Civil Engineering Reference
In-Depth Information
representing a party in a mediation where I had been appointed - if that
were an issue I would be conflicted out of half the mediations that I do!).
4.4.8
Documents
The mediator will usually give a guide to the amount and type of
documentation required for the mediation (see the confirmatory email).
Most will require a summary - probably no more than five to ten A4
sheets covering
a brief history of the dispute and the people involved
the key issues in dispute
details of the claims/counterclaims and parties' respective positions
matters that are agreed/not in dispute
details of any settlement discussions and offers
suggestions that may help in achieving a settlement
This summary will normally be exchanged simultaneously between par-
ties and the mediator. Lazy lawyers will often send the mediator a copy
of the pleadings in lieu of the summary. Pleadings are not an adequate
substitute because they deal with the dispute in a legal way, using legal
language.
It will be seen from the above that the summary is in part a more gen-
eral overview of the case but also covers many matters outside the scope
of any pleadings. The summary is also a very useful way of getting the
lawyers, and parties, to focus on what is really at the root of the prob-
lem - something that often gets lost with time as the detail takes over.
The tone of the summary document is important. It should recognise
that mediation is ultimately a cooperative process and the summary
provides the opportunity to start that process. Just because a party feels
that their case is strong does not mean that they need to rubbish the
other side's case in their summary. A clear, brief summary covering the
areas listed above and recognising that this is a joint problem to which
there needs to be a joint solution is the type of document that is most
helpful to the mediator and most encouraging to the parties.
Case study
In a construction dispute involving the erection and fitting out of
agricultural buildings the defendant's mediation summary was pre-
pared by counsel. It contained phrases such as:
52
