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How to Prepare for a Mediation

Posted by M. Margaret Gonsalves-Sabola | Aug 02, 2017 | 0 Comments

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If you are about to participate in the mediation of a dispute, there are a few preparatory steps that you should take beforehand. Consider the nature of your dispute, evidence supporting your claims, financial loss you have incurred, the other party's perspective on the dispute, and your bottom line. Think about the origins of your dispute and its history.

The nature of your dispute may affect how the mediation process begins and which mediator you choose. If you have already filed a court action or had one filed against you, the court may stay the action temporarily to allow the parties to proceed to mediation. On the other hand, you may have a contract that requires arbitration or mediation of all disputes arising under it, and specifies a mediator or mediation rules. Today, many people choose mediation over litigation, even where there is no contractual requirement for mediation, because they want to avoid the cost and trouble of court proceedings. If this is the case for you, you have a lot of leeway to choose an appropriate mediator for the area(s) of law under which your dispute arises.

Once you have chosen a mediator and a time and place for the mediation, prepare by assembling the evidence and law that support your claims to present to the mediator. Many mediators, especially in more complex disputes, require the parties to submit mediation briefs in advance of the mediation date. These briefs generally summarize the case and settlement efforts so far, explain legal claims, and list any financial loss incurred or reasons why no loss was incurred.

If your mediator does not require you to submit a mediation brief, it is an excellent idea to assemble in advance the same information that would be part of such a brief. Doing so will enable you to present a coherent, comprehensive view of your side of the dispute to the mediator. It also gives the mediator valuable information that she could share with the other party in the course of the mediation (or keep confidential, if you so specify).

Understanding both your perspective and the other party's perspective on the dispute prior to the mediation can be key to reaching an agreement. You may wish to agree to exchange documents regarding the dispute beforehand, you may discuss the facts with the other party, or you may use some other method to gain insight into their perspective. However you choose, work to anticipate their arguments and develop evidence (such as witness statements or documents) to rebut them.

Further, you should determine your bottom line in negotiations before you enter the mediation room. Have there been monetary offers for settlement exchanged in the past? Do you anticipate that costs will greatly increase during litigation due to use of experts or expensive discovery? Can some of your claims or the other party's claims be steeply discounted or removed altogether from the list of amounts claimed because there is little or no credible evidence to support them? All of these considerations and more should inform your bottom line, meaning the very lowest offer you would accept to settle the case. You should consider whether you will share your bottom line with the mediator (who must keep it confidential unless you agree otherwise) or with the other party.

To find out more about mediating your dispute, visit Gonsalves-Sabola Chambers online or call the office at +1 242 326 6400.

About the Author

M. Margaret Gonsalves-Sabola

M. Margaret Gonsalves-Sabola is a civil and commercial litigation attorney and an accredited civil and commercial mediator. Margaret has over 21 years' experience in legal practice in the United Kingdom, Jamaica and The Bahamas.

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