Civil Engineering Reference
In-Depth Information
their lives. In those circumstances, who would want to make any
decision? I am not sure if such stories were true and, even if they
were, as this case was many years ago it is very likely that such a
culture no longer exists.) Amongst other things, this demonstrates
again the flexibility of the mediation process.
4.4.12
Who presents?
Most mediations start with an opening session with everyone present.
Most mediators will encourage the parties to use this time to tell their
story. Invariably the lawyers will lead, and outline the legal context of
the dispute, but the really important statement should be from the party.
It is, after all, their money/loss that is the cause of the dispute and they
are going to speak with much more feeling than any legal advisor, no
matter how eloquent that person might be. Most mediators will invite
everyone present at the mediation to speak but, unless they are prepared
for it, most parties will stay quiet and let their lawyers do the talking.
This usually changes as the mediation progresses, which is a strong
reason for keeping the opening session going for quite a long time (at
least one or two hours).
The practice should be for the party to speak out from the start. Me-
diation gives the parties their 'day in court' (see previous chapter); it is
they who know what really happened and it is they who feel strongly
about their version of the truth. Better therefore that the legal advisor
briefs their party to have their say, and to make sure that they make the
most of this unique occasion. Everyone else in the team can fill in the
gaps if necessary.
4.4.13
Dry run?
Part of the effective preparation for a mediation, particularly if the party
is to take the opportunity to have her or his say, may be to have a dry
run. Usually the legal advisors and their clients will have a conference
on one of the days before the mediation date, so why not do a practice
run of the opening statements, critiqued by the rest of the team? It means
that the balance between legal and commercial emphasis can be agreed,
and that everyone can make the best of the opportunity that the opening
session provides to show strength of feelings and to inform the other
58
