Preparing for Mediation as Legal Counsel
This bulletin provides general information concerning mediation of disputes. For additional information that is specific to mediation of family disputes, you should also see the bulletin called Family Mediation.
As counsel for a party to a civil (non-family) mediation, your preparation will typically ( although not universally) involve the following steps.
Prepare a summary report
Most mediators want to receive, at least one week before the mediation starts, a point-form, summary description of:
- the facts or circumstances that have led to the dispute;
- the issues in dispute;
- your assessment of the matter; and
- the history of court proceedings and negotiations between the parties, including proposals for settlement.
The report should be a brief, objective narrative of relevant facts — an informational document rather than an advocacy document.
Early information-sharing
In mediation, the exchange of information is informal, as opposed to there being a formal discovery or service requirement. However, it is important to have an information exchange process and, in some cases, it may be appropriate to outline the process in the agreement to mediate. Summary reports, important documents and relevant information should be exchanged with other parties as far as possible in advance of the mediation.
Prepare your client
Bear in mind that mediation is focussed on the needs and interests of clients, not their legal rights. Therefore, clients are encouraged by the mediator to participate directly and actively in the mediation session. This is the client’s opportunity to feel heard and to directly listen to the other side. Make sure you and your client understand your client's goals and interests, outside of the legal claims. Speculate on what the interests of other parties might be and consider scenarios or options that might satisfy those interests. Unlike the restrictions of a courtroom, mediation is an opportunity for more creative problem-solving.
Ensure the person attending the session:
- knows the facts and is conversant with the case and the issues;
- is prepared to make a brief informal opening statement;
- has authority to settle the dispute;
- knows what to expect; and
- knows the costs, risks and benefits of not settling the dispute.
Confirm the date, time and location of the mediation with your client. Consider who else might, with the consent of other parties, attend the mediation. Always ask “who needs to be at the table?” and “who can make or break this deal?” Occasionally, for example, the presence of a neutral expert might help the negotiations.
Prepare your case
Mediation is not an adversarial procedure; it is a solution-oriented negotiation that presents a great opportunity to resolve your case. You will be in the best position to try to settle your case wisely to the extent that you have analyzed its strengths and weaknesses, both on the facts and on the law.
Tips
- Mediation styles differ. The selection of a mediator is of critical importance. Ask about the mediator’s training and experience. What else have they mediated? Ask prospective mediators for references.
- Work with the other side. Try to see their case and their interests. Treat them as partners in problem-solving. The goal is not to prevail, but to solve a problem.
- Recognition and acknowledgment are very powerful settlement tools. Much litigation is fueled by an individual’s sense of being wronged and the need for formal acknowledgment of that wrong. You can acknowledge someone else’s point of view without compromising yours. Often, just listening in a genuinely open manner is sufficient. However, expressing recognition only works if the recognition is genuine.
- The mediation process is flexible — shape the process to suit the issues.
- Keep at it. Keep working as long as the mediator thinks there is hope.
For More Information
For more information contact the Dispute Resolution Office.
Mediators
For names of mediators in your area, contact the Mediate BC Society or check the telephone book for mediator service providers and mediation organizations.
