I have recently appeared at about half a dozen mediations for a liquidator regarding very similar preference claims over a period of two months. It was interesting to see how some strategies employed by us and the other parties worked. Some tips coming out of the process:
- When booking the mediation, be dubious when the other side wants a half day mediation. It is extremely rare for a mediation to be done before lunch where the case has any significant value.
- Prepare a mediation position paper with the client’s input, even if one is not required or exchanged, for use as speaking notes for the open session. Focus on just a few key issues that make a real difference to the outcome of the case and try to put the arguments about those issues in plain language that can be understood by the decision-making clients on the other side of the table. There is nothing less effective than a dry recitation of the pleaded issues in legal language.
- If an opponent suggests that an open session can be skipped to save time, resist: you will find that you have to tell the mediator about your position anyway and some of your message will be lost in the retelling.
- In the open session, without completely ignoring your opponent lawyer, you should mainly address the clients on the other side of the table.
- It is not unusual for round table discussions to become expansive. Clients can feel the urge to say perhaps more than they ought to, particularly about issues of fact or their (mis)understanding of some legal point. You can use these situations to your advantage by dealing with the point in issue when addressing those clients in the open session.
- Introducing new issues at a mediation can be a very effective way of putting a party off-balance. But be prepared for the other side to discount the new issue on the grounds they have had no notice of it.
- Know the financial stakes if you don’t settle. It surprised me that in a number of cases the defendant attended without calculating their exposure to costs and interest at the mediation date, or their potential liability at trial if they lost.
- Try not to let parties get away with claiming they do not have authority to go over a certain figure to settle: it is usually nothing more than a brazen negotiating tactic. You will usually hear this line at about 4:45 pm when the parties are losing steam. It is easy to give ground, in order to achieve a deal on the day. Don’t do it!
- Even if the attendees do not have proper authority as a matter of fact, the party is usually in breach of the terms of the mediation agreement by reason of it, and if the matter cannot settle the other party is well within their rights to threaten to abandon the mediation and seek indemnity costs of attending. The appropriate response is to point those matters out, and tell the other side to get on the phone to get the necessary authority.
- Have terms of settlement drawn up in advance of the mediation and have a laptop handy on which they can be edited. Time saving at least one hour, which could make the difference between getting out at a reasonable hour or not.