“Inside mediation: A young-ish mediator’s perspective” (April, 2025)

Contents:

1.      Mediation - distinguishing characteristics

2.      Preparation for mediation

3.      Mediation - on the day

(1) Mediation – distinguishing characteristics

Win or lose  

· Some commentators view mediation as a process for achieving “win-win” outcomes, while others see it as requiring each party to “take a hit” or “share the pain” to reach a settlement — a kind of “lose-lose” compromise.

· I prefer to say that mediation isn’t about winning or losing. Instead, mediation is about the parties working through a process together, to see whether a settlement can be achieved that better serves their respective interests than the available alternatives. If the parties are all elated after reaching a settlement at mediation, that’s a terrific bonus to be celebrated.

Audience

· As a legal representative, it’s important to keep front of mind that the target audience at mediation is not a judge/arbitrator, or even the mediator, but the other party or parties.

· Given the target audience, a collaborative approach and less adversarial tone are well suited to mediation, with interpersonal skills playing a crucial role. This is how successful deals are struck in the commercial world — so why not apply the same principles to dispute resolution?

Collaboration & compromise

· Settlement at mediation typically requires a degree of collaboration and compromise.

· Collaboration in mediation doesn’t require abandoning your case or making unnecessary concessions. A lawyer must still act in his/her client’s best interests and advocate accordingly — but should do so while working constructively with other parties throughout the mediation process.

· Compromise is sometimes viewed negatively by litigators, associated with unprincipled or suboptimal outcomes such as “splitting the baby” or “rough and ready” settlements. However, when compromise is well-considered, grounded in principle, and strategically used to achieve a desirable outcome for the client, it should be seen not as a weakness, but as a valuable tool in effective dispute resolution.

Flexibility & creativity

· The relief or remedies available through a court or tribunal can be limited in scope and blunt in effect, especially when compared to the flexibility and creativity that can be built into a negotiated settlement.

· At mediation lawyers should be imaginative when it comes to exploring solutions and think outside the standard litigator’s toolbox.

(2) Preparation for mediation

Document exchange/discovery

· Exchanging relevant documents and information before mediation is crucial to ensure all parties are well-informed and have the best opportunity to reach a settlement.

· Taking another party by surprise at mediation with “new” documents or information is unlikely to be helpful or a good tactical move.

· If discovery has not yet occurred (often cited by lawyers as a reason to delay mediation), consider incorporating agreed discovery steps into the mediation timetable to enable earlier resolution.

Issues list/position papers

· Joint issues lists or short position papers are valuable not just for the mediator, but also help parties clarify the issues and better understand each other’s positions.

· The importance of clearly defining and understanding the issues in dispute is reinforced by the new High Court Rules, set to take effect in early 2026.

Openings

· When preparing an opening statement, remember your audience and who you are trying to persuade.

· A mediation opening should not be the same as opening submissions in court or arbitration.

· A good mediation opening will:

o Help defuse situations that are often tense at the outset of the day. Acknowledging the challenges or frustrations experienced by others can be a powerful gesture and one that often goes a long way toward unlocking resolution.

o Identify the key issues and positions in a succinct and easy to follow way, without too much legal jargon — it is unlikely that everyone in the room will have a legal background.

o Confirm a collaborative approach and what it is that the party hopes to achieve at mediation.  If possible, identify common interests between the parties.

o Include constructive input directly from the party, rather than having the legal representative speak exclusively. This helps humanise the process by reminding everyone that it’s about the parties, not just the lawyers—and avoids the perception that parties are hiding behind legal counsel.

Risk & reward  

· As with trial or arbitration, preparation is key for mediation.

· For a more informed mediation process, it is beneficial for lawyers to complete a thorough risk and reward evaluation, including a costs analysis, before mediation. Sharing these insights with clients helps ensure that parties enter mediation with realistic expectations and an understanding of potential litigation risks and benefits.

Settlement agreement

· To save time and reduce pressure on the day, one party should prepare and circulate a draft settlement agreement template ahead of the mediation.

Pre-mediation conference

· Legal counsel should make full use of private pre-mediation conferences with the mediator.

· These confidential conferences are an opportunity to clarify process, test ideas and provide useful information to the mediator about matters such as, personality types, what’s important for the client and hurdles to settlement.

Experts

·If possible, expert conferences should be held prior to the mediation to identify and narrow issues in dispute. This will help avoid the mediation turning into an expert conference for a big chunk of valuable mediation time.

(3) Mediation - on the day

Interpersonal skills, listening & framing

· During party openings and general dialogue in joint sessions, comments should be directed to the other party or parties, not the mediator. This reinforces that mediation is collaborative and about a conversation between the parties.

· It takes more than one party to achieve a settlement and counsel will need to consider the interests of other parties as well as their clients.

· Lawyers should remain mindful of the emotional dynamics in the room. Personal attacks should always be avoided, and counsel should aim to “disagree well” as Geoff Sharp aptly phrases it.

· Active listening is essential. It helps build a clearer understanding of others’ perspectives and positions, even if you ultimately disagree with them.

· Framing and constructive phrasing are as important for lawyers as they are for mediators. Lawyers should consider how to present their points in a way that is both persuasive and palatable to other parties.

· Before responding, consider whether what you're about to say will move the matter toward settlement. If not, consider whether it can be more constructively framed, or whether it needs to be said at all. In some cases, silence in response to an inflammatory remark can be the most effective choice.

Mediator

· The mediator is a valuable and often underutilised resource for the parties.

· Legal representatives should use mediators, for example, to:

o   Explore risks, alternatives, settlement options and how to deliver offers/rejections (i.e., allow the mediator to reality test and/or coach).

o   Deliver difficult messages in a less confrontational fashion.

o   Probe unrealistic expectations and views on merits and weaknesses.

Negotiation

· In negotiations at mediation, it can be helpful for parties to:

o   Consider the benefit of anchoring negotiations by making the first (reasonable) offer.

o   Explain/justify offers or rejections.

o   Make concessions in stages. Don’t give everything away at once.

o   Link concessions to a reciprocal move (package deals) and highlight the value of concessions.

o   Use conditional proposals to create options for mutual gain.

Decisions

· Self-determination is a core principle of mediation. Unlike determinative processes, mediation empowers the parties to decide for themselves whether to settle, and, if so, on what terms. This autonomy is central to the process and its effectiveness.

· Mediations can be pressure cookers and often extend beyond regular working hours. Legal counsel, with the assistance of the mediator, need to look after their clients by making sure that they have sufficient breaks and access to refreshments, and are not too tired, emotional, or pressured (and thereby lack self-determination) to be making important decisions. Nobody wants a client regretting entering a settlement (or not doing so) the next day.

· It can be worthwhile to keep mediation and/or any offers open for a period after a long day, rather than making significant decisions when parties are fatigued. Allowing time for reflection may lead to better outcomes.