Civil Engineering Reference
In-Depth Information
parties of their alternative versions of the truth. The first open session is
a unique gathering - the same people will not have gathered together
before to discuss the dispute, and although the lawyers will each have
anticipated the other side's approach, they will not have heard it from
the people who are experiencing the problem, and neither will they have
heard their legal and commercial interpretation of the facts.
The opening session provides a great opportunity to inform and per-
suade, and it is worth preparing for it well. This is particularly important
if the party - or others who might be in the witness box if the dispute
goes to trial - is nervous or unused to speaking in public. Often lawyers
see mediation as an opportunity to check how the 'opposition' perform,
and their willingness to settle in mediation, or to risk court, will be
influenced by what they see and experience in the mediation. A dry
run would enable the team to recognise the reality of this and to coach
parties to give their best performance in the mediation.
Case study
Parties in a construction mediation gave great importance to their
experts' reports, which (of course) gave totally different interpre-
tations of the situation. Both experts attended the mediation and
it became very obvious that one of the experts would not perform
well if examined in the witness box. For some reason the lawyer
had not met the expert before the day of the mediation and so this
had not been appreciated before the mediation - a situation that
was undoubtedly due to poor preparation. Settling in the media-
tion became an imperative for this party, and they did. (Ironically,
this goes against what I said earlier about not bringing experts to a
mediation, although the mediation was likely to have settled any-
way - because most do - and it might well have been on the same
terms.)
4.4.14
Pre-mediation meeting
In England it is unusual for parties to request a pre-mediation meeting.
In Scotland, however, it has become the custom and the advocates for
this early meeting (which is generally only one or two hours long) say
that it pays real dividends on the day of the mediation:
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