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Chapter

Cover A Practical Approach to Alternative Dispute Resolution

15. Preparation for the Mediation  

This chapter identifies the procedures of preparing for mediation. If the parties to the dispute have appointed lawyers, then the lawyers will undertake most of the preparatory work that is required for a mediation. A lawyer will often be required to describe what happens in the mediation process, select and agree the appointment of a suitable mediator, agree the terms of the mediation agreement, and locate and book (if necessary) the venue for the mediation. They are also required to sort out preliminary ground rules for the mediation with the mediator and the other parties such as the documents that need to be prepared and (if necessary) exchanged, decide whether expert evidence should be sought on any issue in advance of the mediation, and who should attend the mediation on behalf of each party. The lawyer who is instructed to attend the mediation will also need to prepare thoroughly for it and this will include consideration of the negotiating strategy and tactics they will employ during the mediation.

Chapter

Cover A Practical Approach to Alternative Dispute Resolution

16. The Mediation Process  

This chapter discusses the mediation process, which is flexible and can be tailored to the needs of the parties. When the mediation begins and ends can often only be ascertained by examining the intention of the parties from the facts and circumstances of the case. A typical mediation will go through four stages: opening, exploratory, bargaining, and settlement. It will take place in a mixture of joint open meetings and private separate meetings of the parties. First, the opening statement by the parties should be addressed to the other side. The mediator will then help the parties to work through deadlock in the bargaining phase. Ultimately, the advocate in mediation should harness the mediator's skills and work with the mediator to further their client's interests.

Chapter

Cover A Practical Approach to Alternative Dispute Resolution

17. Reaching a Settlement  

This chapter focuses on key aspects of the final stage of the negotiation or mediation process: reaching a settlement. An agreement reached through mediation or negotiation is essentially a contract. As such, contractual principles will apply, and oral or email exchanges may be binding. To avoid problems, it is important to be clear about process. It is also necessary to check the coverage and detail of a potential settlement fully. A potential agreement may be undermined by a failure to agree detail as the settlement process goes forward, or due to tactics in the final stages. Ultimately, it is very important to finalize the terms of an agreement at the end of the settlement process, perhaps building in terms to assist enforcement or implementation.