Advising and Representing Clients at Mediation

1OVERVIEW
1.1Introduction
1.2Who are the representatives?
1.3What is the representative’s role?

2WHEN AND HOW TO USE MEDIATION
2.1Introduction
2.2Alternative dispute resolution
2.3How is mediation different?
2.4Does mediation really work?
2.5What the client can expect from mediation
2.6What are the advantages for the clients?
2.7Uses of mediation
2.8Other ways of using mediation
2.9Timing of the mediation
2.10Conclusion

3PERSUASION AND COMPULSION
3.1Introduction
3.2Mediation theory
3.3Mediation practice
3.4Halsey and refusal of mediation
3.5Responding to a Halsey letter to say no
3.6Contractual obligations to mediate
3.7Can I leave a mediation?
3.8Conclusion

4CONFIDENTIALITY AND LIABILITY
4.1Introduction
4.2Without prejudice rule
4.3Getting past the without prejudice rule
4.4Is there mediation privilege?
4.5Mediation confidentiality agreements
4.6Settlement agreements
4.7Protection of the mediator
4.8Proceeds of Crime Act 2002
4.9EU mediation and the Directive
4.10Liability of the mediator
4.11Professional adviser liability
4.12Conclusion

5MEDIATOR SELECTION
5.1Introduction
5.2Where to look for a mediator
5.3Essential questions to ask about a mediator
5.4Mediator qualifications
5.5Complaints and conduct
5.6Mediation style and method
5.7Mediator fees
5.8Who do I choose?
5.9Arguing about the mediator
5.10Mediation agreement
5.11Venue selection
5.12Conclusion

6PHYSICAL PREPARATION – POSITION PAPERS AND BUNDLES
6.1Introduction
6.2Is a position paper essential?
6.3Do you need a mediation bundle?
6.4Less is more
6.5Conclusion

7MENTAL PREPARATION I – PRE-MEDIATION ANALYSIS AND MEDIATION STRATEGY
7.1Introduction
7.2Rebalancing
7.3Purpose and preparation
7.4Do lawyers really want to settle?
7.5What mediation expects from the client
7.6Four topics that must be considered
7.7Mediation strategy – know your settlement
7.8BATNAs and WATNAs
7.9Pre-mediation analysis
7.10Know your client
7.11Know yourself – cognitive biases, heuristics and flaws
7.12Conclusion

8MENTAL PREPARATION II – NEGOTIATION TACTICS
8.1Introduction
8.2Negotiation – practice v theory
8.3Three things that always crop up – money, deal breakers and the unexpected
8.4Negotiation tactics
8.5Offers and the party’s role
8.6Finding the deal zone
8.7Conclusion

9MEDIATION DAY
9.1Introduction
9.2Mediation stages and timetable

10MEDIATION REPRESENTATION
10.1Introduction
10.2Can clients represent themselves?
10.3Who should represent the client?
10.4Does a representative need to be legally qualified?
10.5Key requirements of a representative
10.6Three roles of a representative
10.7Making peace is a co-operative process
10.8Three-stage process
10.9Conclusion

11AT THE END
11.1Introduction
11.2Settlement agreements
11.3Drafting the agreement
11.4What happens if the parties cannot agree?
11.5Costs
11.6After settlement
11.7Conclusion

12CONCLUSION – NEW TRENDS OLD PROBLEMS
12.2Emerging trends
12.3New approaches
12.4Old problems
12.5Key takeaways from this book


APPENDICES
1Mediation – Frequently Asked Questions
2Mediation Preparation Guidance Notes
3Preparing the Position Statement
4Confidential Checklist
5Further Reading
6Model Mediation Clause
7Precedent – Halsey Letter Proposing Mediation
8Precedent – Response to Halsey Mediation Letter
9Precedent – Response to Halsey Mediation Letter Based on Time

Index