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How To Prepare Effectively For Mediation

Posted: Friday, 4 January 2019 @ 13:43

The recent failure to announce the EU/UK agreement which never was on Monday 4th December illustrates some of the difficulties of Brexit negotiation and negotiations in general.

Much of the UK press have been critical of the UK Government and blaming it for things going wrong but is also worth bearing in mind the most difficult phase of the mediation is the end phase albeit here we are looking at end of the first phase of negotiations, before we move to trade talks. 

Thus it is hardly surprising there has been difficulty here. 

In my new book, and with my firm's mediation training, we look at the ways to effectively prepare for mediation which can help avoid some of these problems.

The most effective negotiators spend much more time than others in the preparation and this is often the difference.

This includes the following considerations for legal mediations(but these relate to the Brexit ones as well and serve as good principles):

Size of your mediation team.  Leaner & smaller teams work  A smaller team containing the person with the authority to settle is far more efficient than a larger one.  The real danger of having a larger team is that everyone wants to get their six pence in. The process will be significantly weakened if you do not have the person with the authority to settle.  

Make the right kind of preparation. Whilst it is correct that lawyers should focus on the law, ensure that you focus on the fact that this is a form of negotiation. A negotiator should  try to think beyond the law to see if there can be any commercial solutions, which can be of use to all the parties. In particular preparation is important at the opening statement and deciding what content should be in. You should be thinking about what your concessions will be.   ·        

Anticipation of the other side. One of the dilemmas to consider is how entrenched the other side is and how they will adjust their position. Sounds obvious but many parties become too inward bound.   

Authority to settle. It is an essential requirement of the process that all sides come to the mediation with authority to settle.  All persons who approve the settlement should attend the mediation so that they can see the dynamic, which effectively brings the settlement into play.   You need to have an agreement to mediate. Possibly the UK Government did not have that authority on Monday 5th.