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What is KnowHow?
Detailed Practice Notes written by our Professional Support Lawyers, guiding you through the key issues in each topic.
Mediation documents - overviewMediation agreements
The mediation agreement will often deal with:
an agreement by the parties to take part in a mediation to try to settle the dispute
a clause that the parties may leave the mediation at any time
the identity of the dispute that will be subject to the mediation
the method by which the mediator and any assistant mediator are appointed
the place and time of the mediation
confirmation that the discussions are without prejudice
The mediator may wish to exclude his liability for anything done in connection with the conduct of the mediation. The agreement is signed at the start of the mediation at the joint meeting with the mediator.
For more detail see Mediation agreements.
Drafting the opening statement
At the start of the mediation, the mediator will usually convene a meeting of all parties. The parties will be given an opportunity to make an opening statement. This will not normally last more than 30 minutes. Its objectives are:
to influence the other party's ultimate decision maker
to inform the mediator about the dispute
to give your client his/her 'day in court'
The opening statement can be made by the client, the lawyer or an expert witness.
Issues to be considered when drafting the opening statement include:
weaknesses of the other side's case
commercial interests underlying your client's position
acknowledging the other party's position
the emotional / political / social sides of the dispute
offers and concessions you are prepared to make in the negotiations
possible settlement options
strengths of your own case
any areas in which you are not prepared to negotiate
For more detail see Drafting the opening presentation.
Case summary and supporting documents
The case summary will be exchanged with the other parties in advance of the mediation, normally a couple of weeks before. It will generally be between two and ten pages long and may cover:
the factual background of the dispute
the key issues in dispute
key arguments on quantum
details of prior offers and/or negotiations
The summary is usually accompanied by a bundle of supporting documents, agreed by the parties.
For more detail see Case summary and supporting documents.
Mediation: settlement and enforcement
Although the outcome of a mediation itself is not binding on the parties, they are likely to want to make the outcome binding by recording its terms in a legally binding contract - a settlement agreement.
If litigation is under way, the action will need to be stayed. This is usually done by applying for a Tomlin Order.
For more detail see Mediation: settlement and enforcement.
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