June 2000

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 commercial mediators and mediation service providers 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
• the history of court proceedings and negotiations between the parties, including proposals for settlement.

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. Cases settle when lawyers are prepared, and lawyers can't prepare without full information.

Prepare your client

Determine who will attend the mediation and prepare that person. Bear in mind that clients often participate directly and actively in mediated negotiations. Make sure you and your client understand your client's goals and interests, not just the legal claims. Speculate on what the interests of other parties might be, and consider scenarios or options that might satisfy those interests.

Ensure that the person attending:

• knows the facts and is conversant with the case and the issues
• is prepared to make an opening statement
• has authority to settle the dispute
• knows what to expect
• knows the costs, risks and benefits of not settling the dispute.

Prepare your case

Mediation is not an adversarial procedure; it is a solution-oriented negotiation. Its focus is on solving a common problem, not on one side prevailing over the other. 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 has he or she 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.
• Use advocacy aids. Prepare exhibits and other materials to demonstrate the strengths of your case.
• 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 on any of the programs described in this bulletin, contact:

Dispute Resolution Office
Ministry of Attorney General
PO Box 9222, Stn Prov Govt
Victoria, BC V8W 9J1
Tel: 250 356-8147
Fax: 250 387-1189
E-mail: AG.DRO.Victoria@gov.bc.ca
Web site: www.ag.gov.bc.ca/dro

Enquiry BC will forward long distance calls at no charge:

• in Vancouver, call 660-2421
  
• in Victoria, call 387-6121
  
• elsewhere in B.C., call 1-800-663-7867.When you call, ask to be connected to the Dispute Resolution Office, Ministry of Attorney General.

Mediators

For names of mediators in your area, contact the British Columbia Mediator Roster Society, or check the telephone book for mediator service providers and mediation organizations. The British Columbia Mediator Roster Society can be contacted through the Dispute Resolution Office at the numbers listed on this page, or by e-mail at: mediators@mediator-roster.bc.ca

Or visit the society's Web site at: www.mediator-roster.bc.ca

June 2000
AG00041^FS11