2. Mediation Advocacy - Preparing a Client for Mediation
Mediator Advocate / Representative
discusses case privately with
Mico Inc.
Mediation Advocacy Skill Tip
The starting point in preparing for a mediation is an understanding of the client’s commercial objectives. A mediation strategy can then be constructed to achieve these.

3. Mediation Advocacy - Preparing a Client for Mediation
Mediator Advocate / Representative
discusses case privately with
Mico Inc.
Mediation Advocacy Skill Tip
At all times, the relative merit of an agreed solution needs to be compared with the merits of proceeding with litigation/arbitration (often referred to as a client’s BATNA).

4. Consideration of an opponent’s business objectives and needs is unlikely to feature in preparation for an arbitration hearing. But it is an essential component in anticipating what sort of agreement might be achievable through mediation.

5. Considering how to make the other party find your own client’s proposals attractive is key – this may be done by emphasising litigation risk if no agreement is reached, but it may also be by packaging those proposals so that they meet the other parties’ needs as far as is possible.

6. A thorough pre-mediation risk assessment is needed to enable a client to take clear decisions about its settlement parameters.

7. This is basic negotiation strategy – the other side needs to believe that your client has options

8. Resist the temptation to save important information for disclosure on the mediation day itself. It can be difficult for any party to take into consideration and act on brand new information. If the information is important, then it is usually preferable to disclose it in advance of the mediation.

9. Use of language is key – overly aggressive language can often be counterproductive.

10. A genuine concern that the other side has acted in bad faith is likely to prove an obstacle to further collaboration – so this concern needs to be addressed head on.

11. Expressions of regret can be very powerful – they are not the same as an acceptance of fault or responsibility.

12. The client representatives themselves have an important role to play as advocates in a mediation – this is very unlikely to be the case in an arbitration or litigation hearing.

13. Choice of language is even more important during the mediation session itself. If what you want to say is not going to be constructive, don’t say it!

14. Settlement authority can be complex with large organisations
Settlement authority can be complex with large organisations. It is important for counsel to understand how this works within their client’s organisation.

15. You can take the chance to be proactive in structuring the mediation process in a way which suits your client’s objectives.