CONFLICT RESOLUTION: MEDIATION, MENTORING & COACHING

Finding Resolution, One Hump at a Time.

Mediation Bundle &
Mediation Statements

For Best Results:

Less is More.
Prepare early.
Cover your needs and interests

And most importantly:

Appreciate a bundle's limitations over the power of a super-productive chat.

Mediation Bundle

Mediation Bundles can be important but it's amazing how little they are referred to on the day itself.

It's rare for 50+ pages to be considered in a full day's mediation. All involved already know the paperwork.

Often less is more. Many documents are not key documents. Much of those just need to be accessible if they turn out to be relevant, but not in the bundle.

For contentious probate the key documents are usually:

Estate accounts, witness statements, valuations etc.

For business conflict the key documents are usually:

any shareholders agreements, job descriptions, witness statements, company procedures etc.

Bundles of less than 100 pages are encouraging because it suggests the participants are already narrowing the issues and focusing on what's important. Often bundles are more than 100 pages because the participants are so far apart they can't even agree on what should go in.

If your bundle will be bulky, I need to receive it more than 7 days in advance to give it the attention the participants must believe it deserves. I cannot promise to read every single page in a bundle 150+ pages and may need to discuss a supplemental fee if you expect me to read a very dense bundle of 250+ pages.

Mediation bundles are Without Prejudice. No document within the bundle can be referred to at any later Court proceedings (subject to the general rules of disclosure).

Mediation Steps

Amazing Mediation Bundles

These are tips, not instructions. It's your mediation bundle. There's no right or wrong way.

Electronic & Paginated

Remember the ticking clock of mediation and prep time for all.
Electronic and bookmarked bundles are easier for all to navigate, especially if we're working remotely.
If you are sending a paper bundle, allow ample time for delivery.

Valuations & Accounts

Keep the 'number documents' and any valuations separate for easy access.
Are they up-to-date?
Have the parties agreed in principle to the figure on valuations? If not, will it be a sticking point for settlement? How will you deal with that? Another valuation?
Are receipts available if any item's value is in dispute?

Offers
(Open & WP)

Keep these separate in a section of the bundle for easy access.
Offers concentrate the minds, should be easy to access.
Much mediation conversation focuses on why an offer wasn't accepted and what sort of offer would be.
Offers with cost consequences can help promote conversations on risks and perceived risks.

Drafts for Settlement

Tick, tock, tick, tock. If you want a binding settlement at mediation, you need a signed agreement. Obvious, yes. But not everyone comes prepared.
Try to agree the mechanics of settlement as far as possible beforehand.
A suggested / agreed draft precedent in an electronic bundle makes for a much nicer day.

Mediation Statement

It’s customary for the participants to serve a Mediation Statement upon the mediator - and usually each other - around 7 days prior.

Lawyers tend to call these ‘Position Statements’, many mediators now prefer ‘Mediation Statement’ since it sounds less arms-fold-y and fight-y. Mediation is about finding underlying needs and interests and seeing if they can be met. Maybe not 100%, but enough.

A Mediation Statement might sound fancy, but it's just a document setting out how you see the dispute, picking up on the points you think best illustrate why you see things this way.

This document isn’t a court pleading and the best Mediation Statements are not drafted as if they are. What’s the point of that? We’re not in Court. I am not a judge. Everyone knows – or should know – the facts so it’s a wasted opportunity to rehearse what is already known, or try to conduct mediation as some quasi-court process. Mediation is conversation where everyone has an equal voice and we're on a time budget and need to use our time productively.

My fees are based upon a participants mediation statement being <10 pages. My fees do not increase for 10+ pages, but please try to be economical. You have more chance of winning over the other side when you are succinct.

Please don't try to argue how you have a perfect case. There is no perfect case.

Psychologically and physiologically two people can both be right. We’re human and none of us see things (even colours) in identical ways.

That’s why a court only applies a balance of probabilities test to civil matters. It’s why Counsel tends to give your percentage odds as around 75% when your case is very strong, and why opinions from legal advisors can vary and judge's decisions can surprise and be overturned.

Does it matter in convincing the other side of the merits of your case? Probably not. Might you prefer to spend the time on a shorter Mediation Statement and use the saved time reviewing and ensuring you can convince yourself that a failed mediation is worth the gamble and then plan accordingly?

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Amazing Mediation Statements

These are tips, not instructions. It's your mediation statement. There's no right or wrong way.

Ideal
Timing

Preparation of a mediation statement well in advance allows breathing time to notice what might be missing or opportunity to discussion prior to the big day.

Ideal
Length

The best of the best are 6-10 pages.
Do you need that quote from pleadings or correspondence? Or can you just page and paragraph reference from the document in the mediation bundle.
The statement should not be about proving who is wrong or who is right by offering ‘proof’ from documents. Save that for court.

Ideal
Inclusions

What you want.
What you won’t compromise on.
What you might compromise on.
Concentration on issues, wants, needs, costs and offers, not the past.
Empathy and acknowledgment goes a long way. Family and business conflict is usually deep-rooted. Compassion is strength, not weakness.

Ideal
Exclusions

Case law is rarely necessary. It usually takes a back seat and mediation is not court.
Disparaging comments should be avoided. That goes for bluffs and strutting too. Choose comments that might help, not hinder.
Everyone is coming to mediation to do their best with the tools they have.