It is very often worth telephoning your mediator before the mediation day for an introductory discussion. All discussions with your mediator, including this one, are confidential between you (unless you chose to authorise disclosure of any matter).
Your mediator’s task is to provide a process, which is neutral, to enable the parties to explore the possibility of settlement of the issues between them in an effective way.
In order to facilitate the negotiation, the mediator will have to make judgments about how best to conduct that process. For example, he or she will consider whether or not it is likely to be advantageous to hold a joint opening session, and how to conduct that session. I recall one mediation where one party felt very intimidated by the other. Forewarned, I was able to diminish the concern by simple adjustments to the room plan and seating arrangements.
Your mediator can add value to the process by assisting you in formulating and responding to offers, and communicating those responses, in a way which has a positive impact on the negotiations. In order to do this, the mediator needs as full a picture of each side’s approach as possible.
In my experience, it pays to be very frank with your mediator about any concerns you have – whether or not they are technically part of the dispute. For example, lack of trust or personal animosity between parties can very much affect the process if not recognised. Another matter which it is helpful to communicate to the mediator early on is details of missing information, without which it may be hard to conclude a settlement.
In most mediations the parties will exchange position papers and copy them to the mediator. A separate frank, confidential assessment of the strengths and weaknesses of your position and that of your opponent for the mediator’s eyes only, can be very helpful to the mediator in planning the structure of the day.
In summary – please help us to help you.
Head of Dispute Resolution