It contains gems of information for the well prepared mediator: providing insight on the potential psychological factors at play and enabling the mediator to get a head start on creating the right environment for resolution
1. Identify potential roadblocks – often the parties statements or expert reports contain information that is a red flag for a mediator – an area to avoid if possible. I was recently mediating a historical institutional abuse case which had already been to a failed mediation, with devastating effects of the survivor. After several years, and the commencement of proceedings, a further mediation was scheduled. The bundle contained old statements and treaters records. Those documents contained a significant detail – that the survivor’s nightmares about the abuse always commenced the same way … in black and white. The survivor relayed that if a dream commenced with alot of characters wearing black and white, or the scenery being in black and white, it was going to be a bad one . In a preliminary phone call with the legal representatives I drew this entry to their attention and suggested that avoiding wearing black and white clothing may assist in avoiding a trigger for the survivor. All legal representatives indicated that they had not considered the issue and were grateful for the suggestion.
2.Identify potential enablers – the mediation bundle provides a snapshot of the dispute, whereas the legal representatives have usually been working on the matter for sometime, reviewing a lot of information over an extended period. This deeper level of understanding is important, but sometimes it can mean some details slip through the cracks. A fresh set of eyes may identify such details. A recent medical negligence case I mediated involved complex expert evidence on the cause of certain ophthalmic symptoms.The defendant’s expert mentioned in a report provided some years ago that there were clinical trials on foot for treatment of these conditions, the plaintiff expressed interest in that trial. The expert had, correctly, informed the plaintiff that that was something the plaintiff should discuss with their treating doctor. It appeared from the treating doctor’s notes that the clinical trials may not have been discussed. Again, in a preliminary discussion with the parties, I asked whether the clinical trials had concluded. It turned out that the plaintiff had not been provided information about the clinical trials at all. Published information relating to the clinical trial was provided to the plaintiff at the mediation – kicking off the mediation with a very positive tone.
3. Turning the legal representative’s mind to the keys issues in dispute – most mediators request that the mediation bundle be provided well in advance of the mediation. For the most part that is not because the mediator needs days or weeks to read the material. Rather, it forces the legal representatives to start preparing for the matter sooner rather than later. For plaintiffs’ lawyers that should include providing an advice on the strengths and weaknesses of the plaintiff’s case and a range of damages. For many plaintiffs the mediation is a big day, akin to their day in court. Anxiety and apprehension increases as the day approaches and providing them with a large amount of information to digest the day or so before, or worse still the morning of, the mediation may be too much. For defendants, particularly those with insurance, there is the need to ensure that matters are reserved properly and adequate settlement authority obtained. Serving new evidence, or presenting a schedule of damages with new (or increased) heads of damage on the eve of a mediation may mean that the defendant’s lawyer simply will not be able to obtain the level of instructions needed for the mediation to have prospects of success. 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.
So, when preparing for your next mediation – keep these 3 factors in mind and do not underestimate the importance of the mediation bundle.
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