Save the date - A pre-mediation process by Anita Crozier

In the world of disputes, it is not uncommon for parties to find themselves so entrenched in their own positions that it is actually blocking any chance of reaching a resolution. Yes, they could embark on a formal dispute resolution process such as court, arbitration, or adjudication but not everyone wants “their day in court”. As such, agreeing and fixing a mediation date may be a sensible way forward and gives the parties comfort that both sides are committed to try to resolve the dispute despite their divergent positions.

However, as the mediation date draws closer, despite all the toing and froing of position papers and requests for information etc, it may be that the dispute is just not quite ready for mediation...yet! Yes, the mediation date could be postponed but in that time would further exchanges of positions, requests for information and posturing really take the dispute forward and break the stalemate?

What we have seen in practice lately, with some success, is where parties acknowledge that the dispute is not quite ready for mediation but instead of cancelling/postponing the mediation date, using the date as part of a pre-mediation process in an attempt to break the stalemate and help guide the parties towards what they both need to do in order to get some traction towards a resolution.

The pre-mediation day is like a mediation in that all parties turn up and have a “facilitated discussion” in the presence of the mediator, however, there is not going to be a resolution per se reached (that day).  Instead, there will be outcomes and actions that the parties need to commit to as stepping stones towards getting their respective cases in order and narrowing the issues in dispute ready for when the mediation day itself arrives.

There will be an agreed agenda for the pre-mediation day which will likely feature discussion on the most contentious issues.  Crucially, on the day, each party will have the opportunity to “air its view” in respect of each issue while the other side together with the mediator listens. There is no need for parties to go into the granular detail of what the respective positions are but instead headline details as to why there is a problem which is say stopping them moving forward with an assessment of a claim.  

Having heard parties’ positions, the role of the mediator is not to resolve the overarching issue but instead, by aiding creative thinking on how things could perhaps be done differently and by encouraging a collaborative solution, help facilitate a way forward.  In simple terms, the mediator is simply encouraging the parties to re-set.

The mediator generally records the outcomes/actions from the pre mediation day and the parties commit to actioning items by a set deadline to ensure that by the time the mediation day itself comes along the parties are in the best possible position to have a constructive mediation.

Of course, such discussions could take place without a mediator. However, from experience, the presence and neutrality of the mediator; the skills that a mediator brings, such as ensuring everyone feels heard without the room descending into chaos; and, having as an outcome an agreed route map that everyone has bought into, generally leaves parties feeling that, there has been progress made; there is a clear pathway towards finding a resolution; and, parties are in the best position to fight their corner, on matters truly in contention, on mediation day.

Anita Crozier is an Associate at international law firm CMS