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Mediation is a form of alternative dispute resolution which gives the parties the opportunity to enter into without prejudice, privileged negotiations with the intention of settling their dispute outside of court. For a more in-depth explanation of what a mediation is and its benefits, please see William Coon’s article here.
Most contentious teams at the firm will engage in mediation when it is appropriate and in the client’s best interests to do so. Therefore, depending on the cases at the time, you may be asked to go along to a mediation at some point during your training contract.
I have been lucky enough to have attended two mediations so far in my training contract. The aim of this trainee blog is to provide some top tips for attending a mediation as a trainee as well as some general guidance as to what to expect before, during and after the mediation so that you can get the most out of the experience.
Before mediation
As soon as you know that you will be attending a mediation, it is important to find out as much information about the day as possible. For instance, will it be virtual or in person?
In person mediations tend to be held in the most convenient place for the parties. As a firm with national clients, this may, therefore, involve travelling around the country.
Both of the mediations that I have attended have been in person, but mediations are sometimes (and increasingly frequently) held virtually.
Find out who will be in attendance from both sides, including whether counsel has been appointed.
In the run up to mediations, there will be a lot of preparation work. You should manage your workload and prioritise so that you can assist the team to become best prepared for attending the mediation.
Work in the run up to mediation may include:
- Meetings with clients to discuss strategy and what they should expect on the day (a great opportunity for you to take a note and learn!);
- Conferences with counsel, if they are instructed;
- Preparation of mediation bundles, position statements (a written statement for the mediator to read in advance of the mediation that introduces the dispute and outlines the party’s position) and other relevant documents/schedules;
- Preparing an update on legal costs;
- Corresponding with all parties and the mediator.
My top tips for mediation preparation:
- Create a ‘Crib’ sheet of the dispute ahead of the day. Whether you are familiar with the case or not, this will help you have to hand all the significant details. I would suggest making a note of who the parties are, the issues in dispute, any previous offers made between the parties and the potential settlement bracket that has been agreed with the client ahead of the mediation.
- When attending pre-mediation client meetings or conferences with counsel, take in as much information as possible about the client’s motivations and concerns, the strengths and weaknesses of our position and our strategy for the day itself. I have personally found these meetings incredibly insightful in terms of learning about strategy and the psychology of a mediation.
- Make sure you have all the relevant documents (whether that is the contract, Will, correspondence, etc) to hand and that you know your way around the matter file so that you could quickly pull up any relevant document for the team to review on the day.
- Finally, prepare for attending the day itself. Mediations can last for many hours; it is not unheard of for mediations to last into the early hours of the morning if both sides are narrowing down on settlement terms, for instance. It is paramount to come prepared with water and snacks (some will usually be provided), as well as charging equipment for your laptop and plenty of pens and paper to take notes. A calculator could also be helpful when working out complicated settlement sums.
- Finally, it goes without saying that mediations are formal occasions, and you should dress appropriately and remain professional throughout.
During the day
The day itself may involve travelling, so make sure you leave plenty of time to arrive.
During a mediation, a trainee will usually observe, take an attendance note and assist with any manner of tasks that arise during the day.
My top tips during a mediation are:
- Be flexible and proactive. Queries may arise that require you to find and circulate documents or research complicated points of law. In one mediation that I attended, a tax query arose late in the day while reaching a settlement. The answer to the query would significantly impact the terms on which the parties were willing to agree. I was able to assist the team by conducting research to find an acceptable solution.
- A verbatim note is not always necessary; it is usually best to capture the most pertinent points of advice, concerns of the client and, in particular, the terms of any offer and counteroffer made during the day. This allows you to be present in the (physical or virtual) room, to take in the experience and connect with the clients.
- Keep an eye on the time. Make a note of the time whenever the mediator enters and leaves the room, when any offers are made and at any other key points in the day. This will likely be referred to at a later date and so it is important that you accurately keep a record of the time throughout the day.
After the mediation
The work involved after a mediation will depend on the overall outcome of the day. If a matter settles it is always the aim to have a settlement agreement signed before leaving mediation. If, however, an agreement is not finalised and signed, this will take priority over the following few days.
Alternatively, if the mediation is ‘unsuccessful’, there may be followed up discussions with the client, and consideration may be given to a without prejudice offer letter being drafted.
I would advise that as well as being well prepared, it is equally important to be flexible and adaptive following a mediation. As an example, after a mediation that did not result in settlement, you might need to react very swiftly to issue a claim, due to an approaching limitation period.
Overall, attending mediations is certainly a test of your organisation skills and stamina. They are also fantastic opportunities to learn about strategy and negotiation tips from senior lawyers, partners and counsel and to make true connections with clients.
To find out more about other exciting opportunities available to you during a training contract at Michelmores, read more on our Trainee Blog.
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