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Preparing for Mediation
This document is designed to assist parties and their counsel prepare for the mediation
session. Counsel, please direct your clients to this page or print this page and forward to your
clients.
Agreement: Everyone should read the Mediation Agreement as soon as possible. If there are
any concerns or questions they should be raised as soon as possible. An original copy of the
Mediation Agreement will be signed at the start of the mediation session and photocopied
counterparts will be available to everyone wishing a copy.
Confidentiality: In anticipation of the mediation session it is understood that the confidentiality
and without prejudice provisions of the Mediation Agreement will apply so as to cover all
preparatory communications.
Parties Attending: The parties should notify each other, with a copy to me, of the names of the
persons who will probably be present at the mediation. These details need not be regarded as
inflexible, but it is desirable for the parties and for me to know who is likely to be at the session.
Preliminary Session: If anyone believes it would be helpful, I will be happy to facilitate a
preliminary meeting or conference call involving legal counsel and myself (as well as any other
parties wishing to participate). I will arrange the call and the agenda will include: (a) overview of
issues; (b) time, location and logistics; (c) whether I will need to do any premediation on site
inspections or interview; (d) whether any experts or consultants can assist the process; (e) any
legal incapacities; (f) need for translator or other special arrangements; (g) possible conflicts of
interests or apprehension of bias; (h) such other matters as anyone may wish to discuss.
Please contact me if you believe such a meeting would be helpful.
Process: The session will begin at 10:00 AM, unless otherwise agreed. At the commencement
of the mediation I shall make an opening statement outlining the mediation process. Thereafter
I would like each party, or their counsel, to make a short presentation outlining their perspective
on the dispute and their sense of the barriers preventing settlement. From these presentations
we will draw up an agenda, identifying the issues we will need to talk about. The length and
scope of each party's initial presentation may vary in particular mediations.
Location: The premises needed for the mediation are (i) a boardroom or meeting room large
enough to accommodate all persons attending, and (ii) a separate room for the representatives
of each party in the reasonably near vicinity of the meeting room. Frequently a solicitor's office is
able to provide these facilities. Alternatively, arrangements can be made in a neutral facility. If
you have not already done so, please let me know your preference in this regard.
Litigation Forecast: Experience has shown that it will be of assistance if each party brings to the
mediation for its own use and for my confidential information a litigation forecast in the form
attached.
Confidential and Privileged - Litigation Forecast
For Use at Mediation Session
Estimate of the likely date for the commencement of the trial of this matter:
Estimate of the length of the trial:
Amount already expended on costs (including experts' reports):
Estimate of the further costs which will be expended in carrying the litigation through to finality
(excluding costs of appeals):
Particularized estimate of the practical results on the party's best case - i.e. on the assumption
that the party succeeds totally on all issues and recovers party and party costs from the other
party; interest, where applicable, and rates should be taken into account:
Particularized estimate of the practical result on the party's worst case - i.e. on the assumption
that the party loses totally on all issues and is liable to pay party and party costs to the other
party; interest, where applicable, and proscribed rates should be taken into account:
It is significant to note that this form does not require an estimate of the likely outcome. The
object of the mediation is to make a far better informed appraisal of the total dispute situation in
the light of the wider knowledge and understanding gained in the mediation discussions.
This document is designed to assist parties and their counsel prepare for the mediation
session. Counsel, please direct your clients to this page or print this page and forward to your
clients.
Agreement: Everyone should read the Mediation Agreement as soon as possible. If there are
any concerns or questions they should be raised as soon as possible. An original copy of the
Mediation Agreement will be signed at the start of the mediation session and photocopied
counterparts will be available to everyone wishing a copy.
Confidentiality: In anticipation of the mediation session it is understood that the confidentiality
and without prejudice provisions of the Mediation Agreement will apply so as to cover all
preparatory communications.
Parties Attending: The parties should notify each other, with a copy to me, of the names of the
persons who will probably be present at the mediation. These details need not be regarded as
inflexible, but it is desirable for the parties and for me to know who is likely to be at the session.
Preliminary Session: If anyone believes it would be helpful, I will be happy to facilitate a
preliminary meeting or conference call involving legal counsel and myself (as well as any other
parties wishing to participate). I will arrange the call and the agenda will include: (a) overview of
issues; (b) time, location and logistics; (c) whether I will need to do any premediation on site
inspections or interview; (d) whether any experts or consultants can assist the process; (e) any
legal incapacities; (f) need for translator or other special arrangements; (g) possible conflicts of
interests or apprehension of bias; (h) such other matters as anyone may wish to discuss.
Please contact me if you believe such a meeting would be helpful.
Process: The session will begin at 10:00 AM, unless otherwise agreed. At the commencement
of the mediation I shall make an opening statement outlining the mediation process. Thereafter
I would like each party, or their counsel, to make a short presentation outlining their perspective
on the dispute and their sense of the barriers preventing settlement. From these presentations
we will draw up an agenda, identifying the issues we will need to talk about. The length and
scope of each party's initial presentation may vary in particular mediations.
Location: The premises needed for the mediation are (i) a boardroom or meeting room large
enough to accommodate all persons attending, and (ii) a separate room for the representatives
of each party in the reasonably near vicinity of the meeting room. Frequently a solicitor's office is
able to provide these facilities. Alternatively, arrangements can be made in a neutral facility. If
you have not already done so, please let me know your preference in this regard.
Litigation Forecast: Experience has shown that it will be of assistance if each party brings to the
mediation for its own use and for my confidential information a litigation forecast in the form
attached.
Confidential and Privileged - Litigation Forecast
For Use at Mediation Session
Estimate of the likely date for the commencement of the trial of this matter:
Estimate of the length of the trial:
Amount already expended on costs (including experts' reports):
Estimate of the further costs which will be expended in carrying the litigation through to finality
(excluding costs of appeals):
Particularized estimate of the practical results on the party's best case - i.e. on the assumption
that the party succeeds totally on all issues and recovers party and party costs from the other
party; interest, where applicable, and rates should be taken into account:
Particularized estimate of the practical result on the party's worst case - i.e. on the assumption
that the party loses totally on all issues and is liable to pay party and party costs to the other
party; interest, where applicable, and proscribed rates should be taken into account:
It is significant to note that this form does not require an estimate of the likely outcome. The
object of the mediation is to make a far better informed appraisal of the total dispute situation in
the light of the wider knowledge and understanding gained in the mediation discussions.
