Civil Engineering Reference
In-Depth Information
Occasionally, but rarely, lawyers will want to amend the mediation
agreement or even use their own agreement. The mediator should re-
ally understand why this is necessary because the standard agreement
will have been used successfully many times and a change to/from the
standard could be dangerous. Worse, it could be a tactic by one lawyer
or party to gain advantage over the other.
Case study
A construction law firm produced their own mediation agreement
'based upon their experience over many mediations'. Essentially
the main difference from the standard agreement was the provision
that, if requested by one party, the mediator would give a recom-
mendation for settlement if the mediation was unsuccessful. This
actually took the pressure off the party to reach a settlement dur-
ing the mediation and their energy was devoted to influencing the
mediator to give a recommendation that was favourable to them.
In retrospect, if a clause is included in the mediation agreement re-
quiring (or requesting) the mediator to make a recommendation, it
should be at the request of all parties, and then only if the mediator
agrees.
Sending the agreement out early should mean that on the day it is just
a matter of the mediator getting it signed, which will usually happen
before the first joint meeting.
4.4.17
Risk analysis
It is essential that parties come to mediation having done a compre-
hensive risk analysis, so that they are fully aware of the alternatives to
settling in mediation, and the range within which they can confidently
negotiate. This analysis will inevitably change during the mediation but
it must be done beforehand and so provide a sound foundation for what
follows. At the very least the risk analysis should include:
Lawyer's percentage estimate of the litigation risk: What are the
best, worst and most likely outcomes if the dispute goes to court?
Of course, there is litigation risk even in the most certain cases. All
lawyers have stories about the most sure-fire case that went against
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