Civil Engineering Reference
In-Depth Information
Be clear and confident about the BATNA (best alternative to a nego-
tiated agreement). Know what alternatives there are to settling at the
mediation.
Be prepared to tell his/her story and not leave it to the lawyers.
Mediation gives a day in court that is much better than court itself.
See the dispute as a joint problem that needs a joint solution. This
means being prepared to hear the other side's story and cooperating
in reaching a settlement to which they can also say 'Yes'.
It is often an advantage when the decision maker is someone who is
not directly involved in the dispute itself. Mediations are settled through
commercial negotiation, and being able to bring a detached and dispas-
sionate approach to important decision-making is a real asset. This does
rather conflict with the principles that mediation offers a day in court
and that it provides an opportunity where emotions can be vented.
However, it has to be said that the larger the firm, usually the less per-
sonal the issues become for the decision maker, and so the day in court
and emotional expression tend to be more relevant for the smaller and
more personal disputes. That is not to say that people in larger firms do
not get personally involved in disputes but rather that larger firms are
usually able to offer decision makers who can be more removed from
the centre of the dispute.
8.2
Legal advisor
Invariably parties in commercial mediations have legal advisors present.
By that I mean solicitors - and often more than one. Most commonly
it is a partner (to give authority to the proceedings) with an assistant
(who has done the preparation work) and often a trainee (to get the
experience). It is invariably of benefit to have solicitors at the mediation.
Very few are negative or obstructive. Most encourage settlement and
many are beginning to use mediation effectively. But it is a different
forum to litigation and requires different skills. It should not be a matter
of transferring the litigation approach into the mediation arena. The
solicitor's role in a mediation should include the following:
Supporter, not leader, particularly in the later stages of the mediation.
Orchestrator - making it clear who does what and when.
Analyser - helping parties to assess and reassess the risks and likely
outcomes.
102
