The Role and Conduct of Mediation in Complex Commercial Litigation R J Douglas SC

Is the case worth mediating?

What are the alternative measures to mediation? What are the alternative measures to mediation?

When ought parties mediate a dispute? When ought parties mediate a dispute?

What ought the court: What ought the court:  order in advance of mediation?  expect in consequence of unsuccessful mediation?

What ought be the appointed duration? What ought be the appointed duration?

Who ought be the mediator? Who ought be the mediator?

Ought anything be exchanged before the mediation? Ought anything be exchanged before the mediation?

What preparation is required for the mediation? What preparation is required for the mediation?

How ought offers be made? How ought offers be made?

Who ought attend the mediation? Who ought attend the mediation?

What of Confidential Discussions with the Mediator? What of Confidential Discussions with the Mediator?

What is the principal procedural tactic one adopts at mediation? What is the principal procedural tactic one adopts at mediation?

Ending and subsequent offers

1. Large commercial litigation is expensive and time consuming.

2. If a trial is required, then the parties should get through the interlocutory steps and garner a trial date at the earliest opportunity.

3.If mediation in such litigation is apt do it early or late.

4. If they do otherwise, parties should be prepared to bear the costs of litigation, or part of them even if successful.

5. Mediation, like trial, behoves thorough preparation.

6. Proper selection of mediator, exchange of outlines, disgorging information as to costs, together with consideration and prior drafting of compromise agreements are critical elements of mediation of large disputes.

7. Take your critical witnesses to the mediation.

8.Erosion of confidence in an opponent’s case is what mediation (and indeed litigation) is all about - by your arguments, use your opponent’s lawyers against their client.

9.Be prepared to bite the bullet and reduce the issues and trial length after having the benefit of unsuccessful mediation - courts ought expect this and tailor costs orders accordingly.