At the heart of mediation is an emphasis on the intentions and needs of the disputants, unlike in litigation where the focus naturally moves to legal rights and obligations. Jane Player, a London partner in King & Spalding’s disputes group remarks: “People often prepare for mediation as if it were litigation and they exchange submissions which are little more than pleadings. In reality, it is better to ask them to submit a short document on their view of the commercial aspects of the deal and what they are most upset about, and what they are keen to resolve. It is not a formal legal document and this often takes a lawyer out of their comfort zone but, if drafted well, can stimulate a creative resolution conversation.”

She adds: “Don’t come along to a mediation with a lawyer who bashes the table and shouts about historical wrongs done to his client. Instead, bring a lawyer who knows the law is just one factor of this dispute and a Principal in the business who can explain the commercial issues at stake and what might provide an acceptable solution.”

A successful mediation requires detailed preparation. Unlike in court proceedings where the barrister or counsel might buy time through skilled advocacy and sheer intellect, the same cannot be said for mediation proceedings.

Alexander Oddy, a partner in the disputes division at Herbert Smith Freehills says that preparation is imperative because the proceedings are designed to be short and to reach a quick resolution. ‘Almost all of the important work takes place in the days, weeks or months before the mediation. What you say or do on the day can be quite constrained by comparison,’ he explains.

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Tags: legal document, mediation proceedings