses to them and any payments into
court is very important.
- Frequently mediation bundles include quite a lot of
unnecessary material - evidence which will be important
at trial for painting a full picture to a decider of fact,
but which does not really need to be considered in advance
by a mediator.
- Sometimes mediation bundles and submissions are very light
on quantum materials. I would always want to know in advance
how the full quantum of any money claim is built up.
