Over February and March I have been running training seminars on getting the most out of a mediation. Most people agree that mediation is an effective form of alternative dispute resolution that often leads to settlement on the day, or shortly thereafter. However, when talking about frustrations in preparing for mediation a few common themes emerged:

1. Lengthy debates over the content of the mediation bundle – you know how this one plays out – a week or so before the mediation one party suggests an index for the mediation bundle and then a flurry of emails follow debating over whether certain documents produced under subpoena should be included in the bundle. Days pass, more costs are incurred and then, either one party begrudgingly agrees for a document not to be included (and is then primed to fight harder for something in return) or the parties agree to include everything and the mediator’s bundle is voluminous and akin to a brief to counsel. I have previously written about why the mediation is more important than you may think, however its purpose is not to convince the mediator that one parties version of events should be accepted. Mediators are not triers of fact – they should not proffer any opinion on whose version of events will be accepted. The mediation bundle serves the important purpose of giving the mediator a general understanding of the nature of the dispute and the underlying interests of the parties. So don’t waste the time and money debating over the small stuff – limit the bundle to the key documents: the pleadings (or complaint), served liability and quantum evidence and evidentiary statements are usually sufficient.

2. Late service of evidence – It’s not uncommon for new liability or quantum evidence to be served on the eve of (or during) the mediation. Sometimes it’s unavoidable, sometimes it’s not – however the consequences of late service can be significant. All parties attending the mediation must have authority to reach a settlement on the day. If one of the parties is a corporation or insured the person attending the mediation will most likely have a limited settlement authority. The limit of that authority is based upon an evaluation of the case that has taken place some time prior to the mediation. Therefore, it is essential that parties are provided with all relevant evidence and particulars well before the mediation. There is little point in withholding evidence or information (intentionally or otherwise). Think of it as a pie – the representative will come to the mediation with a certain sized pie based upon the assessment made prior to the mediation – serving evidence or information on the eve of, or during the mediation, won’t make the pie bigger, at best a phone call may get a bit of sauce on top. Further, not only does the limit of authority often present an insurmountable barrier to resolution, you are making the mediator’s job that little bit harder. Late service of evidence often alienates and antagonises the opposing party – thereby widening the gap between the parties and creating more barriers for the mediator to break down to move the parties into the zone of negotiation.

3.  Delays in the parties serving position papers and schedules of damages – Delays in the service of the position paper and schedules of damages can cause the same problem as the late service of evidence. That is, parties advise their clients on strategy and settlement options well before the mediation day. If the position paper or schedule contains something new (evidence or legal argument) the parties may simply not have the time to thoroughly consider and advise on a change in strategy or settlement options.  Back in the day, Sir Laurence Street ordered position papers and schedules of damages to be served several weeks prior to the mediation. Unfortunately that practice seems to have gone by the wayside. It’s my practice to suggest that the claimant’s position paper be served 5 business days, and the respondent’s 2 business days, prior to the mediation- compliance with that suggestion is mixed.  If you want to maximise the chances of a resolution being reached at mediation it is in your client’s best interests to ensure that all liability and quantum evidence and arguments are clearly articulated well before the mediation.  I have certainly been involved in several mediations that are terminated when a private health insurer payback (often for many tens of thousands of dollars) is presented for the first time during the mediation.

4. Tone of the position paper – several people mentioned during the seminars that the tone and content of the position paper was so inflammatory that their clients were offended and  went into the mediation with a very fixed positional mindset. While some lawyers do not provide a copy of the position paper to their clients, many do. Therefore it is important to be conscious of the content and tone of the paper. A position paper is not akin to a final submission or a comprehensive advice on liability and evidence. It should be prepared with the goal of the mediation in mind – that is, to end the dispute. Most mediators prefer a concise position paper that, in a clear and non inflammatory manner, outlines the factual and legal issues in dispute, a parties position in relation to those issues (and the grounds upon which the Court would be asked to find in your client’s favour), if there are obvious challenges to a parties position, why that party does not consider them fatal, and concludes with a reassurance that your client accepts that a compromise will need to be reached. As an aside, if the matter involves significant trauma to one of the parties, attempt to minimise the extent to which the position paper retraumatises that party; for example, state you reply upon the opinion expressed at page X of expert Y’s report rather than repeating that opinion.

So, when preparing for your next mediation, avoiding these common grievances may go a long way towards maximising the chances of the claim settling at mediation.

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