Experienced commercial litigator Giselle Williams of Gorvins Solicitors
The level of preparation for mediation significantly affects the prospects of a settlement being reached at the mediation itself. In my continuing series of guest writers on the site I asked an experienced commercial solicitor to write about the preparations she makes for mediation and her expectations of the mediator. Next week I will write about my expectations of the parties.
I am very pleased to have Giselle Williams of Gorvins Solicitors writing about her typical mediation preparation. Giselle is a commercial litigator with over 15 years experience. She deals mainly with contractual disputes but also with insolvency and construction matters. Giselle writes:
Mediation – What’s all that about? Are the papers the same that you need for court? Will somebody tell me what they want and what to prepare? Will someone tell me what to do on the day and then just sort the matter out for me! Well the simple answer is “no they won’t” but it is a very simplistic procedure that, while it does require an amount of preparation it does not require anywhere near the preparation for a court hearing.
The parties have to prepare their own statement of case which is usually no longer than a page and submit it with some supporting documents. That doesn’t mean every document you have ever had in the case – it means a selected few. Mediators don’t need to see every single piece of paper just a few important ones.
When parties agree to go to mediation (and they have to agree) I usually expect a degree of assistance from the mediator. In the mediations that I have dealt with I have always liaised with the mediator well before the actual mediation and have almost agreed directions with him for how we will proceed pre-mediation.
I usually do the following:-
1. Agree a date for exchange of statements of case between the parties copying the mediator in of course.
2. Copy the necessary documents to the other side and the mediator.
3. I try not to drown the mediator in documents which only makes his preparation longer and more difficult.
4. I ensure that the fees have been paid upfront so there are no surprises on the day.
5. I review the draft mediation agreement in order that I am happy with it before we sign on the day.
6. I liaise with the mediator following the submission of documents to him to see if he requires anything else.
I expect from the mediator that he will read the documents he has been sent but not get too involved in the detail. I expect him to be up to speed with the goings on so far and with whom the parties are and for him to have prepared his strategy going forward. I would expect him to explain his strategy to me on the day of the mediation if not before. I would expect him to be open and honest and if he wished to share his view with me to do so.
I consider the real skill of the mediator is not becoming involved in the detail but simply trying to make the parties take an objective look at where they are and what they would like to do to settle the dispute. That doesn’t require the mediator to be a lawyer, an accountant or any other professional. It requires a commercially minded individual with experience.
I have only had one mediation that has failed and the difficulty with that mediation was that the other party had too many expectations from the mediator himself i.e. he would have liked him to have given him his view on the case as to whether it should settle. Secondly the other party came with an agenda that we knew nothing about so the mediator and ourselves were in a difficult position. I was very disappointed when it failed as that left litigation which was going to be expensive and unpleasant for all parties.
Many thanks to Giselle. If you have any comments on this article please submit them below. Giselle makes an interesting point about the mediator not having to be a lawyer and that will be the subject of a forthcoming article from an experienced non-lawyer mediator responding to comments made by Lord Jackson in his recent report.
If you would like to write a guest blog for this site then drop me an email or give me a call.
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