Civil Engineering Reference
In-Depth Information
CHAPTER ELEVEN
Conclusion - How to Win at Mediation
This concluding chapter is intended to summarise the key points of the
previous chapters, highlighting how to use the mediation process - and
the mediator - to best effect. Everyone can win in mediation, if they use
it well.
11.1
Prepare well
Good preparation means entering the mediation with confidence - con-
fidence in the process and confidence in the strategy to use it to best
advantage. In addition to being fully conversant with the documents,
good preparation includes carefully choosing the team to attend the me-
diation (decision maker, lawyer advisor and few others) and each being
fully briefed on roles and who says what and when. Good preparation
includes carrying out a detailed risk analysis including the alternatives
to, and cost of, not settling in the mediation. It also means preparing
to adopt, if only for a day, an approach that is different from the legal
rights-based negotiation.
11.2
Chose the right mediator
There are a lot of mediators in the commercial market, some of
whom have had minimal training and who are 'accredited' by right
rather than ability. It is worth investing time in researching proposed
names to ensure that the mediator chosen is not selected just because
someone knows them, or has used them before. Experienced lawyers
usually group their mediator database according to their client's per-
ceived need - head-banger, good people skills, lawyer/non-lawyer,
evaluative/facilitative, sector expertise and so on. The most suitable
mediator may be all of these, or none. A mediator with good people
skills does not have to be a softie. The best mediator would generally be
someone with experience - and therefore someone who had an estab-
lished reputation - who is a good negotiator and who can see the 'big
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