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Getting the best out of mediation.
Thoughts for lawyers.

Getting the best from a mediation

The following advice for lawyers has been put together by experienced mediators, many of whom are experienced litigators.

If you have power over the choice of mediator, don't limit yourself to names only known by your colleagues. Even if the specialism required is the same, their character and style could be different to your client's needs.

Understanding the mediator's role and the mediation process is also crucial. The mediator is there not to pass judgement but to facilitate the clients reaching a mutually acceptable commercial solution. The mediation itself provides the best opportunity for the direct negotiation of deals and the quick resolution of otherwise time-consuming and expensive disputes.

WHAT LAWYERS NEED TO KNOW AND DO BEFORE
ENTERING THE MEDIATION PROCESS:

  • Understand the mediation process is different to any legal process.

  • Appreciate that the lawyer plays a different role – moving away from one of advocate and controller towards one of adviser and supporter, allowing their client to be in control.

  • Provide advice in the context of a commercial negotiation and not dominate the process with legal issues, albeit reassessing the client's legal position throughout the mediation.

  • Understand the dynamics within their team, particularly the pressures and problems for experts and consultants, and keep them focused on achieving a commercial settlement.

  • Accept that asserting or defending a client's best case may not produce the best commercial solution for that client.

  • Agree tactics for the mediation but be reactive and flexible to developments during the mediation; a prior risk analysis may need adjustment in the light of developments during the mediation.

  • Use the mediator's neutrality to test out each side's case.
    Be pro-active by offering suggestions to the mediator, meeting with the other lawyers and testing alternative solutions.

  • Have a strategy for using waiting time in the mediation usefully and creatively, reassessing risk analyses or testing alternative solutions.

  • For claims up to a value of £100k with no more than two parties, a half or full day (of no more than seven hours) mediation is £450 + VAT per party. This includes an administration fee.

  • For claims with a value of between £100k and £250k with no more than two parties, a full day (of no more than eight hours) mediation is £1,150.00 + VAT per party. This includes an administration fee.

  • Fee for claims with a value of between £250k and £500k, a full day (of no more than eight hours) mediation is £1,300.00 + VAT per party. This includes an administration fee.

  • Claims of over £500k will not normally fall into the fixed fee category. We can organise a bespoke quotation.

  • Mediations are offered on a half or full day rate and depend largely upon the monetary value of the claim. If more than one day is required, it may be possible to offer a reduced fee for the second and subsequent day.

  • The mediation day normally starts at 9.00am and ends at 1.00pm for a half day case or 5.00pm for a full day case. This can be subject to some adjustment to suit the parties, but a half day will be four hours and a full day will be eight hours. If the claim is than £100k, a full day is seven hours.

  • The fee includes up to two hours preparation time for claims of under £100k and four hours preparation time for claims of £100k - £250k. If the volume of papers or complexity justifies an additional preparation fee, we will agree this with you in advance.

  • Room hire is not included for face to face mediations. If one or more of the parties have appointed legal representatives, the mediation will often take place at one of the lawyer’s offices. We can arrange offices and catering (if required) near to the preferred location of the mediation, but this will be at an extra cost, to be included in the quotation.

  • If the parties are legally represented, they will often meet at their lawyer’s offices to join the online meeting. Sometimes, the parties can join their lawyer from a different location and the mediator will provide separate online breakout rooms where the respective parties can discuss issues with their lawyer in private. If one or more of the parties are not legally represented, they can join an online meeting from home or their own offices etc. However, provision should be made for privacy and good communications to ensure suitable engagement with the process. See the separate section on - getting the best from the mediation.

  • The full terms and conditions for a fixed fee mediation will be sent once we have the necessary information to produce the quotation.

  • If the mediation is face-to-face and is within a reasonable distance of the mediator, the travel costs will be included in the fixed fee. If the parties chose a mediator located at quite a distance from the mediation venue (perhaps because the mediator has a particular specialism not readily available from more local mediators), travel expenses will feature in the quotation. This may include hotel expenses and subsistence if the mediation is set for more than one day.

  • Unless the information is very limited, we ask for sight of papers and any opening position statements no later than seven working days prior to the mediation. This will give the mediator sufficient time to prepare. If papers are served inside the seven days or at the mediation itself, we will do our best to incorporate them. However, we cannot guarantee their inclusion in the process, especially if they are of a substantial volume.

  • If the parties and mediator are available, any extra days can follow immediately after the planned day(s), assuming all parties can make payment for the extra day(s) on account. If not, additional days will simply be fixed for a date convenient to all parties and payment can be made in the meantime.