The Importance of Pre-mediation Preparations

Some mediations are straightforward and proceed without a hitch, but others are so complicated that you wonder why you ever thought it was a good idea in the first place.  Regardless of the complexity of a mediation, pre-mediation preparation is key to ensure that you are always representing your client well.

If you don’t prepare properly for a mediation, it is highly unlikely that you will negotiate the best outcome for your client.

It goes without saying, that before a mediation can take place, you need to have a thorough understanding of the facts and circumstances of a claim and have obtained all relevant evidence to support your client’s position. In addition to the obvious, the following pre-mediation preparations are essential.

Manage your client’s expectations from the outset

As soon as you can, provide your client with advice on the strengths and, importantly, the weaknesses of their case as well as an assessment of the potential range of damages.  This advice is likely to change over the course of the matter, so remember to update your advice once investigations are complete and well before you attend a mediation.   Don’t forget to include advice about the likely costs your client will incur, and the impact of any potential costs orders.  As your client will be required to make settlement decisions during a mediation, they will be significantly advantaged if they properly understand the strengths and weaknesses of the case.

Prepare your client for the mediation  

Not all clients have experience with mediations and they can be extremely daunting and overwhelming.  Clients need to have a good understanding of how mediation works, the dynamics at play and what is required of them.  They need to understand not only the mechanics (e.g. there will be opening statements, break out rooms etc) but also the likely emotional toll of the day and the need for patience as there may be long periods of waiting.  It is helpful to remind your client that:

  • the mediator is there to help, is neutral and will not be evaluating the case;
  • parties are more likely to compromise if they feel listened to and respected – so avoid toxic or derogatory comments;
  • the other party will be forming an opinion of them so avoid exaggeration or false statements;
  • they should keep an open mind; and
  • they need to have set aside enough time for the negotiations to be completed.

Finally, it is important to discuss with your client before the mediation whether they want to make an opening statement.  If they feel able to, it is almost always beneficial, but make sure you help them plan what to say and how to articulate themselves.

Understand the negotiation style of your opponent 

This is important so that you can determine the strategy you will adopt at the mediation and prepare your client for what to expect on the day.  

Sometimes it’s not easy to find out about your opponent’s negotiation style as it is often something you learn through experience.  If you don’t know their style from first hand experience, then try to find out by speaking to your colleagues and by observing their style through any pre-mediation discussions, preliminary conferences etc.  

If your opponent’s negotiation style is a “positional” one, they are likely to start with an ambit claim and move incrementally in a way that seeks to maintain their sense of power and control.  “Saving face” is often very important to positional negotiators. 

“Interest based” negotiators, on the other hand, tend to look at the joint needs and interests of the parties and try to find a solution that addresses both.  They tend to place a greater value on open communication, active listening and maintaining or restoring relationships between the parties  Obviously, interest based negotiators are much easier to work with. 

Choose the right mediator 

Not all mediators are suited to every kind of case.  

You need to ensure that the style of the mediator you choose is suited to the nature of the dispute and the goals of your client.  Sometimes the dynamics of the parties will work better with a mediator who is more facilitative and encourages open communication, or in other cases, one that is likely to impose some authority.  Occasionally, the gender or ethnicity of the mediator may be relevant as some claimants (for example in historical abuse cases) may have difficulty with a particular gender or ethnicity.  In other instances, they may only trust a mediator of a particular status. 

It is also often helpful (although not essential) for a mediator to have some expertise in the subject matter of the dispute.  This may enable the mediator to really test the parties on their position and options and guide them to a resolution. You can also use any pre-mediation conference to inform the mediator of any particular issues or dynamics between the parties.  See my past blog “How to Choose the Right Mediator For Your Matter for a more detailed discussion.

Choose an appropriate venue.   

Traditionally, most mediations take place in solicitor’s offices or barrister’s chambers, but provided the rooms are comfortable and soundproof, many locations can be appropriate.  Since the onset of the Covid 19 pandemic, it is also now common for mediations to take place on various AVL platforms.  This remains particularly helpful if parties are interstate, if a claimant feels threatened, intimidated or anxious about being near their opponent (for example in abuse claims or compensation to relatives cases) or in cases where there are multiple claimants trying to settle multiple claims against the same defendant.       

If a mediation is to take place in person, just remember that if a party has mobility issues or it is a highly sensitive claim, you should pay special attention to the choice of venue.  Assisting your client to compromise a claim will not be easy if they have trouble entering a building, are physically uncomfortable or are forced to sit for hours in a “fishbowl” with people looking in all day. 

Understand your client’s authority to settle

If you’re acting for a claimant, then this is mostly a given as they will likely be in attendance with you.  A claimant may want, or need, to check with someone else (a partner or accountant etc) before agreeing to a final settlement so you should make sure you know this in advance. 

When acting for an opponent, corporation or insurer, however, it is really important to understand what level of authority the representative attending the mediation has.  Often they will have a certain limit of authority based on the evaluation of the case made prior to the mediation. Although this evaluation will be able to make some provision for anticipated evidence, it’s important to ensure that there are no factual or evidentiary surprises at the mediation that could significantly change that evaluation.  Often it can be difficult, or even impossible, for the representative to obtain additional instructions during mediation that go beyond their level of authority.  If this is the case, it can lead to an impasse and an unsuccessful resolution.

 

Pre-mediation preparation is key to obtaining the best outcome for your client.  All of the above steps will prepare you well and will help you to represent your client to the best of your ability on the day.  A good mediator will also assist with this by being available to chat at any stage before mediation and by holding a pre-mediation conference which will help to avoid surprise facts or evidence coming to light on the day, and where tricky issues can be flagged. If you would like to discuss the skills and approach that I bring to a mediation, please contact me on 0412 048 456 or by email on jsomerville@r3resolutions.com.au.

 

    

 

The Three Stages of a Successful Negotiation 

Negotiating the resolution of a matter at mediation isn’t always easy.  There is so much at play – different views of the facts; conflict between the parties; resentment; anger; hurt and often the feeling that nobody is really going to “win”. 

There is no magic answer to what makes a successful negotiation, but there are three important stages that need to take place for the process to be effective.  These need to be completed sequentially, as it’s hard to progress from one stage to the other if each is not properly completed.

Stage 1 – Preparation

Although it seems like the negotiations start at the mediation, the process actually starts well before that.  Preparation is key and involves building a relationship with your client and gathering evidence. 

To negotiate properly for your client, it is important to build a good relationship with them.  If your client does not trust you and doesn’t feel that you understand their position, they are unlikely to reveal all relevant information to you, or be persuaded by anything you say. Complete transparency and understanding between you and your client is fundamental to negotiating well for your client.

People have a fundamental need to be heard and by actively listening to your client and speaking “with them” and not “at them”, they are more likely to provide you with the information and evidence you need.  When speaking with your client, really listen to them and ask questions that demonstrate your interest in understanding their view – use more “how” and “what” questions rather than accusatory “why” questions.  For example “How would a warning sign have changed Mr X’s behaviour?”  rather than “Why didn’t Mr X look where he was going?”.

Once you have built a good relationship with your client and have earned some trust, gathering the right information should be easier.  Before any negotiations can take place,  ensure that you have and understand all relevant information relating to both you and your opponent. Consider:

  • Do you have all the factual information and evidence relevant to both liability and quantum?
  • Do you understand your opponent’s evidence on liability and quantum?
  • What does your client want to achieve from the mediation? Is the motivation financial? Do they want an apology?
  • Have you developed rapport with your client and gained their trust?
  • Do you have a collaborative relationship with your opponent, or is it characterised by adversarial posturing?

After you have built a relationship with your client and ensured you have all the evidence, you can then move to stage two.

Stage 2 – Devise a Strategy

This involves taking what you’ve learned and crafting your negotiations accordingly. 

Every human decision involves balancing perceived losses (or risks) and gains (or opportunities).  Most matters will settle before hearing as people are fundamentally averse to loss and will seek an outcome that provides some certainty.  In preparing a mediation strategy, it’s important to give some thought to what your opponent’s feared loss is, and how you can present an argument that will help them avoid that loss.

It’s also really important to understand and respond to the emotional elements of a claim.  This is particularly so when drafting a position paper and making an opening statement.  In stage one, you should have learned some key emotional drivers to the conflict, most commonly grief, anger and fear.  These emotions not only exist in cases involving abuse, death and catastrophic injury, but equally in business, employment and property damage disputes.  If you don’t deal with these emotions before and during negotiations, then rational, logical decision making is unlikely to take place (see my last two blogs on the Amygdala Hijack)

By understanding emotions and building on the information gathered in stage one through interactions with your opponent and during the negotiation process, you can learn what loss looks like for your opponent and utilise this to your advantage.  For example, you could focus on the loss to force acceptance of your offer or you could reframe your offer in a way that emphasises your opponent’s gain or opportunity.  Just don’t assume that your opponent’s perceived loss is simply having a judgement and costs order entered against them.  

When devising a strategy, it’s important to consider these factors:

  • The restorative effect of receiving an apology of direct personal response.
  • The impact that being treated a certain way may have on a person’s sense of fairness.
  • Any reputational loss by having a public hearing and a published judgement.
  • The benefit of accessing a smaller settlement sum now rather than having a potentially larger sum some time in the unknown future.

Being aware of, understanding and responding to the emotional elements of a claim and devising a strategy that will address the perceived loss and gains of your opponent will be key to a successful negotiation.  

Stage 3 – Negotiate an Agreement

If stages one and two are completed well, implementing this stage at the mediation should be relatively simple.  It usually consists of counter offers until both parties are within their “settlement range” and settlement usually occurs.

Sometimes the parties reach an impasse and it seems that successful negotiations won’t be possible.  This is when it’s important to bring your client back to what they wanted to achieve and what their risks are.  You can help them to consider how the offer on the table compares to their best alternative to a negotiated agreement, take a break to reassess or move on to another issue to get conversations restarted.

Finally, use your mediator to assist throughout the process.  A good mediator will develop a rapport with the parties and gain their trust which will allow a shift in perspective towards compromise. If you would like to discuss the skills and approach that I bring to a mediation, please contact me on 0412 048 456 or by email on jsomerville@r3resolutions.com.au.