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In Place of Strife

The Mediation Chambers

Making the most of the mediator

Mediation is a process of discovery, and a key aim is to discover whether the other party really wishes to settle and, if so, at what price. Is the opposing party genuinely coming to the mediation with a view to settle, and how should we shape our negotiating strategy?
It is unfortunate if this process of discovery is left to the late afternoon of a mediation. Most mediators will speak to the parties’ solicitors at least a day before the mediation starts. Amongst the questions the mediator might ask are: what are the barriers to settlement, what do you think the other side is looking for, and in what area is your client looking to settle? A candid confidential exchange with the mediator, before the mediation even starts, puts him or her in the best position to probe the thinking of the other party. Without that exchange the mediator lacks some of the information necessary to gain an understanding.
So ask not – is the other side really minded to settle? – without at least giving the mediator the information which might enable him/her to probe the other side’s approach. Then at the mediation you are in a better position to test the water. Do not assume that every statement of intent made at an opening session should be taken at face value. Properly informed a good mediator can help you discover the reality.

Mediator: Charles Flint

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