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Preparing for the mediation

These are the main steps:

  • Agree to mediate
  • Agree date place and venue of mediation
  • Agree the terms of the Agreement to Mediate
  • Agree and send to the mediator a Mediation Bundle

This is usually prepared by the claimant.
In those unusual cases where it is not possible to agree a bundle the claimant should send a bundle and an index to the mediator (copying the index to the defendant). The defendant can then, if it wishes, send the mediator a bundle of additional documents, with an index (and copy the index to the claimant).

The purpose of the bundle is to provide the mediator with the gist of the case, the key issues and facts together with the negotiating history. It is not the role of the mediator to read and assess every document and piece of evidence. There is no need to send a trial bundle.

A typical bundle might contain:

  • a list of all the people attending the mediation;
  • any pleadings, if issued, but only the latest version of any amended document;
  • the latest schedules and counter schedules, if relevant;
  • any relevant witness statements;
  • expert reports;
  • copies of the key parts of documents such as medical records or other documents of relevance; (The mediator will usually prefer a 1 page bullet point summary of the medical records and copies of a few of the key pages rather than a full set of records.)
  • any plans, photographs or media of relevance;
  • any surveillance evidence;
  • details of any offers;
  • details of costs to date and to trial if the matter does not settle (these can be non-binding estimates or schedules); and
  • anything else that you would like the mediator to have read in advance.

Prepare a negotiation strategy

A mediation is a negotiation. It is helpful to prepare a strategy for the negotiation. Doing so will help you stay in control of the negotiation and not simply react to offers made by the other side. This will involve a risk assessment of your case (and preferably your opponent’s case) and identifying from that assessment, as a minimum:

  • Where you will start the negotiation;
  • Your walk away point; and
  • How you will move between those two positions during the negotiation.


Your strategy may need to change on the day due to new information received so it will be adaptable. Failing to prepare a strategy will, at best, add considerable time to the mediation and at worst is likely to result in no settlement and little progress in resolving the claim.

Prepare a Position Statement(s)

Most mediators will ask both parties to prepare a written position statement in advance of the mediation. Your negotiation strategy is the foundation of your position statement.

You can send an “open” Position Statement, which will be sent to the mediator and the other party or a confidential Position Statement, for the mediator’s eyes only, or both. An open Position Statement will usually include some or all of the following:

  • The background of the dispute. It is useful to cross reference the pleadings but it is not necessary to repeat them.
  • The main issues still in dispute and your view on those issues and your thoughts on the other side’s views.
  • The history of any offers and counter offers.
  • Your suggestions as to how the dispute might be resolved.


This Position Statement is not only for the benefit of the mediator. It provides you with a means of communicating with the other party and is the first step of your task in persuading the other party to your point of view. It should be crafted accordingly and disclosed in sufficient time for it to have an impact. The worst time to serve a Position Statement is on the morning of the mediation.

You normally exchange Position Statements with the other side.

The purpose of a confidential Position Statement is to provide the mediator with further useful information about the dispute, or the people involved, which you do not wish to share with your opponent at this stage. Tell the mediator of your views about the barriers to settlement, what you think the mediator will need to concentrate on and why.

Consider, as an extension to, or as an alternative to, a confidential Position Statement asking the mediator for a confidential telephone discussion prior to the mediation. The mediator will be obliged to tell the other party that a discussion has taken place, but not the content of it.

Prepare an Opening Statement

Mediations often start with a joint meeting of all parties. The mediator will usually invite each side to address the other side - the “opening statement”. As with the Position Paper, the foundation for your opening statement is your negotiation strategy. The opening statement is often delivered by a legal representative but in personal injury and clinical negligence claims it is not uncommon for the claimant themselves to speak. Often they will take this opportunity to explain what impact the injuries and or consequences of alleged negligence have had on their lives.

The opening statement is an opportunity to start the negotiation in the right way. However, defendants should always appreciate the claimant may well be nervous and will not initially trust them as they are “the other side”, the person who is preventing settlement of their claim. The following are likely to help defendants set the right tone:

  • Speak directly to your opponent, not the mediator;
  • Explain in simple language what your role is;
  • Show empathy for their injuries/medical position without being patronising or insincere;
  • Show that you have listened to any comments they have made in their opening statement;
  • Explain your objective is to try and find a resolution of the dispute.


Both sides should avoid the following:

  • Treating the session like a trial opening;
  • Using legalistic words or phrases;
  • Ridiculing or diminishing the other side’s case;
  • Using emotive words like “exaggerated”, “dishonest”, “malingering”;
  • Abusing or rubbishing the other side’s legal advisers.

Prepare the client

The client needs to be fully briefed about the process of the mediation and consulted about the negotiation strategy.

The role of the client at the mediation should be discussed and agreed.

Issues to be discussed include:

  • Client’s overall objectives.
  • Has the client been advised about the current position of the case, prospects of success, risks and costs?
  • Does the client agree to participate in the mediation?
  • Will the client attend a joint open meeting?
  • Is the client prepared to speak at such a meeting?

Have a pre mediation telephone discussion with the mediator

Many mediators will be prepared to have a confidential telephone discussion prior to the mediation as part of the preparation. It is a useful way of getting to know the mediator and to find out the approach that is likely to be taken on the day.


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